El derecho penal de la imigración en Italia: un ejemplo de derecho penal del medio (Immigration Criminal Law in Italy: an example of the Criminal Law of Fear)

Abstract

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.