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INTERNATIONAL TERRORISM AND DEGENERATION OF CRIMINAL LAW: SECURITARISM VS. RIGHTS OF THE INDIVIDUAL
Gioacchino Natoli - Luca De Matteis Movimento per la Giustizia - Italy
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The following as response to points A) 3 - 4 - 7 of the questionnaire "Derives Penales EuropÃ©ennes: LibertÃ©s Constitutionelles contre Culture SÃ©curitaire" drafted in view of the Meeting in Bordeaux.
No specific observations on the remaining issues addressed in the questionnaire.
1. After the events of Sept. 11th, 2001, we have witnessed a conspicuous production of internal policies striving to compress rights of freedom, taking the shape of an ever-increasing effort to identify an "enemy" (whether internal or external) and of a significant limitation on said rights through the slackening of judicial control on acts of the executive power and of the guarantees of the accused within the process of ascertaining facts.
The events of Sept. 11th certainly pose the international community in a sort of "state of necessity": the question, then, concerns the boundary within which the limitation of individual rights is acceptable in the face of such necessity. Such question has an ethical and meta-juridical scope and presents great complexity, involving issues which appeared to be stable acquisitions to the common cultural and juridical heritage of the international community.
2. The strain on these former strongholds manifests itself on two different levels.
2.1. In a more general sense, one that in its deeper ramifications transcends the scope of this paper and discussion, it poses the need to initiate a profound and serious reflection on the relationship among "reduction of individual rights" and "security".
2.1.1. This relationship, indeed, is absolutely coherent with the historical, social, and political tradition of Anglo-Saxon countries, especially the USA: the concept of Justice, in the wake of the historical origin of the North American Unitarian State, is defined in accordance with the protection of the rights to "life, liberty and the pursuit of happiness" of the individual: and among those especially the right of ownership. It is therefore immediately linked with the providing of those security measures (collective or individual - such as the inalienable right to possess firearms) functional to the protection of said rights.
2.1.2. The relationship in question is much less coherent with the tradition of countries, such as the European continental States, which base their existence on the idea of tripartition of powers among executive, legislative, and judiciary branches. In these social and political systems the concept of security is first and foremost collective: and measures taken to protect it can, and often must, look beyond the immediate protection of individual liberties, rights, and expectations. In this sense it is a task confided to the executive branch; the protection and balancing (and, where necessary, negation) of individual rights against such measures is, on the other hand, confided to the judiciary.
Therefore, whereas in the United States it is perfectly logical that one institutional subject (such as e.g. the Secretary of Defense) can jointly address policies for justice and security, the same situation would give rise to different issues if it were to take place in Italy or France or Spain if, for example, the Ministry of Interior Affairs were the subject in question.
Nevertheless, it must not be forgotten that the EU the Commissioner presiding over these subjects is only one, concerning himself both with Justice and Security, in coherence with the US model.
Also, it is significant that the Frame Decision on Fighting Terrorism adopted by the European Union on June 13th 2002 (at least partially, under American diplomatic pressure) adopts a definition of terrorism as "any intentional act tending to destabilize a country's economical or social structures, which determines the destruction of private property and thereby causes considerable economic loss": the proprietary perspective adopted by the wording leaves no doubt on the "cultural" stemming of the definition.
It could therefore be necessary to rethink the possible interferences and balancing among super-national rules and internal legal systems.
It is necessary to ask ourselves to which extent the limitation of individual liberties must lie outside the powers of the executive or transient parliamentary majorities. It is this level which constitutes the real "quality" of a democracy, in respect to which political power is correctly exercised only inasfar as it defines and implements constitutionally the founding and common principles, thereafter protecting this area from political power itself by appointing independent custodes to watch over the respect of these principles.
2.2. On a lower level, more pertinent to the issue in discussion, it must be noted that the question of the acceptability of the sacrifice of individual liberties has been resolved by the use of a "war logic", characterized by the (almost absolute) indifference to specific accusation in favor of an overemphasis on the "political" position of the individual, classified - if such position is in antagonism with the particular set of values considered in danger - almost as a "war enemy".
Also in Italy this climate of suspicion towards the internal or external "enemy" has determined the reduction of spaces of liberty, as shown by episodes which objectively (i.e. without any direct reference to the investigations or proceedings involved) define the measure of the hardship we experience. For example, the arrest of some Islamic foreigners in Bologna (who then proved to be only tourists who had made critical comments while observing a painting in a church, while this was interpreted as preparation of an attack), or the arrest of Afghan citizens in Rome who were found with city maps in which several spots were highlighted (which then proved to be seats of Caritas), or the numerous arrests of migrants arriving by sea if deemed (only by their nation of origin) linked to international terrorism.
