Fascicoli 2-3/2013
INDICE
Indirizzi di saluto
Maria Immordino, Presidente del Polo Universitario della Provincia di Agrigento – 177
Mons. Francesco Montenegro , Arcivescovo di Agrigento – 181
Antonio Scaglione, Preside della Facoltà di Giurisprudenza dell’Università degli studi di Palermo – 183
Dottrina
Antonio Carlos Wolkmer – La etica intercultural como fundamento del derecho humano a migrar – 189
Maria Immordino – La salute degli immigrati irregolari tra “certezza” del diritto e “incertezza” della sua effettività – 197
Alberto Zito – Beni primari, diritti sociali degli immigrati e ruolo delle pubbliche amministrazioni – 223
Fabrizio Fracchia – Integrazione, eguaglianza, solidarietà – 229
Estefânia Maria de Queiroz Barboza – La protezione normativa dei rifugiati in America Latina ed in Brasile – 241
Giovanni Francesco Tuzzolino – Lampedusa. Architetture per l’accoglienza – 261
Ornella Spataro – I diritti degli immigrati nella giurisprudenza della Corte Costituzionale – 269
Cristiano Celone – La “detenzione amministrativa” degli stranieri irregolari nell’ordinamento italiano e dell’Unione europea ed il diritto fondamentale di ogni persona alla libertà ed alla tutela giurisdizionale – 299
Roberta Teresa Di Rosa – La tutela dei minori stranieri alla prova delle politiche migratorie – 335
Licia Siracusa – Il diritto penale dell’immigrato: brevi spunti per una riflessione sul diritto penale della paura – 365
Elisa Cavasino – Le trasformazioni del diritto d’asilo – 385
Alessandro Riccobono – Immigrazione e lavoro al tempo della crisi. Aspetti problematici e prospettive di riforma del quadro normativo – 401
Alessandra Sciurba – Le violazioni dei diritti umani nel mercato del lavoro di cura prestato dalle donne migranti – 431
Giuseppe Puma – Convenzione europea dei diritti dell’uomo e non-refoulment in mare – 451
Rosario Papania – La tutela giurisdizionale degli stranieri tra sistema dualistico, giurisdizione “piena” del giudice ordinario e tendenze migratorie dalla giurisdizione amministrativa – 475
Laura Verduci – La condizione esistenziale del migrante e la privazione della libertà personale – 505
Vincenzo Cerulli Irelli – Politica dell’immigrazione e tutela dei migranti (una disciplina positiva in corso di evoluzione) – 519
Abstract
Intercultural ethics as THE FOUNDATION OF THE HUMAN RIGHT TO MIGRATE
by Antonio Carlos Wolkmer
The paper proposes to reflect on a redefinition of the Human Rights concept from a decolonized and intercultural perspective. This re-conceptualization should entail a new methodological rearrangement and an epistemological renovation of their content. It also suggests that, in order to meet the expectations and demands of new subaltern subjects and collective migration movements, the path of Human Rights evolution should be revisited from a critical, emancipatory and contextualized viewpoint. If understood in terms of resistance struggles and social practices of minority groups, fundamental human rights should offer a new ethical foundation for the theoretical development of
the right to migrate. MIGRANTS’ HEALTH BETWEEN THE “CERTAINTY” OF LAW AND THE “UNCERTAINTY” OF ITS EFFECTIVENESS”
by Maria Immordino
The current economic crisis seriously affects the implementation of the migrants’ right to health. This paper focuses on the Italian case, and after a review of the relevant legislation and constitutional jurisprudence, it investigates the many problems related to the effective realization of such right.
CULTURAL BACKGROUN D OF THE IMMIGRANTS AND PROTECTION OF THE SOCIAL RIGHTS
by Alberto Zito
The issue analyzes the protection of the social rights of immigrants with particular regard to the right to health. It addresses the question whether public authorities have to ensure in practice the enjoyment of social rights in accordance with the cultural background of the immigrants. If there are no additional costs, the government should be required to make performance so as to respect the cultural background of the immigrants.
Integration, Equality, Solidarity
by Fabrizio Fracchia
The essay analyses the matter of the integration not only from the point of view – as usually done by scholars – of rights, but stressing the idea of solidarity and the dimension of the duties. Particular attention is given to the conditions that a legal system might require in order to integrate foreign people. After examining the insufficient perspective both of rights and of the principle of equality, established by art. 3 Const., the article suggests that the art. 2 Const. might be considered as the legal provision that can support a new paradigm in the integration process, emphasizing aspects such as the bilateral duties and the personal commitments. In this context the article also examines the link with the problem of the sustainable development and the needs of the future generation, once more based on the idea of duties and solidarity.
