1. The context

As is well known, in the last few years – and especially as from 2011, in the aftermath of the so-called Arab Spring – Italy’s southern shores have been hit by a massive and seemingly never-ending immigration flow coming from Northern and Central Africa and from the Middle East through the Mediterranean sea. On a number of occasions, the attempts of immigrants’ boats to reach the European/Italian coasts have been unsuccessful and have ended tragically. One such example happened on 3 October 2013, when more than 350 migrants, mostly Eritrean, died a few miles away from the small Italian island of Lampedusa, close to the Tunisian coast, after their boat sunk following an accidental on-board fire.[1]

This continuous immigration flow, with its sometimes tragic consequences – deriving from the desperate attempts of thousands of migrants to cross the sea in extremely difficult conditions, in order to reach and enter Italian/EU territory – clearly poses the Italian State (and the EU) an extremely difficult challenge, and puts the national authorities in a challenging position.

On one hand, national authorities cannot but try their best to prevent, manage effectively and stop this massive illegal immigration flow – which can pose serious public order/security threats – as well as to impose criminal sanctions, where appropriate, for related illegal conduct. Different strategies and tools may be adopted to that end, from the signing of international agreements with countries of origin, negotiated at the highest political level, to preventive patrol operations, to the adoption of administrative measures by home affairs and law enforcement authorities, as well as of criminal law measures by the judiciary.

On the other hand, in accordance with national and EU immigration law, as well as in full compliance with international human rights law, notably the European Convention of Human Rights (hereinafter, the ‘ECHR’),[2] national authorities must face and manage effectively the compelling humanitarian emergency posed by those immigration flows. Although the ECHR does not govern extradition, expulsion and asylum, and leaves State parties the right to ‘control the entry, residence and expulsion of aliens’,[3] in the last few decades, and particularly over the last few years, the European Court of Human Rights (hereinafter, the ‘ECtHR’) has adopted several important decisions in the field of immigration, some of which specifically concern the management of the migration wave in the Southern countries. These decisions have contributed significantly to the setting and development of international human rights standards in this field, as well as clarifying principles and practical guidelines which should guide the action of national authorities when dealing with immigration.[4]

This short article aims at briefly reviewing and discussing, in the light of European human rights law, the overall approach and attitude adopted by Italy towards this massive migration phenomenon, with special attention given to some key problematic issues, notably the adequacy of preventive action, rescue operations and humanitarian intervention, as well as the role attributed to Italian immigration law and practice to certain administrative security measures (push‑backs/expulsions, administrative detention) and to criminal law sanctions.

Italy has made a wide recourse to push-backs and expulsions and has enacted legislation enhancing criminal law measures as part of the overall strategy to contrast massive illegal immigration in the last few years. This approach has faced criticism from scholars, defence lawyers and NGOs for failing to be in line with Italian constitutional rights and with international and European human rights law, as well as for its ineffectiveness in relation to the aim pursued.[5]

At the same time, critical views have been expressed about the overall international human rights compliance in the Italian management of immigration flows, including lack or inadequacy of positive action aimed at preventing tragic events and a lack of humanitarian intervention.[6]


2. Alleged lack or inadequacy of preventive action, rescue operations and humanitarian intervention, as well as of related criminal investigations

Under Articles 2 and 3 ECHR, State Parties must respect the individual right not to be deprived of life nor exposed to inhuman or degrading treatment. The ECtHR has interpreted these two provisions extensively, as including a positive obligation to prevent (as far as reasonably possible) unlawful deprivation of life and exposure to prohibited treatment, to investigate effectively alleged violations and, where appropriate, to punish those responsible, whether they are State agents or private actors.[7]

In the context of massive immigration, it follows from the above that national authorities should do their best, whatever difficulties this may pose, in order to prevent migrants’ loss of life in their attempts to reach the national coasts, by intervening actively as soon as they become aware of the existence of such risk within their jurisdiction. Should loss of life actually occur, law enforcement authorities and the judiciary should investigate effectively the events and punish any persons responsible.

It may be further argued that on some occasions, as for example in the case of the abovementioned tragic Lampedusa shipwreck, Italy may have breached its ECHR obligations because: i) no preventive strategy of sea control (like the Mare Nostrum military operation launched by the Italian Government right after the tragedy) had been adopted in order to prevent the predictable risk of immigrants’ loss of life; ii) coastguard authorities, though aware of the fire started on the migrants’ boat, had not intervened actively and promptly, and iii) the Italian judiciary did not properly investigate the reasons for these omissions, leading to massive loss of life.

