Il diritto penale dell'immigrato: brevi spunti di 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 behav- iours 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 mi- gration flows, the criminalisation system in this sector appears greatly unbal- anced 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 adapta- tion, through law 2 August 2011, n. 129, to the obligations set by the Euro- pean Directive 2008/115/EC. Indeed, this has not determined an overall im- provement 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 repa- triation, without eliminating the irrational aspects of the repressive choices of the Italian legislator.