Italy: Restricting freedom of movement for EU citizens
01 January 2008
After a turbulent passage through parliament, a new decree to guarantee security through the expulsion of EU nationals who endanger public safety was approved on 28 December 2007, and published in the
Gazzetta Ufficiale on 2 January 2008. In fact, unless it was converted into law, the security decree approved "urgently" for this purpose on 1 November 2007 in the wake of a murder by a Romanian, would have ceased to be valid (see
Statewatch news online, November 2007). Moreover, this meant that it needed to be changed somewhat, as the same decree cannot be introduced repeatedly. The measure is especially significant because it sets a precedent that undermines the principle of freedom of movement in the EU, allowing expulsions on the basis of a wide interpretation of what a "threat to public security" consists of, and identifying "foreigners" from other EU countries as liable to present such a threat.
The decree initially targeted Romanians, but was drafted so as to avoid any charges of discrimination against this nationality that would render it unlawful, resulting in it being applicable to "foreigners" from any EU country. Thus, new grounds for expelling or limiting the movement of EU nationals were established, following those conceived to tackle football hooligans and demonstrators. The conversion of the decree into law involved a number of controversial issues, such as the introduction of a norm against racial and gender discrimination that was eventually struck off after a drafting error meant that it referred to the wrong EU instrument, the Amsterdam Treaty rather than the Treaty establishing the European Community (TEC).
The new decree: expulsions for suspicion of terrorist activity
The measure seeks to ensure the immediate effectiveness of expulsions and to establish rules for the removal of EU member state citizens for the prevention of terrorism. The changes introduced include the involvement of ordinary judges in the oversight of expulsion decisions, originally entrusted to
giudici di pace (honorary "judges of the peace", responsible for civil cases and minor criminal offences, given competencies to validate expulsions in September 2004) and the possibility of expelling EU citizens suspected of terrorism as a result of:
well-grounded reasons to believe that his presence in the territory of the State may facilitate terrorist organisations or activities, including of an international kind, in any way.
This involves an extension of the scope of law 155/2005 (see
Statewatch News Online, August 2005) to counter international terrorism, and of legislative decree 30/2007 on the removal of third-country nationals suspected of terrorism, envisaging expulsion proceedings for EU nationals, while "respecting the principle of proportionality" and without resulting "from reasons that are unrelated to the interested party's own behaviour" (this also applies to expulsions for public security reasons, below). In these cases, "the expulsion order is immediately executive", to be carried out under the authority of the
questore (local administrative police chief) irrespective of whether the decision is impugned or appealed.
Appeals may be filed both before the competent Italian courts or through consular or diplomatic offices abroad, and may include a request for the measure to be suspended, although this does not necessarily entail its actual suspension, and the appellant may be allowed back into Italy for the proceedings. In cases involving people who are undergoing trials for criminal offences, they may be allowed back into Italy for the "time [that is] strictly necessary to exercise the right of defence", insofar as their presence would not "cause serious disturbances or serious danger for public order or security" (this condition also applies to appeals, above). Such orders also entail re-entry bans for no less than five years and a maximum of ten years. When th