It is very difficult to make an ex post assessment of these allegations. It can be argued that Italian authorities could have done more in order to prevent tragic incidents at sea and could have acted more effectively and quickly, on that and on other occasions, to reduce the number of the victims, as well as to ascertain who is responsible. As is always the case for preventive and positive obligations, it is much more difficult, however, to state whether the alleged inadequacy of action taken by national authorities involved at a general planning level, as well as in the specific case of Lampedusa, could lead to Italy being held internationally responsible for a breach of Article 2 ECHR.

At the same time, any alleged lack or inadequacy of effective criminal investigation and judicial review aimed at ascertaining the responsibility and criminal liability of State actors involved in tragic events like the Lampedusa shipwreck is probably regrettable in the light of the Strasbourg case-law on Article 2 ECHR. While an absolute lack of inquiry would not be acceptable, it might be however understandable even for the ECtHR itself, in the framework of what is perceived as a general emergency, that the Italian prosecuting and judicial authorities assume an attitude of self-restraint, refraining from accusing or holding State actors involved in sea rescue operations (as inadequate and belated as these may have been) liable for the consequences of the tragic event.


3. Push-back and expulsion of illegal immigrants

While the existence of a ‘right to be rescued at sea’ under Article 2 ECHR is debateable, a number of other human rights protection issues are involved at the next step, i.e. when irregular migrants are intercepted by law enforcement authorities at sea (irrespective of whether as a result of a rescue operation or not), or after their unauthorised landing on the national territory.

Italian immigration law provides in general for the push-back at the border, to be carried out by the border police, of aliens who are not in possession of valid documents for entry or the right to stay on the national territory.[8] It also provides for different types of expulsion measures against aliens. Among the latter, the first to be recalled is the administrative expulsion, ordered by the Prefetto (the most important local Home affairs administrative authority), in case of irregular entry or residence or threat to public security.[9] Of great importance is also the judicial expulsion which may be ordered by the judicial authority as a criminal law security measure, in addition or in alternative to usual criminal sanctions (detention and/or fine), for aliens having committed a crime.[10]

In the last few years, the Italian immigration law and practice, strongly focused on removal measures like push-backs and expulsions, has been harshly criticised within Italy, for being excessively oriented towards public order/security concerns, exclusion and marginalisation, instead of towards inclusion and integration, and for not being in line with Italian constitutional law, international law as well as EU law.[11]

There is much to debate about the thinking behind the system and one can certainly argue that the system is affected by a number of flaws, at the legislative as well as at the practical level. In this respect, legislative amendments passed during the years 2008-2009 (so-called ‘Security packages’) have undoubtedly contributed to a worsening of the situation. Whatever the truth of this, however, this does not imply that removal of aliens in itself is contrary to international law, notably to the ECHR. The right of a State to have recourse to push-backs and expulsions towards the illegal entry or residence of third country nationals is in principle not contentious. According to the ECtHR case-law, States parties to the ECHR are given a wide margin of appreciation when it comes to deciding the conditions of entry, residence and removal of aliens, and this therefore does not amount to a breach of ECHR law in itself.

However, in the exercise of the abovementioned right/duty to control immigration flows, the States Parties do not enjoy an unfettered discretionary power, but are under an obligation not to undermine the rights guaranteed by the ECHR.

First of all, Article 4 of Protocol no. 4 recognises the right of aliens not to be subject to collective expulsions, meaning that any measure compelling aliens, as a group, to leave a country is prohibited except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual member of the group.[12]

Secondly, as far as individual push-backs or expulsions are concerned, these ones are subject to limits provided for by other ECHR provisions of general application.[13] In particular, under Articles 2 and 3 ECHR, it is prohibited in absolute terms to expel or deport an individual to a State where he/she faces a real risk of death or ill-treatment, either at the hands of the national authorities of the receiving country or at the hands of third private parties, or simply as a consequence of material conditions affecting that country.[14] Moreover, under Article 8 ECHR, an order of removal/expulsion affecting the private or family life of an alien cannot be enforced if it appears unjustified as unnecessary in order to reach one of the legitimate aims referred to in the same provision.[15]

Therefore, push-backs or expulsions cannot be carried out collectively or if they expose an alien to inhuman or degrading treatment in the receiving country and/or affect his/her private and family life in a disproportionate manner incompatible with the ECHR. On the contrary, as long as a thorough examination of the individual case is achieved, his/her removal from the territory should be permitted.

