IL DIRITTO PENALE DELL'IMMIGRATO: BREVI SPUNTI PER UNA RIFLESSIONE SUL DIRITTO PENALE DELLA PAURA

Abstract

Criminal law of immigration should be more conveniently defined "criminal law of the irregular immigrant", centred, as it appears essentially focused on the criminalisation of mere subjective statuses, instead of behaviours harming legal goods. In fact, behind the cover of an apparent balance of the need for protection of human rights and the interest to the control of migration flows, the criminalisation system in this sector appears greatly unbalanced towards the punishment of socially dangerous types of authors. This is, therefore, a model of criminal law very similar to the "enemy criminal law". The ratio inspiring the regulations has not changed even after its adaptation, through law 2 August 2011, n. 129, to the obligations set by the European Directive 2008/115/EC. Indeed, this has not determined an overall improvement of the system as regards the compliance with the fundamental principles of criminal law, but, on the contrary, it increased the "ancillary" function of criminal law with regard to the administrative procedure of repatriation, without eliminating the irrational aspects of the repressive choices of the Italian legislator