«The Republic recognises and guarantees inviolable human rights, both for the individual and within social groups where the individual’s personality is expressed, and it requires the fulfilment of the imperative duties of political, economic and social solidarity» (article 2 of the Italian Constitution)
Article 2 expresses the Italian State’s solemn acknowledgement of inviolable human rights. This article states the principle according to which even the sovereign power must stop in front of the individual’s rights.
It recognises fundamental rights in the sense that it accepts them as something that already exist: rights are not created by the State, but exist regardless of the latter. The inviolability of rights does not mean that the State cannot in some cases limit these rights (in fact, the Constitution sets limits by regulating the various freedoms), but said limits must be set with legally valid actions.
Finally, recognition is guaranteed to all those who deal with our State, not only Italian citizens.
In general, the Italian laws regulating the legal condition of foreign citizens reaffirm fundamental human rights (article 2 of the Constitution). These rights include civil, family, social rights as well as several forms of political consultative participation of foreign citizens lawfully residing in Italy. Therefore, regulations are structured in such a way to be considered an essential tool for favouring foreign citizens’ integration, with the aim to extend the effectiveness of the principle of equality stated in article 3 of the Constitution. Therefore, the principle of equality entails that foreign citizens lawfully residing not only have duties but also rights, benefitting from the condition of equality with citizens.
Said rights and duties increase in relation to the foreign citizen’s period of residence and integration while living in Italy. In any case, fundamental human rights are implemented also toward foreign citizens present on the State’s territory in unlawful conditions.
All foreign citizens benefit from the protection of fundamental human rights provided for by domestic regulations, international conventions in force and principles of international law globally recognised, pursuant to article 2 of the Single Text on Immigration and article 10, paragraph 1, of the Constitution.
Moreover, the principle of equality stated by article 3 of the Constitution is implemented in guarantee of inviolable human rights recognised by article 2 of the Constitution. Article 2 of the Constitution, in fact, establishes the limits in the legislator’s discretionary power in regulating fundamental rights. Article 10, paragraph 2, of the Constitution includes a saving clause that refers to the obligations defined by many international rules for the protection of human rights concerning the individual’s dignity.
Among these rules, of preeminent relevance, there is the European convention for the protection of human rights and fundamental freedoms (Rome, 1950) of which Italy is part (ratified and made executive with law n. 848 of 4 August 1955).
Article 14 of the Convention establishes that individuals must be guaranteed rights and freedoms as recognised by the Convention, without any distinction of gender, race, colour, language, religion, political opinions or other opinions, national and social origins, national minorities, goods of fortune, birth or any other condition: everybody is equal in front of the law and has the right to lawful equal protection without discrimination.
The European Convention, as well as other international instruments of almost universal range such as the International Agreement on civil and political rights (New York, 1966, ratified by Italy with law n. 881 of 25 October 1977), and the Italian Constitution state the following fundamental rights:
· the right to life (article 2 of the European Convention, article 6 of the Agreement), including the prohibition to carry out death sentences.
· the right not to suffer any cruel, inhuman, degrading sentences, treatments or punishments (article 3 of the European Convention, article 7 of the Agreement)
· the right not to be reduced into slavery or to be obliged to forced labour (article 4 of the European Convention, article 8 of the Agreement).
· the right to freedom and personal safety, except in the case of arrest and legitimate imprisonment (article 5 of the European Convention, article 9 of the Agreement, article 13 of the Italian Constitution).
· the right of action in order to protect one’s rights in civil, penal and administrative matters in front of an independent judge and pre-established by law and in reasonable times (articles 6 and 13 of the European Convention, article 14 of the Agreement, articles 24, 101, 111 and 27 of the Italian Constitution).
The protection of the law includes the review of irrevocable convictions, the presumption of innocence, the right to the amendment of judicial errors. Moreover, the foreign citizen who undergoes arrest and trial has the right to defence, receiving the assistance of an interpreter during the examination as well as written statements in one’s own language. Expelled foreign citizens can also re-enter Italy for the time necessary to defend themselves and take part in the trial. Foreign citizens can also lodge claims for labour trials aimed at guaranteeing their rights as workers or defending any other right connected to the individual’s rights and those of the family.
· the right to the respect for private and family life, for one’s own domicile and correspondence, without any interference which is not provided for by law (article 8 of the European Convention, article 17 of the Agreement, articles 14 and 15 of the Italian Constitution).
· the right to freely manifest one’s thoughts, including the freedom of opinion and the freedom to receive or communicate information or ideas without interferences, except the limits set by law to perserve public safety, the defence of order, prevention of crimes and protection of public health (article 10 of the European Convention, article 19 of the Agreement, article 21 of the Italian Constitution).
