Issues about equality before the law, access to justice and guarantees for the individual are covered extensively in the Constitution. The Constitution provides for equality of all human beings before the law (art 3.), absolute reservation to the judiciary of measures restricting personal freedom with the exclusion of Public Administration’s competence, inviolability of one’s home and restrictions to the use of inspections, recordings etc. (art 13, 14, 15).

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Issues about equality before the law, access to justice and guarantees for the individual are covered extensively in the Constitution. The Constitution provides for equality of all human beings before the law (art 3.), absolute reservation to the judiciary of measures restricting personal freedom with the exclusion of Public Administration’s competence, inviolability of one’s home and restrictions to the use of inspections, recordings etc. (art 13, 14, 15). According to art 24 , legitimacy to act before the judiciary belongs to all human beings and defence in criminal proceedings must be provided for all, including those in a state of need. Art 25 states that a natural judge is preconsituted by law and nobody can be brought before a different judge if not before the one that in a general way is disposed by the law. According to art 27, criminal responsibility is strictly personal, until a definitive judgement is passed the indicted person is to be considered innocent and sanctions can not be inhumane and must led to the rehabilitation of the sentenced person. Finally, it is important to recall that art 28 provides for direct personal criminal responsibility for acts undertaken in carrying out their functions by functionaries and other agents of the State and Public Administration.

In immigration law, a large number of acts for which judicial recourse may be needed are administrative acts. In the Italian legal system recourse against administrative acts can generally be obtained from the administrative justice, in first instance from the competent Regional Administrative Court ("Tribunali Amministrativi Regionali or TAR). Administrative justice must conform to the same constitutional principles listed above as ordinary judges. Orders that impinge onto fundamental rights or freedoms of the individual, however, are to be appealed against before the ordinary judge even if they can be termed without ambiguity as administrative acts.

For instance, recourse against a decree of administrative expulsion of a foreign person, ordered by the Prefetto is to be appealed before the ordinary judge; against expulsion orders enacted by the Ministry of the Interior appeal can be presented to the TAR of the Lazio Region (the capital city’s competent Regional Administrative Court). One strongly criticised provision of law 189/02 has been the powers to immediately execute expulsion order sin most cases even pending an appeal, with the result that effective recourse against expulsion orders is strongly restricted, since expelled foreigners would have to sustain their appeal after being effectively already out of the country’s borders and through the Italian diplomatic and consular authorities.

The legal aid at expenses of the State is an institution also provided by the Italian Constitution (Constitution, art 24). the Italian State sustains the expenses relative to criminal proceedings (and in certain cases civil proceedings, for instance for compensation for criminal damages) for those people who have insufficient means to pay for counsel for their defence. Cases in which legal aid is granted are: criminal or military criminal actions, civil actions for the compensation for damages and the repayment stemming from crime; revision proceedings; execution proceedings; actions for the application of safety and bias measures; Surveillance Court cases. The applicant’s annual income (or family income) must not exceed a sum of about 9,000 euro.

It has to be noted that in the Italian legal system, a special Court is established for cases which concern minors. This Court has competence on many or most maters also related to foreign minors residing or de facto present in Italy. The jurisdiction of the Court has special features, such as the recourse to a mixed panel of lay and non-law judges, by recourse to social services for various phases of the procedures and by simplified and special procedures

In terms of discrimination issues, which are crucial particularly for access to basic services and integration of migrants, Act 40/98 (thereafter the Single Act) has introduced significant procedural simplification for those seeking redress against discrimination covered by the Act. 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."

Those claiming to be discriminated can apply in the place of his/her residence for an order of interruption of the discriminatory activity. There is no requirement for the victim to be represented by a lawyer, and the request must be filed at the court in person, which eases constraints about legal representation, in a country where the Legal Aid system is of difficult interpretation and which does not cover most areas outside the criminal law areas. The procedure during the hearing has to be informal. The judge can order interim urgent measures pending the hearing of the case, which are sanctioned by civil and criminal sanctions.

The provisions of the Act relating to discrimination have been applied in a handful of cases. Amongst those the cases of two associations of professional athletes to admit as members non-EU citizens, which severely impaired the possibility of such people to work in Italy as professional athletes.

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

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