On October 2018 the Security Decree Bis has entered into force, as strongly required by the former Minister of the Interior Matteo Salvini.
This Decree has been then converted into law after the polling at the Senate, the outcome of which was a confidence vote (160 votes in favor, 57 against and 21 abstained).
In our previous articles concerning this matter, we have extensively dealt with the contents of the new discipline firmly wanted by Matteo Salvini (link all’articolo)
Since a year has passed from the entry into force of the Law Decree, Large Movements want to take a closer look to what has been effectively implemented and, generally, what are the effects that this regulation has created so far.
Here, we are going to examine only those parts of the Decree that deal with the migration phenomena – not expressing other comments on security and public policy matter, both subjects of this reform.
Firstly, we are going to analyze which of its fundamental cornerstones have actually been implemented.
The first disposition included within the decree, illustrates the well sadly famous principle of the “Closed Harbors”.
In that article is said that “the Minister of the Interior could limit or forbid the entrance, crossing or stopping of the boats within the territorial water”. From this disposition then, it could be inferred that the Viminale could “close harbors” every time: (1) there is a suspected breach of the Unique Text in Immigration and (2) there is a suspect of aiding and abetting immigration.
It is useful to say that, thank to this disposition, such a radical and troubled decision could be taken basing someone’s own opinion on pure suspect, without being in charge of providing any evidence for his allegations.
Substantially then, undisputed powers would be given to the Minister of the Interior and these powers could lead to the taking of arbitrary chance (and they actually have already done that)
In order to try to avoid a concrete risk of an authoritarian turn, in the ultimate text discussed before the Senate it has been prescribed that the disposition with which the Minister of the Intern rejects the request of a ship full of migrants to moor in Italian harbors, has to be countersigned by the Ministers of the Infrastructures and of the Defense.
Referring to the dispositions concerning the penalties for those who save people at sea (clause which explicitly aims to deeply harm the NGOs), the Salvini’s Decree prescribes that the captain of the ship involved in the rescue could face a financial penalty which could go from a minimum of 150 thousands of euros to a maximum of one million of euros.
It is then prescribed an additional penalty consisting in the abduction of the ship – during which the related maintenance costs are borne by the armateur and the ship-owner.
Moreover, the arrest in flagrancy is prescribed when the captain of the ship “resists or uses violence against a battleship” (indeed, the ships of the Port Authority or those of the Navy are considered battleship).
Lastly, a fund for the repatriation has been established at the Ministry of the Foreign Affairs and an initial allocation of 2 thousand euros has been injected.
Special reference has to be done with regard to the illegal immigration, which even if it has always been included in our legislation, in this Decree it includes people who should not be in that category – since Italy has ratified international treaties and conventions which attempted to contain the phenomena, always respecting individual rights.
Another new introduction is an additional fund for fighting illegal immigration which would be increased every year. Specifically, it has been prescribed: (1) 500 thousand euros for 2019; (2) 1 million euros for 2020; (3) 1 million and a half euros for 2021. This fund has been designed for the illegal migrants’ repatriation.
What its effects are after one year from its adoption
During the analysis of the text by the Commission for the Foreign Affairs and for the Justice of the Chamber, experts, university professors and the authorities themselves had expressed some doubts concerning the legitimacy of the Decree and they had underlined the problems which were already obvious at a first reading.
Despite the alert of the Commission though, the Security Decree (then converted in Law) had been approved without any modification.
We are going to examine in detail what the potential profiles of illegitimacy could be and, in general, the effects produced by the dispositions contained in the Decree after just over a year from its entry into force.
Concerns regarding the text are evident since its article 1, the one related to the Minister of the Interior’s power to forbid or limit the access (or even the passing or the stopping) to the ships that carry migrants, if he assumes there is a breach of the national law on the migration.
The problem occurs because the right at rescue at sea and the asylum right are disciplined by several international conventions – an example above all being the UN Convention of 1982 on the Law of the Sea – which protect them, binding the signatory States to respect their dispositions.
As prescribed by the “living law” and by the article 10 of the Italian Constitution then, international treaties and conventions could not be outdated by a national law. But this is exactly what happens in the case of article 1 of the Security Decree Bis: it is granted to a national provision the power to derogate from what has been prescribed by international treaties.
If what above said, would have been brought before the European and/or International Courts, Italy would be highly probably doomed.
Furthermore, as noted by the Study Service of the Chamber, “it should be clarified how the disposition concerning the failed specification of a safe debarkation harbor in clear terms has to be applied”.
International dispositions indeed, state that people rescue at sea should be transported to the first safe harbor either from a geographic proximity or from a higher respect of fundamental human rights point of view.