In this respect, it is well known that – in the recent context of massive immigration flows and public demands for a tougher, ‘turning of the screw’ approach, the Italian authorities have adopted a push-back/expulsion practice which has exceeded the limits of international law, leading to serious and recognised breaches of the ECHR.

As for push-backs, a clear violation of the ECHR has been recognised, above all, in the famous case Hirsi Jamaa, in which the practice of massive push-backs towards Libya of Somalian and Eritrean migrants travelling from that country and intercepted by the Italian authorities in the high seas was successfully challenged before the ECtHR. In particular, the Court found a violation of the prohibition of collective expulsion and of inhuman and degrading treatments, as the aliens involved had not been the object of an individual assessment of their situation, and had been sent back to a country (Libya) where they were likely to be subject to prohibited treatment. Moreover, a violation of Article 13 ECHR (right to an effective remedy in case of alleged violation of other ECHR rights) was declared as a result of the fact that the aliens involved had not been given the chance to lodge effective complaints against their pushback.[16]

As for expulsions/deportations, one may think of those equally famous cases – not specifically related to massive immigration, but dealt with in Italy using a similar approach – in which deportation (simply ordered or actually enforced) of a group of aliens convicted for terrorism-related offences to Tunisia, where they faced a concrete risk of undergoing torture or inhuman or degrading treatment, was found to be in breach of Article 3 ECHR.[17]

In each of these cases, ECtHR judgments oblige Italy to comply with the findings by executing the provisions of the judgment, meaning essentially that it must stop the deportation if it has not yet been enforced, and/or pay the applicant an equal compensation.

It could be further argued that State parties’ positive obligation to prevent, investigate and punish the infliction of torture and inhuman or degrading treatment should also apply to these cases of indirect infliction, and oblige national prosecution authorities to prosecute those (politicians, judges, law enforcement officers, administrative staff) responsible for sending back the applicants to the receiving country, exposing them to prohibited treatment. Although this solution may be theoretically correct under the ECHR, the Italian judiciary has not reached that point and it seems very unlikely that this may happen in the future.


4.   Administrative detention of immigrants in the view of their removal

One of the most controversial issues of the Italian approach to massive immigration, in terms of compliance with human rights, is the huge recourse to administrative detention of immigrants in the view of their removal.

Italian immigration law provides the legal basis for the creation, on the national territory, of three kinds of accommodation centres for immigrants: CIEs (Centres for Identification and Expulsion), CPSAs (Centres for First Assistance) and CARAs (Centres for Assistance of Asylum Seekers).[18] Aliens illegally staying on the national territory and hit by a removal order can be detained in CIEs up to 18 months, when immediate execution of an expulsion order proves to be temporarily impossible. Whereas CIEs are in principle real places of detention, subject to all the relevant constitutional guarantees (notably judicial control within strict time limits), CPSAs and CARAs are conceived as open assistance structures, that immigrants are (or should be) free to leave at any time.

The whole system of administrative detention for irregular immigrants in the view of their expulsion – a true deprivation of personal freedom, according to the Italian Constitutional Court[19] – has been widely criticised in many respects, for being neither in line with the Italian constitution, nor with international human rights law.

Firstly, as regards CIEs, it has been argued that they are incompatible with the Italian Constitution – notably with the principle of inviolability of personal freedom and with the principle of equality – as a consequence of the absence of a clear and detailed legal regulation, leading to arbitrariness and uncertainties, lack of transparency and wide differences in treatment from one CIE to the other.[20]

Secondly, as regards CPSAs, many have been denounced on the basis that some of them, notably the huge one in Lampedusa, have been de facto turned into detention structures like the CIEs, where migrants are detained for many weeks with no access to judicial review of their detention nor any time limit.[21]

Thirdly, on a more practical level, a breach of basic human rights may derive as a consequence not of administrative detention itself, but of poor living conditions normally affecting the immigrants detained in CIEs and CPSAs (overcrowding, the inadequacy of hygiene and health care, poor quality of the food and degrading treatment).[22]

There is no doubt that the whole system of administrative detention for irregular immigrants in the view of their removal has been afflicted since its creation by a number of flaws, in its normative structure, as well as, especially, in its practical, everyday application. There is no doubt, therefore, that it requires more attention at the political level and a complete review by the legislator, together with clear and human rights oriented practical guidelines for administrative and law enforcement authorities.

