The “security” decrees, the immobility of the parliament and the role of substitution exercised by judges

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#Constitutional Court #Constitution #human rights #judge #immigration #regulation #politics #judgement #safety #society

Issue 10/2020

Abstract. The “security” decrees no. 113 of 2018 and no. 53 of 2019, that were enacted by the 5 Stars Movement and League Government (in office from 1 June 2018 to 5 September 2019) and strongly supported by the then Minister of the Interior Matteo Salvini , marked a further and serious involution of the Italian immigration policy, and highlight once again, in the face of the inaction of parliament, the role of substitution exercised by judges.
The substitution role was exercised not only by the Constitutional Court, whose judgments no. 194 and no. 195 of 2019 and the recent judgment no. 186 of 2020 are examined in this study, but also by the ordinary judiciary which, before the intervention of this last judgment, tried to overcome the obstacle to the recognition of the right of asylum seekers to register through a non-rigid reading of article 13 of the first “security” decree. Add to this the very important judgment of the Civil Court of Rome no. 22917 of 2019, reaffirming the principle of non-refoulement, in the wake of the jurisprudence of the European Court of Human Rights.
It is hoped that, even under the impulse of the judges’ decisions, Italian politics and, therefore, the legislator will recover a more respectful vision of human rights towards the migratory phenomenon, which would restore Italy’s credibility and authority for the challenges to be faced in the European Union.

SUMMARY: 1. Introduction. – 2. The judgments of the Constitutional Court no. 194 and no. 195 of 2019 and the issue of “redundancy”. – 3. The judgment no. 186 of 2020 and the constitutional illegitimacy of the rule on exclusion from registration. – 4. The principle of non-refoulement. The judgment of the Civil Court of Rome no. 22917 of 2019 and the judgment of the European Court of Human Rights in the case of Hirsi Jamaa and others v. Italy. – 5. Concluding considerations. For a supportive, pragmatic and intelligent approach to the immigration problem.

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