Within the heated discussion ignited in Italy by the 2008 “security package”, which made illegal immigration a crime, the Constitutional Court is now issuing a sentence. What is it all about? The sentence supplies a clarification of a controversial and complex aspect.

The Constitutional Court has established the impossibility to overlap the aggravation for illegal immigration and the crime of illegal immigration, it being understood that reasons will have to be published.

Basically, when speaking of the offence of illegal immigration, it must not be turned into an aggravation of another crime.

In fact, a number of Justices of the Peace (JPs) had raised the questions of constitutionality for both the introduction of the aggravation of illegal immigration and, above all, with regard to the offence of illegal immigration. The unconstitutionality had mainly to do with the article 3 of the Constitution. According to the principle of equality, foreigners could be charged of such offence in situations that are very dissimilar one from another: foreigners that illegally entered the Italian territory and are committed to criminal activities, foreigners that entered illegally but subsequently candidly accepted to be integrated, foreigners that entered the territory for short periods and then remained longer than the expiration date of their residence permit, maybe for contingent reasons.

More specifically, the aggravation of illegal immigration, introduced in the penal code by the 2008“security package”, has been declared unconstitutional. In fact, it envisages the increase of the punishment by one third in the case of crimes committed by an illegal immigrant. The grounds for this decision, according to ANSA source, should be identified in articles 3 and 25 of the Constitution.

The increase of punishment has two aspects that can be considered as unconstitutional. Firstly, the same subject would be penalized twice, already pled guilty to the charge of illegal immigration (introduced by the 2009 “security package”). Secondly, the aggravation would appear not for a “material fact” – essential requirement for the penal responsibility – but rather for the mere legal status of the subject (the illegal presence in the Italian territory), without objective elements that might hint an increased seriousness of the offence or an increased danger of the perpetrator.

The judgement of the Court does not seem to unhinge then, one of the elements presented by the government as vital in Italian migration policies, which is the offence of illegal immigration. As previously pointed out, a repressive approach towards illegal immigration seem to prevail; since the ‘judicial machine’ is overloaded with a various tasks and often lacking in both financial and human resources, the risk is a great inefficiency.