As far as the ECHR is specifically concerned, it is important to remember first that administrative detention of aliens in a view to their expulsion is not in itself prohibited by the ECHR, but considered indeed, as long as it is provided by law, as one of the legitimate forms of restriction of the individual right to personal liberty (Article 5 (1) (f) ECHR). Of course this provision is not sufficient to render legitimate any kind of administrative detention of aliens: the ECtHR has clarified that this would not be the case where national legislation fails to lay down a maximum period of detention of persons with a view to their expulsion.[23]

Moreover, administrative detention has to be carried out in a manner compatible with all the other principles set out by the ECHR. The usual principle of prohibition of inhuman or degrading treatment enshrined in Article 3 ECHR notably applies, so that migrants deprived of their liberty pending their removal procedure must be kept in good conditions in order to prevent their exposure to this kind of treatment. At the same time, under Article 13 ECHR, immigrants must be offered a chance to challenge the legitimacy of their detention.

In the light of the above, administrative detention of illegal immigrants should not be considered, in principle, as prohibited by the ECHR, provided that this kind of detention is accompanied by the guarantees deriving from Article 5 ECHR, that its factual conditions are not as harsh as to amount to inhuman or degrading treatment, and that the possibility of a judicial review of deprivation of freedom is given.

While the factual risk of poor conditions of detention is always inherent in situations like the one occurring in Italy as a consequence of the massive flow over the last few years (this being of course no justification before the ECtHR), and it has probably affected administrative detention of immigrants in Italy on many occasions, it does not appear that administrative detention in Italian CIEs is in itself incompatible with Articles 5 and 13 ECHR. This kind of detention finds, in fact, a legitimate legal basis in national law, is provided with a maximum time limit (18 months), and with the possibility of judicial review of its legitimacy (detention has to be validated by a judicial organ, the Justice of the Peace).

There are, however, grounds to argue that compliance with Articles 5 and 13 ECHR is often, as far as detention in CIEs in concerned, more formal than substantial. In fact, the legal basis is, as mentioned before, quite vague in its contents, whereas judicial validation of the detention order carried out by the Justice of the Peace is affected, in practice, by a number of inefficiencies (frequent failure to respect the strict term, limited chances for the person concerned to communicate with translators and ex officio lawyers, poor quality of the legal reasoning provided for in judicial decisions, etc.).[24]

Moreover, what appears even more problematic is, instead, de facto detention in some CPSAs, like in Lampedusa, which has been recently challenged before the ECtHR for the alleged breach, among the others, of Articles 5 and 13, as it had no legal basis in national law, nor was subject to judicial review.[25] In the light of ECHR principles and case-law, it can be reasonably expected that the application will be upheld.


 5. Criminal law provisions and penalties

In the wide context of massive illegal immigration, criminal law provisions can address different actors. Firstly, smugglers, traffickers and people aiding and abetting illegal immigration; secondly, the illegal immigrants themselves; thirdly, state representatives (law enforcement officials) deemed responsible for human rights violations punished as criminal offences by national law and committed in the framework of immigration flows management.

i) The first case is of course the less problematic one. Heavy criminal sanctions for smugglers, traffickers, and people aiding or abetting illegal immigration are provided for in every legal system, and there is no question about the importance of enacting such legislation nor about its compatibility with international human rights law.[26]

The Italian criminal law system is no exception in that respect, providing for heavy criminal law sanctions for smugglers, traffickers, aiders and abetters.[27] Moreover, the need for effective criminal law prosecution and punishment of such conduct has led the Italian Court of Cassation to widen the scope of the abovementioned criminal law provisions, for example by stating recently that Italian jurisdiction for the crime of aiding and abetting illegal immigration may exist, at some conditions, even where immigrants have been rescued outside the territorial seas, in international waters.[28]

ii) The second case (criminalisation of immigrants themselves) is clearly more problematic, especially in the context of massive illegal immigration, where it does not involve single aliens, but thousands of desperate people trying to escape the hardships encountered in their home countries and seeking a better future in Europe.