3. The analysis of the consequences of this attitude concerns two different aspects addressed in this discussion.
3.1. As far as the measures directly related to the fight against international terrorism are concerned, they can be summarized as follows:
Â· Decree 25th September 2001 n. 353 converted into Law 27 November 2001 n. 415 providing sanctions against the violation of measures adopted towards the Taliban government of Afghanistan;
Â· Decree 12th October 2001 n. 369 converted into Law 14th November 2001 providing urgent measures to prevent the financing of international terrorism;
Â· Decree 12th October 2001 n. 374 converted into Law 15th December 2001 n. 438 providing urgent measures against international terrorism, which constituted the most relevant statutory answer to the facts of September 11th and included, among others: 1) the restating of art. 270-bis of the Criminal Code establishing the crime of Association pursuing terrorism, also international; in this respect, the fact that no shared definition of terrorist act exists in Italy or in the international community opens the road for abuse of the concept, which could easily be bent to comprise the prejudicial notions of public prosecutors leading the investigations or of judicial organs; 2) the attribution of competence concerning investigations on terrorism to the 29 district prosecution offices already entrusted with investigations on mafia-related crimes; 3) a redefinition of the conditions required to authorize eavesdropping in investigations concerning terrorism, which are made easier; 4) the possibility for public prosecutors to order eavesdropping before any authorization of a judge, although without validity of the results at trial; this constitutes and exception to the rule established for in art. 15 of the Italian Constitution which provides that freedom of communication and secrecy thereof can only be limited by an act of jurisdiction.
3.2. The second aspect directly influenced by the attitude outlined above is the discipline of immigration.
3.2.1. This sector, in Italian legislation, has always been characterized by a strong administrativization of procedures, stressing the concept that the discipline of immigration is a largely political issue which should therefore be taken care of by the executive and its ramifications. On the contrary, the powers of the judiciary in a sector which evidently involves many of the fundamental rights of the migrant person has always been relegated on the margin, through the designing of procedures so curt that the space for judicial review is virtually annihilated.
Although important jurists have remarked the democratic defects of the system already in the 1970's, this has been replicated and made harsher through the two main bills of reform concerning the subject of immigration: law 286 of 1998 and, later, law 189 of 2002, which was drafted and approved by the parliamentary majority currently in office and has widely reshaped the matter.
3.2.2. The main idea that lies behind this statute is the illegality of unauthorized entry in the territory of the State: it therefore produced a category of quasi-criminals defined as "clandestines". It must be pointed out that the definition is not natural but strictly legal, deriving from the global consideration underlying the discipline of immigration. The consideration is, at least, two-sided: there is no outright definition of the unauthorized migrant as criminal (although the suggestion keeps surfacing now and then in certain more xenophobe sectors of Italian politics, and although certain legal provisions subtly point in this direction: e.g. the misdemeanor consisting of being found without valid identification on the State territory, which, considering the normal situation of clandestines, borders with the overt punishment of clandestinity); there is, however, an evident unspoken conviction that a clandestine is a potentially or actually dangerous subject to be withheld from the territory of the State.
3.2.3. The fight against clandestinity takes place in three phases:
Â· rejection of incoming migrants: this is achieved through a widespread militarization of frontiers with the attribution to Naval Forces of penetrating police powers to be exercised also outside the territorial waters; also, in accordance with a suggestion deriving originally from the British government, Italy has started a campaign to establish control structures abroad, in countries where migrations originate or transit: e.g., Italy has provided hardware and training to the Libyan Coast Guard to aid in the effort to patrol the shores in search for departing shipments of clandestines; also, recently negotiations with the Gheddafi regime have started for the installment of "temporary permanence centers" (see below) on Libyan territory. On the criminal side, the statute establishes as a crime the favoring of clandestine immigration, with a legislative technique which, due to its imprecision, has been widely criticized.
Â· pursuit of clandestines: this part of the statute on immigration is centered on several criminal provisions: not only the one, mentioned earlier, establishing a penalty for the foreigner found with proper identification (which in most countries of origin of illegal migrants is almost impossible to obtain, thus in practice sanctioning clandestinity itself); other criminal provisions concern the favoring of illegal permanence of clandestines in the territory of the State, including such cases as the employment of clandestines. These provisions are evidently aimed at "scorching the earth" around clandestines to discourage the phenomenon.
Â· expulsion of clandestines: this measure is the final answer of the Italian legal system to unauthorized immigration. No stable mechanism for naturalization or de-illegalization is provided: clandestines, under the current statute, face one of two possibilities. They can be rejected at the frontier or, if found on the State territory, immediatelly expelled; only if expulsion is not immediatelly executable (e.g., if there is a doubt as to the actual identity and nationality of the stranger found illegally in Italy: which represents the vast majority of cases, since most clandestines have no positive identification) they can be held for a period up to 60 days in a "temporary permanence center", in a situation which must be classified as "administrative detention". This detention, virtually an imprisonment, is regulated only by administrative provisions and does not pass through any kind of judicial review. If, after this detention, the identification is still not possible, the foreigner is ordered to leave the country in the term of 5 days on his own means: if the clandestine does not comply with this order, he commits a misdemeanor punished with a mild penalty.
3.2.4. What is evident from the analysis of this rules is that, in application of the securitarian logic, there is no effort to realistically face the fact that migrations take place and to discipline and govern this phenomenon in respect of the basic rights of those involved: there is rather the utopistical (or, more often, demagogical) pursuit of a fight against immigration through prohibition and through the criminalization of the "other", in a vain effort to protect individual rights and expectations of residing citizens who are brought to identify the migrant as the source of their insecurity.