IL DIRITTO PENALE DELL’IMMIGRATO: BREVI SPUNTIPER UNA RIFLESSIONE SUL DIRITTO PENALE DELLA PAURA

Criminal law of immigration should be more conveniently defined“criminal law of the irregular immigrant”, centred, as it appears essentiallyfocused on the criminalisation of mere subjective statuses, instead of behavioursharming legal goods. In fact, behind the cover of an apparent balance ofthe need for protection of human rights and the interest to the control of migrationflows, the criminalisation system in this sector appears greatly unbalancedtowards the punishment of socially dangerous types of authors. This is,therefore, a model of criminal law very similar to the “enemy criminal law”.The ratio inspiring the regulations has not changed even after its adaptation,through law 2 August 2011, n. 129, to the obligations set by the EuropeanDirective 2008/115/EC. Indeed, this has not determined an overall improvementof the system as regards the compliance with the fundamentalprinciples of criminal law, but, on the contrary, it increased the “ancillary”function of criminal law with regard to the administrative procedure of repatriation,without eliminating the irrational aspects of the repressive choices ofthe Italian legislator