Combining these two provisions – geographic proximity and human rights protection – it could be easily inferred that Italy is considered a “first safe harbor” for most of the ships rescued at the sea.
Italy infact, is one of the fewest County which has a great amount of reception centers and/or of premises to facilitate debarkation.
The Security Decree totally ignores the problem, revealing a complete disregard for the international scene – beyond that for its laws. Even this profile, in the long term, could cause Italy to be doomed again by the European Courts and/or to a loss of international reliability for lacking to respect its own commitments.
Referring to the huge financial penalties imposed to anyone who rescue people at sea, the UN Refugee Agency has declared that “charging financial penalties and of other nature to the Captain of the ships could hinder or prevent the rescuing activities carried on by private boats, in a moment where European States have significantly withdrawn their support to the rescuing operations in the Central Mediterranean Sea”.
Following the crackdowns that the Governments of the European Member States have carried on to the reception system discipline indeed, the rescue at sea of people escaping from wars, famine and poverty is more and more delegated to the private ships of the NGOs.
Absurdly, these penalties may end up in increasing the illegal migration since more and more people debarked in the Italian coastlines hided by the dark into anonymous boats, avoiding checks and not being able to be included in the reception system then.
For these people the chances of living a life in a legal context are roughly void and hardly they would effectively integrate within the new social context in which they are living.
The “proof” of this will to hinder the work of the NGOs is provided, according to the experts, by the great disproportion of the penalty compared to the offence itself. It suffices to think that for a downtown redevelopment the penalties could reach a maximum of 20 million of euros but in the event of an unauthorized rescue of people at sea the minimum amount could be of 500 thousand euros (only in the 2019)!
Moreover, as evidence of the illegitimacy of the new discipline concerning migration there is the lack of the needed emergency requirement, without which the Law Decree could not be adopted.
This requirement indeed, is totally absent since (1) in the first months of 2019 the debarkation had decreased of the 84,3% compared to the same period of 2018; (2) migrants brought in Italy by the NGOs’ ships are roughly the 8% of the total amount( Credit: data spread from the Ministry of the Interior).
These numbers are very different from those announced by Matteo Salvini to justify the urgent adoption of this law.
The form of the Law Decree indeed, guarantees that its dispositions have an immediate legal nature. The Parliament would have 60 days to promulge a Conversion Law which definitively implements the new discipline, transforming it into ordinary law.
In the event of the Security Decree Bis, despite the lack of the emergency requirement was obvious, the Parliament has promulged its Conversion Law by the way – so corroborating the fairytale of the Lega Nord, according to which there is a proper “invasion of Italian national borders by the foreign”.
Another destructive effect of the Security Decree is its public message: migrants do not have a residence right and, consequently, even legal migrants are experiencing nowadays more and more closing also by their employers and the banks.
Furthermore, thank to the adoption of these new procedures, the timeframe for the citizenship request is immediately doubled (from 24 to 48 months), increasing the uncertainty in which migrants and their families are forced to live.
Special reference has to be made as for the removal of the permit for humanitarian reasons.
Even if the Constitutional Court has already clarified indeed, that this disposition could not be applied for those requests submitted before the 5th of October 2018 (the date of the entry into force of the Security Decree), the Territorial Commission have drastically reduced the granting of this status even for those who have submitted their request before that date.
This is creating a lot of chaos and uncertainties among migrants and their lawyers.
Dramatic and capable of producing only devasting effects then, is the removal of the acceptance within the Sprar which has been immediately applied, without even introducing any remedial and thus creating a paradox of which thousand of people are victims nowadays.
For the asylum seekers and the refugees the problem has been “solved” by establishing their reception within the Cas – Extraordinary Reception Centers (which had been launched as first reception centers, so they do not have the adequate premises to host people for long periods neither to help them integrating – this was the aim of the Sprar).
Those who are entitled to humanitarian protection (i.e. those who have obtained the permit for humanitarian reason) instead, could not be host within the Cas since they could not be hosted neither within the Sprar. Consequently, tens of thousands of people have been immediately kicked out the reception system, without providing them with an alternative – basically pushing them towards a criminal context which earns from their exploitation of whichever nature.
Rapidly, there are provisions which were included within the Decree but which today have still not been implemented such as:
- the disposition concerning the detention for custody or for verification of the asylum seekers’ identity and citizenship;
- the reform of manifestly unfounded of the request for humanitarian protection. This disposition by the way, has reached its goal: imbuing within the public opinion the suspect that the refugees are liars only because they are migrants;
- the list of the “Secure Country of Origin” which should have been written down immediately after the entry into force of the Security Decree.