THE LEGAL SYSTEM TO PROTECT REFUGEES IN LATIN AMERICA AND BRAZIL
by Estefânia Maria de Queiroz Barboza
In the twentieth century, the international community, horrified by the direction of the war, noted the urgent need for the United Nation member countries to provide assistance to those who were being harassed in their territories. It was recognized that each applicant for asylum or refuge was the result of a pattern of violation of fundamental rights. All definitions of refugees provided in different international and national normative texts in different countries are not exclusive, however, are complementary, and their content are open. The international construction in this topic influenced directly the national regulatory updates of Brazil and other Latin American countries. Most Latin American countries, including Brazil, adopted provisions within the expanded definition of refugee that was set out in Conclusion third of the Cartagena Declaration of refugees. The main challenges to be faced by Latin American countries concerns the refugees and Internally Displaced People from Colombia because of violence and the Haitians who, because of the 2010 earthquake, need humanitarian protection from other countries.
Lampedusa. Architecture for hospitality
by Giovanni Francesco Tuzzolino
The experience, carried on in the architectonical design laboratories, in the faculty of Architecture in Palermo, has had the aim to qualify the teaching of the project with the introduction of important ethic and social contents. If, on the one hand, hospitality is one of the most important value for architecture, on the other hand, it asks us about questions related to human solidarity, to the pacific cohabitation among people and also about the framework of physical and social relations. Today is very useful to confirm the anthropological and social meaning of the project, its inescapable role to converge in form and space all living inquietudes. The way illustrated in these pages get a sense of how the forms of cohabitation among different ethnic groups are necessary and above all they are a resource. Indeed, new architectures not only satisfy the specific living requirements related to the cultural traditions of immigrants, but they also offer useful solutions to the unresolved spatial conditions of the city. Finally, the city is able to provide itself new centralities, places, functions and spaces which are necessary for now. In this way, the hospitality current necessities create the opportunity to offer quality to the urban space, across the theory of coherence and beauty
The rights of immigrants in the jurisprudence of the Constitutional Court
by Ornella Spataro
The issue of migrants’ rights can not be examined except in the light of constitutional law, since, in the absence of normative data with completeness, it should be just to the judgments of the court of law, in large part, the reconstruction of the constitutional status of the immigrant in our area. The identification of the rights to be granted to immigrants, still, is fraught with issues of major problematic, and passes through the rethinking of the fundamental categories of Republican constitutionalism, leading to a reflection that involves the doctrine of fundamental rights issues related to state sovereignty on its territory and the quality of citizenship as a conceptual figure that governs the political participation of the subjects. All this is further complicated when one considers the pluralism of sources within and outside of our legal system, are enabled to affect the subject. Against the backdrop of issues characterized by similar complexity, the script examines the guidelines drawn up by the Constitutional Court, according to a methodological criterion that, in an effort to simplify, distinguishes the issue of jus migrandi and immigration policy, the issue of civil liberties, social rights, political rights. For each of these strands are highlighted efforts made by the national laws towards the enhancement of inclusive tendencies in the Constitution, maximally evident at the level of civil liberties and social rights; whereas, on the contrary, in the area of political rights and immigration policy has so far emerged with more clarity the building conceptual recall that, in the traditional sense, is based on the theory of sovereignty which the State exercises on its territory and that links to formal citizenship, mainly jure sanguinis, the circuit of political participation.
ADMINISTRATIVE DETENTION OF IRREGULAR FOREIGNERS IN Italy AND IN THE EUROPEAN UNION AND THE FUNDAMENTAL HUMAN RIGHT TO PERSONAL FREEDOM AND PROPER DEFENSE
by Cristiano Celone
Foreigners are particularly subject to the restriction of personal freedom. A great number of countries resort to the detention of irregular migrants and asylum seekers by reason of the violation of immigration laws, including irregularly crossing the State border, using false document, non-possession of identification documents, staying after the permit of stay has expired, etc.. In Italy and in other member States of the European Union we can notice an ordinary use of administrative detention of foreigners (without authorization to entry or stay in EU countries) and of other measures of restriction of personal freedom also with respect to aylum seekers. The purpose of this article is to examine the italian and european legal framework of administrative detention of non EU citizens and stateless persons, to see if it comply with the fundamental principles of constitutional and international law and case-law on human rights, with regard, in particular, to the protection of personal freedom and proper defense.