· the right to freedom of thought, conscience and religion, including the freedom to change religion or thought, and the freedom to manifest one’s religion or thought in private or in public (article 9 of the European Convention, article 18 of the Agreement, articles 19, 20 and 21 of the Italian Constitution).
· the right to the respect for legality within the penal ambit, that is the prohibition to sentence someone for an action that does not constitute crime (article 7 of the European Convention, article 15 of the Agreement, article 25 of the Italian Constitution).
· the right to freedom of pacific meetings and freedom of association, including the right to establish trade unions and become trade union members for the defence of one’s interests (article 11 of the European Convention, article 8 and 21 of the Agreement, articles 17, 18 and 39 of the Italian Constitution).
· the right to marry and form a family, within which the spouses have the same rights and responsibilities toward each other and toward their children (article 12 of the European Convention, article 23 of the Agreement, article 29 of the Italian Constitution).
With regard to birth certificates and recognition of filiation (birth register – of the civil state) it is not necessary to exhibit documents concerning residence, since these are statements given in the public interest for the certainty of the actual situation, also for the minor’s protection.
Foreign citizens present on the territory can marry. In fact, the court has stated the constitutional illegitimacy of article 116, first paragraph, of the civil code, as amended by article 1, paragraph 15, of law n. 94 of 15 July 2009 (Measures for public safety), which in order to marry required the issuing of a document proving the regularity of the foreign citizen’s residence on the Italian territory.
· the right to education (article 2 of Protocol 1 to the European Convention, article 18, paragraph 4, of the Agreement, articles 30, 33 and 34 of the Italian Constitution).
· the right to health (article 3 of the European Convention, according to a judicial interpretation “par ricochet” of the Court of Strasbourg, article 32 of the Italian Constitution)
For further information, consult the pages devoted to the following fundamental rights:
Articles 43 and 44 of the Single Text on Immigration introduce civil actions against racist and xenophobe discriminations originated by actions of private citizens or public administration.
In particular, article 43 defines discrimination as «all behaviours that, directly or indirectly, entail a distinction, exclusion, restriction or preference based on race, colour, ancestors or national or ethnic origins, religious beliefs or practices, and that have the aim or effect to destroy or compromise the recognition, benefitting or exercise, in conditions of equality, of human rights and fundamental freedoms in political, economic, social and cultural sectors and in every other sector of public life.»
Article 43, paragraph 2, of the Single Text on Immigration identifies five kinds of discriminatory conducts mostly widespread in the ambit of housing, the labour market and the relationship with the public administration:
· Discrimination in the relationship with public powers, that is when a public official or person in charge of a public service while carrying out his/her functions performs or omits actions against foreign citizens, only due to the condition of foreign citizen or the belonging to a specific race, religion, ethnic group or nationality.
· Discrimination carried out by those who offer goods or services to the public, should the service be offered at more disadvantageous conditions or not be offered at all due to the condition of foreign citizen.
· Discrimination in access to work, housing, education and welfare services, should said services be offered at more disadvantageous conditions or not be offered at all due to the condition of foreign citizen.
· Discriminatory impediment to carry out an economic activity started legitimately by a foreign citizen lawfully resident in Italy
· Discrimination on the job, should the employer or his/her persons in charge carry out any action or behaviour that produces discriminatory effects on the working foreign citizen, due to his/her race, ethnic or language group, religious belief or other citizenship.
Therefore, pursuant to article 44, it is possible to appeal to the ordinary judicial authority in order to ask for the cessation of the prejudicial behaviour and of the removal of the effects of the discrimination, according to a summary order (art. 28 of Lgs.D. 150 of 2011). The victim appealing can find relief owing to the sentencing of the person liable to the compensation of damages even not patrimonial, to which the judge can add the order of cessation of the prejudicial behaviour.
In order to ensure greater effectiveness to the judge’s ruling, article 44, paragraph 8, of the Single Text on Immigration provides for a further penal sanction in case of non-compliance with the judicial measures with regard to the discriminatory action carried out:
«Whoever eludes the execution of the measures, different from the sentence of compensation of the damages, ruled by the judge in the controversies provided for by this article, is punished pursuant to article 388, first paragraph, of the penal code [with imprisonment up to three years or a fine from one hundred and three Euros to one thousand thirty-two Euros]»
MAIN DECISIONS OF THE ITALIAN CONSTITUTIONAL COURT
Individual freedom and detainment of foreigners within identification and expatriation centres
Right to health
Access to measures alternative to imprisonment
Right to urgent social and welfare services that cannot be postponed
Protection of fundamental rights in general
Protection of fundamental rights, with particular reference to initial housing reception centres
Right to marriage