Legal provisions against discrimination in the Italian legal system find their Constitutional basis in Art. 3 of the Italian Constitution. The presence of this article in the Constitution gives equality and non-discrimination principles the status of paramount values. Moreover Art. 3 provides a benchmark against which subsequent national and regional laws and regulations can be evaluated when the suspicion of discriminatory provisions exists. In this the action of judges is important, as on the basis of this article other non-Constitutional level national legislation has to be interpreted and can even be declared unconstitutional and disapplied.

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Legal provisions against discrimination in the Italian legal system find their Constitutional basis in Art. 3 of the Italian Constitution. The presence of this article in the Constitution gives equality and non-discrimination principles the status of paramount values. Moreover Art. 3 provides a benchmark against which subsequent national and regional laws and regulations can be evaluated when the suspicion of discriminatory provisions exists. In this the action of judges is important, as on the basis of this article other non-Constitutional level national legislation has to be interpreted and can even be declared unconstitutional and disapplied.

Italy has acceded to the UN International Convention for the elimination of all forms of Racial Discrimination. The International Conventions has been included in the national system through the adoption of Act 205/1993 which has integrated the Act of 1975 ratifying ICERD. Act 205/1993 provides for both civil and criminal sanctions for certain discriminatory and racists acts. In particular it provides prison sentences for acts of racist violence on ethnic, racial, national or religious grounds, of for incitement to such acts.

It has to be noted that, however, implementation of ICERD by Italy has been criticised as insufficient, including by CERD, the UN body responsible for monitoring the implementation by States of ICERD. In particular, in 1999, CERD chastised Italian State policy on Roma issues, including on issues relating to “pogroms” against Roma, which had recently fled to Italy as a consequence of conflict in former Yugoslavia.

The 1970 Workers’ Statute includes non-discrimianiton clauses for key rights, such as redres against dismissal, right to strike etc. (see section .5 on Migrant Workers).

Law 40/98 has introduced progressive provisions on discrimination in the workplace and elsewhere, which have significantly increased the chances to fight discrimination particularly against migrant workers. It defines and sanctions both direct and indirect discrimination which leads to “differentiation, exclusion, restriction or preference” based on race, colour, ancestry, national or ethnic origin, religious belief or practice. The act sanctions such acts when they have the aim or effect of “destroying or hindering the recognition or exercise –under equal conditions- of fundamental human rights in the political, economic social cultural fields as well as in any other public sector.”

The provisions of law 40/98 have been preserved in the new Single Act as integrated by law 189/02. The Act sanctions and regulates acts by public and private actors. In particular the Act enumerates without excluding other instances, instances where discrimination is to be sanctioned: for instance cases when civil servants do not perform an action in favour of a foreign citizen simply because of his/her race, racial origin, nationality; or when anyone unlawfully imposes less favourable conditions or refuses to provide work housing, schooling, training or access to social services to a foreign citizen legally residing in Italy simply due to his/her nationality, race, colour etc.; or when anyone imposes less favourable conditions or refuses to provide a foreign citizen with goods and services otherwise offered to the public, due to one of the other reasons. Anti-discrimination provisions, included in a text specifically regulating immigration and the right of immigrants, also applies to cases of discrimination against Italian citizens, other EU citizens, stateless persons.

The 1996 Data Protection Act includes provisions for the protection of data including those on religious belief, ethnic or racial origin. Such data are included amongst those data enjoying a heightened level of protection the “ sensitive data” . A National Authority has been instituted to monitor the implementation of the Act, which has heavy sanctions for transgression. The authorisation for collecting and processing such specially protected data must be granted by the National Authority which ahs so far very seldom given authorisation to this extent for ethnic and racial data. It has to be noted, however, that the power to vigilate of the Authority is very large but its means are very limited, so it is unclear to which extent the Act is being effectively implemented.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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