Whereas many European legal systems traditionally punish illegal immigration with criminal law sanctions, a criminalising approach making use of criminal law sanctions as a privileged instrument to fight illegal immigration had not been adopted in Italy until the first decade of the new millennium, when changes at the political level led to a number of legislative amendments which contributed to an increasing criminalisation of illegal immigrants. In particular, among others, in 2002, new criminal offences of non-compliance with the order for voluntary departure and of re‑entry after expulsion were introduced; in 2008, it was stated that a special aggravating circumstance, leading to an increased criminal sanction, should apply to any crime committed by irregular immigrants; finally, in 2009, illegal entry into the territory (even for the first time) was made a criminal offence and harsher criminal sanctions were provided for irregular immigrants failing to show their ID documents to law enforcement officials.[29]

Since its first introduction, the legal system of criminal sanctions for immigrants has been widely criticised in Italy for being ineffective and at the same time not in line with human rights protection standards. This criticism, which has merit in many respects, has often been upheld when raised before the highest Courts, and the Italian system based on a criminalising approach has been partly mitigated, in many of its more controversial aspects, by the Italian Constitutional Court,[30] by the Court of Justice of the EU[31] and by recently planned law amendments.[32] However, it is still in force in many of its distinctive and essential features.

As far as the ECHR is concerned, it does not seem, on the contrary, that this criminalising approach is in itself incompatible with the ECHR. The Convention leaves to Contracting States a wide margin of appreciation when it comes to deciding which conduct should be criminalised, provided that this conduct does not consist of the exercise of other individual rights. This is however not the case, as the ECHR does not attribute to individuals the right to enter or stay the territory of a Contracting State other than their own.

iii) The third case (criminal punishment of State representatives) is unlikely to occur in the context of immigration management. Theoretically, human rights violations of immigrants that may occur in this context as a result of State representatives’ actions or omissions (for example, unlawful deprivation of personal freedom, or failure to intervene promptly in order to prevent loss of life) may lead not only to State responsibility under the ECHR, but also to individual criminal liability under national law. Failure by the State to prevent, investigate and punish such conducts effectively may also amount to an ECHR violation.

As already briefly discussed above, theoretically, the failure of the Italian authorities to investigate and punish under national criminal law any alleged voluntary omission in the context of events like the tragic Lampedusa shipwreck could amount to a violation of Article 2 ECHR.[33] Similarly, failure to investigate and punish under national criminal law any form of unlawful deprivation of personal liberty of immigrants, like the one allegedly carried out at the CPSA in Lampedusa could amount to a violation of Article 5 ECHR.[34]

It is however very unlikely, in the actual context of massive immigration, that the Italian judiciary would accept the approach of treating State representatives and their administrative or practical acts aimed at facing what is perceived as an emergency as worthy of criminal censure, even though in principle they may amount to serious breaches of human rights, as some NGOs and immigrants’ lawyers have suggested. It is therefore not surprising, and somewhat understandable, that the Italian prosecution offices of Agrigento and Rome have recently asked and obtained, the closing of the proceedings that had been opened about the alleged de facto detention in the CPSA in Lampedusa.[35] It is in many ways more important to put an end to the violation itself, than to ensure criminal prosecutions of the responsible, and luckily this has been the case (the CPSA has been dismantled few weeks after the case has been raised).


6. Final remarks

There is no doubt that the general and overall management of massive immigration flows in Italy during the last years has been affected by a number of flaws and deficiencies, which have led at some points to violations of human rights. Of these alleged violations, denounced by lawyers and NGOs, some have already been recognised and declared at the highest level by the ECHR in individual cases (push-backs towards Libya, deportations towards Tunisia), others will be considered soon (deprivation of liberty in Lampedusa CPSA), others have not been challenged at all (failure to protect life of incoming migrants in Lampedusa and elsewhere).

These alleged or recognised violations are most likely the result of a problematic mixture of many factors, including reactive action, caused by a lack of a long-term rational strategy and occasional endorsement of xenophobic pressures at the political level, with symbolic legislative amendments mainly aimed at gaining easy political and electoral consensus and at reassuring the public opinion. It may also be down to issues of judicial inactivity, self-restraint and workload, administrative negligence and unlawful practices, limited human and financial resources, as well as objective factors, like the objective difficulties inherent in the task of managing a massive flow of thousands of poor and desperate people for a country which is particularly exposed to it as a result of its geographical position.