The protection of foreign minors challenged by migration policies
by Roberta Teresa Di Rosa
The aim of the research and the studies was to analyse the space given to minor migrants and their families within the Child Welfare System, comparing it with the laws and services available for native minors and families. Using the analysis of the policy framework and the characteristics of the presence of foreigners in Italy as a starting point, it was possible to observe the characteristics of the service system provided and implemented for foreign minors and their families, as well as those of the principal agents involved in the reception process and the social instruments available for their integration. In addition, the historic analysis of the laws issued on this subject has shown how the level of protection established for the families and minors is inversely proportionate to the definition of the issue of immigration as a question of security and public order. The stereotypical depiction of immigrants, which is prevalently negative, also affects the efficacy of the services, reflecting on the performance of the operators. In the specific case of Italy, this study has revealed how here the presence of a consistent number of unaccompanied foreign minors has led to legal provisions and greater investment in the field of services being focussed specifically on these, while foreign
minors accompanied by their families the are provided with same services that exist for Italian minors and families, without any particular distinction (except to some extent with regard to schooling). Only recently have immigrant families begun to be subject to legal provisions, even though this space, which is provided for in social policy, has yet to materialise in practice. In any case, whatever the rights and services established by law, it has become evident that the perception of cultural difference influences the relationship of the immigrants with the service system. Indeed, it must be underlined that the difference in aid offered is based more on the perception of diversity than on the norms. Hence the need to invest more on training and all-life-long courses for the operators to promote the full application of the laws and a more effective recognition of the rights of immigrant minors and families.
The Immigration Criminal Law: brief remarks on the Criminal Law of Fear
by Licia Siracusa
Immigration Criminal Law should be more appropriately called “Criminal Law of the Irregular Immigrant”, since it shows to essentially be based on the criminalization of mere subjective “status”, rather than offensive managements of legal goods. Indeed, behind the protective shelter of an apparent balance between the need to legally protect human rights and the interest in controlling the migratory flow, the system of incriminations in this sector seems to be deeply imbalanced towards the punishment of types of perpetrators who are socially dangerous. It is namely a matter of model of criminal law very similar to the well known standard of “ Criminal Law of the Enemy”. The inspiring “ratio” of the discipline hasn’t even changed following its adjustment due to the obligation forced by the 2008/115/CE European legislation, decided with Law n.129 of August 2nd 2011. As a matter of fact this didn’t determine a total improvement of the system in a form of compliance to the fundamental principles of legal law, but on the contrary it expanded the ancillary function of criminal law towards the legal action of repatriation, without, on the other hand, removing the irrational aspects of the repressive decisions made by the Italian legislator.
The Transformations of the Right to Asylum
by Elisa Cavasino
Asylum is changing shape. It was a sovereign privilege of the State. After II World War, when Western Europe
had built a new constitutional architecture to fundamental rights of the person, Asylum has become a Constitutional right. Nowadays, territorial Asylum is losing ground. This is due to the interpretation and the application of other Aliens protection regimes drafted in International Treaties and EU Law. The transformations of Asylum is due to precise political, legislative and jurisprudential choices, wich led to the limitation of National Sovereignty. These choices have determined that National Sovereignty has been limited: the Constitutional Right of Asylum is no more receiving autonomous application. It is not clear if this transformation is due to the changing position of the National Constitutional Law towards protection of the Fundamental Rights of the Person, but the legal framework wich resulted from it cannot guarantee equivalent or more effective protection to the Fundamental Rights of Aliens.
Immigration and work at the time of crisis. Current problems and possible reforms of the regulatory framework
by Alessandro Riccobono
The essay analyzes the phenomenon of migration in his role as a structural component of the Italian labor market. Despite the negative effects of the crisis, the contribution of foreign labor has to be considered as a valuable resource to restart the competitiveness of enterprises and to develop the productivity of the economic system. Through an analysis of the regulatory framework currently in force – also in the light of the most recent legislative changes – the Author highlights some of the main critical issues of the discipline about immigrant labor and reports the possible paths of reform to be included in the political agenda of the new government.
THE VIOLATION OF HUMAN RIGHTS IN THE MIGRANT DOMESTIC WORK CARE MARKET
by Alessandra Sciurba
Domestic and care work of migrants women has by now become the subject of extensive international but also Italian studies. Taking for granted some well-established assumptions from the literature, we can thus try to examine the way in which this phenomenon, so relevant in contemporary societies, structurally involves a violation of some of the fundamental rights of these workers and their families. Before entering into the detail of this topic, we will make explicit some general premises that define the outlines of the phenomena of migration and labor market in globalization, within which the domestic and care work provided at a fee by migrant women in Italy have to be read and interpreted. Starting from the analysis of their condition, this paper aims to investigate, within the migrant domestic work and care market, the violation of the right to family unity and that of the child to receive care from their parents in the case of the minors “left behind”, offering a complex perspective with respect both to the quality of the content of these rights and to the level of their violation as a result of the migration of care workers, and with respect to the responsibility for this violation. Finally, taking into account the “care” as a social imperative, fundamentally connected to the human condition, we will examine the possibility to rethink a right to care articulated with respect to the content (either to give and to receive care), and universal and unconditional with respect to its access, reasoning here about its violation in relation with the structural characteristics of the migrant domestic work and care market.