What is much more difficult to say is whether these alleged or recognised ECHR violations occurring within Italy’s jurisdiction are structural or merely occasional.

As a starting point, it derives from the brief analysis carried out in the previous paragraphs that, as disturbing as it may be, that the Italian legal system dealing with illegal immigration management, including its controversial cornerstones (wide recourse to push-backs and expulsions, administrative detention, criminalisation of irregular entry or staying) is not in itself structurally incompatible with the ECHR.[36] Therefore, in this respect, ECHR issues will only arise, and generally have arisen, as the consequence of a poor practical enforcement of national law or simply of bad practices (collective push-backs to Libya, de facto detention in the Lampedusa CPSA and the belated intervention in the case of the Lampedusa shipwreck may be all good examples).

Of course, if not promptly and effectively brought to the attention of international authorities and of the organs in charge of protection of human rights, these alleged violations, even though admittedly deriving from practices which are occasional and limited in time and scope, may easily and quickly become structural, as has been the case for the Lampedusa CPSA. For this reason, denouncing these human rights violations and bringing them to the attention of the international authorities and, if appropriate, before the ECtHR is always very important, as this is the best way to impose on national authorities a progressive adjustment of their future policies and actions, aimed at enhancing the overall human rights compliance of the system.

As for the reasons lying behind these bad practices, they are not always easy to identify. Non‑compliance with the ECHR can be, in practice, the consequence either of a structured restrictive policy deliberately adopted by national authorities, or simply of negligence, absence of human rights training and lack of resources, or more often, as is probably the case for Italy, a mixture of both.

Distinguishing between the different reasons lying behind these bad practices would not necessarily be relevant for national judges, as they may tend to assume in any case a self‑restraint attitude when it comes to investigating or even punishing human rights violations perpetrated by State representatives in charge of the management of immigration emergency (as has been the case for criminal inquiries concerning the situation in Lampedusa). It would probably not be relevant before the ECHR either, as even objective factors, like the lack of financial resources, are not considered, in general, as proper justifications for serious human rights violations.

It would be relevant, however, in assessing in general, and not only under a strictly legal point of view, the overall attitude adopted by the State.



[1] On this tragic event and its legal implications, see F De Vittor, ‘Il diritto di traversare il Mediterraneo… o quantomeno di provarci’ (2014) 8 Diritti Umani e Diritto Internazionale 63.

[2] European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221.

[3]Vilvarajah and others v the United Kingdom, App nos 13163/87, 13164/87, 13165/87, 13447/87 and 13448/87 (ECtHR, 30 October 1991).

[4] For an updated and official overview see, Handbook on European Law Relating to Asylum, Borders and Immigration (EU Fundamental Rights Agency/European Court of Human Rights/Council of Europe 2014).

[5] See, among the most recent contributions, A Di Martino, F Biondi Dal Monte, I Boiano, R Raffaelli, The Criminalization of Irregular Immigration: Law and Practice in Italy (Pisa University Press 2013); A Cavaliere, ‘Diritto penale e politica dell’immigrazione’ (2013) Critica del Diritto17.

[6] See, succinctly, De Vittor (n 1), 66, fn 14, and S Trevisanut, ‘Is there a Right to be Rescued at Sea? A Constructive View’ (2014) Questions of Intl L, available at <www.qil-qdi.org>.

[7]Osman v the United Kingdom, App no 87/1997/871/1083 (ECtHR, 28 October 1998).See F Bestagno, Diritti umani e impunità. Obblighi positivi degli Stati in materia penale (Vita e Pensiero 2003).

[8] See Decreto Legislativo 25 luglio 1998, n 286, Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero, Gazzetta Ufficiale della Repubblica Italiana (hereinafter GU) n 191 of 18 August 1998, Suppl Ordinario n 139 (hereinafter, ‘TU Immigrazione’), art 10.

[9] See art 13 TU Immigrazione.

[10] See arts 235 and 312 of the Italian Criminal Code, as well as art 15 and 16 TU Immigrazione.

[11] See, among others, Di Martino and others (n 5), 21.

[12] See Conka v Belgium, App no 51564/99 (ECtHR 5 February 2002).

[13] Art 1, Protocol no 7 (Procedural safeguards relating to expulsion of aliens), does not apply in the context of massive illegal immigration, as it refers to ‘lawfully resident’ aliens.

[14] See inter alia the famous judgments Soering v the United Kingdom,App no 14038/88 (ECtHR 7 July 1989) and Chahal v the United Kingdom, App no 22414/93 (ECtHR 15 November 1996). A similar prohibition is to be found in Italian immigration law (art 19 TU Immigrazione).

[15] See among the others, Boultif v Switzerland, App no 54273/00 (ECtHR, 2 August 2001); Benhebba v France, App no 53441/99 (ECtHR, 10 July 2003); Maslov v Austria, App no 1638/03 (ECtHR, GC, 23 June 2008).

[16]Hirsi Jamaa and others v Italy, App no 27765/09 (ECtHR, GC, 23 February 2012).

[17]Saadi v Italy, App no 37201/06 (ECtHR, GC, 22 February 2008); Ben Khemais v Italy, App no 246/07 (EctHR, 24 February 2009); Trabelsi v Italy, App no 50163/08 (EctHR, 13 April 2010).

[18] Art 14 TU Immigrazione; art 20, decreto legislativo 28 gennaio 2008, n 25, Attuazione della direttiva 2005/85/CE recante norme minime per le procedure applicate negli Stati membri ai fini del riconoscimento e della revoca dello status di rifugiato, GU n 40 of 16 February 2008; and art 23, Decreto del Presidente della Repubblica 31 agosto 1999, n 394, Regolamento recante norme di attuazione del testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero, a norma dell’articolo 1, comma 6, del decreto legislativo 25 luglio 1998, n 286, GU n 258 of 3 November 1999, Suppl Ordinario n 190.

[19] Corte costituzionale, Judgment n 105/2001.

[20] See, among others, Di Martino and others (n 5), II ff. of the Introduction.

[21] L Masera, ‘Il “caso Lampedusa”: una violazione sistemica del diritto alla libertà personale’ (2014) 8 Diritti Umani e Diritto Internazionale 83.

[22] ibid.

[23]Mathloom v Greece, App no 48883/07 (ECtHR, 24 April 2012), which concerned an Iraqi national who was kept in detention for over two years and three months with a view to his deportation, although an order had been made for his conditional release.

[24] Di Martino and others (n 5), 58 ff.

[25] See Khlaifia and others v Italy, App. no 16483/12, pending, communicated to the Respondent Government on 27 November 2012. For a thorough analysis of this case, see Masera (n 21), 91 ff.

[26] Criminalisation of these conducts is not only encouraged, but even imposed by international law: see art 6 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319. It is important however to emphasise that, under international law, humanitarian rescue action at seas (for example, carried out by seamen), leading to the landing of illegal immigrants on the national coasts should be considered as justified and should never be criminalised, see De Vittor (n 1), 64.

[27] See art 601 of the Italian Criminal Code (trafficking in human beings), and art 12 TU Immigrazione (aiding and abetting of illegal immigration). For an overview, see among the others E Lanza, Gli stranieri e il diritto penale (CEDAM 2011) 429 ff.

[28] Corte di cassazione, judgment 28 February 2014, available at <www.penalecontemporaneo.it>.

[29] For more details, see L Degl’Innocenti (ed.), Stranieri irregolari e diritto penale (3rd edn, Giuffré 2011).

[30] See, among the others, Corte Costituzionale, judgment n 249/2010, which declared contrary to the Constitution the aggravating circumstance provided for illegal immigrants committing a crime.

[31] See the famous judgment of the CJEU, in Case C-61/11 PPU Hassen El Dridi [2011] ECR I-3015, according to which imposing a custodial penalty to irregular immigrants not complying with a decision ordering voluntary departure, instead of enforcing the return decision, is not compatible with the EU ‘Returns’ directive (Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348).

[32] The criminal offence of illegal entry or residence, which has been substantially declared not incompatible with EU law by the CJEU (Cases C-430/11 Md Sagor (CJEU, 6 December 2012) and C-522/11 Abdoul Khadre Mbaye (CJEU, 21 March 2013)) is expected to be transformed by the Italian legislator into an administrative offence.

[33] See section 2 above.

[34] See section 4 above.

[35] See Masera (n 21), at 88.

[36] A totally different issue is, of course, whether or not that system is incompatible with Italian constitutional law, EU law or other provisions of international law.