EUROPEAN CONVENTION ON HUMAN RIGHTS AND NON-REFOULEMENT AT SEA
by Giuseppe Puma
This work analyzes the praxis of the push-back operations carried out by the Italian government in order to face the arrival to its coasts of thousands of migrants. The aim of this contribution is to assess the consistency of these operations with the rules laid down in the European Convention on Human Rights. The preliminary question to be solved is to determine whether the Convention is applicable to the push back operations carried out in the high seas, given that, under article 1 of the ECHR, States are obliged to respect the rights set forth in the Convention to all individuals within their jurisdiction. The analysis then focuses on two substantial rules of the ECHR: the first one is that of article 3, which prohibits torture or inhuman or degrading treatment. The European Court have emphasized the fundamental nature of Article 3 in holding that the prohibition is made in absolute terms irrespective of a victim’s conduct. The Court has also held that States cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient State. On the basis of this provision, we can argue that the ECHR system provides a non-refoulement principle whose scope of application is broader than that contained in the 1951 Geneva Convention on the status of refugees. The other substantial rule that could be applied to the individuals pushed back at the high seas is that contained in article 4 of the Fourth Protocol additional to the ECHR, which states that collective expulsion of aliens in prohibited.
THE JUDICIAL PROTECTION OF FOREIGNERS BETWEEN DUALISTIC SYSTEM, JURISDICTION “FULL” OF THE ORDINARY COURTS AND MIGRATION TRENDS BY THE ADMINISTRATIVE COURT
by Rosario Papania
Different solutions to the issue of the judicial protection of the migrants could be found in the d.lgs. n. 286/1998.
The fact that the migrant is the holder of subjective rights and legitimate interests involves, on the side of the case, the distribution of disputes between ordinary courts and administrative courts, with all the problems that this distribution involves, especially when related acts are given to different judges. The author pauses to describe the powers that the ordinary courts in the context of the so-called full jurisdiction within which fall a large number of cases relating to the
protection of fundamental rights of the human person, it is also analyzed the role that performs the administrative judge in immigration, both from the procedural point of view, both in terms of the case. Finally, it seeks to enhance the contribution that an administrative court can give to the defense of the inviolable rights of foreigners.
THE EXISTENTIAL CONDITION OF MIGRANTS RELATED TO HUMAN RIGHTS
by Laura Verduci
The analytical path that led us through the categories of money, freedom and identity let the immigrant’s existential condition emerge as a unitary condition, though it is structured on many levels. The choice of these three constitutive points doesn’t claim itself to be exhaustive but stands as an approach to this particular otherness’ expression. As already seen, money is not to be interpreted as a mere tool but, considered in a wider existential frame, it becomes an expectations’ symbol; freedom shows its vulnerability; identity, once its uniqueness is lost, gets a bureaucratic and instrumental value. Considering this analysis, the rights’ issues take on a wider connotation. The matter isn’t just to outline an immigrants’ rights specific field from a juridical point of view or, from a sociological one, to give an account of the infringements of their rights. The immigrants’ existential condition is rather an advantaged point of view in order to let a particular social dynamics emerge, where human rights turn out as indivisible and non-negotiable.
IMMIGRATION POLICY AND THE PROTECTION OF MIGRANTS (an evolving discipline)
by Vincenzo Cerulli Irelli
The article outlines the most outstanding features of the legislation on immigration and its problematic profiles, taking into account the reports presented at the Conference on “Immigration law and rights of migrants”. It focuses primarily on immigration policy, traditionally regarded as a corollary of State sovereignty, illustrating the powers of the European Union in the matter of asylum, immigration and control of external borders, the common rules and procedures to entry or stay in EU member States and to repatriate irregular citizens of third countries. Then it outlines the “status” of non EU immigrant in the domestic context, with particular regard to the rights of freedom and to the social rights that must be recognized to him, regardless of the regularity of his stay on the national territory, in the light of the constitutional and legislative framework and in the light of the jurisprudence of the Italian Constitutional Court. Finally, it deals with the national and European legislation on asylum, on entry or stay, on expulsion of migrants, highlighting the most controversial aspects of this legislation with particular regard to the judicial protection and to the allocation of the jurisdiction.