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Return Directive and art. 14 immigration

Return Directive and Art. 14 immigration
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intervention in the debate [ Tomaso Epidendio ]

SUMMARY 1. The relevance of the International Criminal return directive

2. The effectiveness of direct or indirect return directive

3. Conclusions

1. The relevance of the International Criminal return directive as well known, with the entry into force (1.12.2009) of the Treaty of Lisbon provides for the possibility of issuing directives and regulations (with all the consequences relating to the character of this legislation and the European effective in the Member States) in areas of criminal law and police within the limits of powers laid down in Articles. 69 A (82), 69 B (83), 69 C (84), 69 D (85), 69 E (86), 69 F (87), 69 G (88) and 69 H (89) and extension about the powers of the Court of Justice of the European Union (formerly European Community). However, under Articles. 9 and 10, Title VII of the Protocol 36 on the transitional provisions of that Treaty of Lisbon, the acts adopted before will continue to apply in accordance with the importance they attach to the first entry into force of that Treaty. [1] However, the cd. Return Directive (Directive 2008/115/EC) was adopted before the Treaty of Lisbon mentioned [2] , with the result that, by virtue of that transitional provision, this directive will recognize, in criminal cases, the value given such acts before the entry into force of the Treaty of Lisbon, at least until the Community institutions will take advantage of new skills directly attributed to them in criminal matters. Under the arrangement prior to the Lisbon Treaty - as outlined in the notes issued by the Grand Chamber judgments of the Court in 2005: European Court of Justice, Grand Chamber, 13 September 2005, Commission v. Council, which had annulled the EU Council Framework Decision of 27 January 2003 (2003/80/JHA) on the protection of the environment through criminal law, allowing the application of the Commission had claimed that the Community competence in environmental matters, as set out in Articles. 3, No.1 Lett. I), 174 and 176 EC Treaty, European Court of Justice, Grand Chamber May 3, 2005 Berlusconi and others; European Court of Justice Grand Chamber Pupino June 16, 2005 - Community institutions have no competence to adopt implementing measures with direct effect of criminal law of the Member State (such as regulations or directives car application). However, Community law directly applicable, issues in the area of \u200b\u200bCommunity competence (such as environmental protection), under the principle of primacy of Community law on the inside, may affect domestic criminal laws where the facts in which they provide include regulatory elements included in the case of incriminating state standards, that define the elements for which you must apply the rules laid down in other areas (civil, administrative, commercial, etc ...). The standard internal that defines the normative element of this case can not be applied (ie "under" or improperly "disapplication 'Community) to contrast with directly applicable Community law (which, as such, should apply in its stead) the penal precept can not be considered integrated, so that the accused should be acquitted because the crime does not exist (for example, the repeal of duties to integrate intra prevents the smuggling of imported goods within the EU). It should also pay attention to the fact that the rule extrapenale integrator is not in itself unlawful, but simply is not raised in Community competence, leaving behind its application outside of that context, what distinguishes the institution of the cd. "Disapplication Community" by the different institutions of the non-application by the ordinary judge of the administrative act (which implies a review of illegality of the act). [3] similar distinction between the two institutes of the "under" and "non-application" is not a mere theoretical subtlety, because you can understand why the Constitutional Court has been able to recognize this power of the ordinary courts "in enforcement "(or" non-application community "), just as it does not imply an opinion of the illegality of domestic law (which our Constitution reserves to the Court), but only a recognition (interpretation, characteristic of the ordinary courts) of various fields of application of different regulatory requirements (EU and domestic). This is the approach taken by our Constitutional Court - the outcome of his cd. "Community way" that, in relation to the contrast between the internal rules and standards, then led her to abandon the ways of the chronological order of the unconstitutionality of the internal rules for the fact that the non-implementation of the national law by the court common with the ruling made in the case note Granital in 1984 (Corte cost. No 170/1984) that: - the Community legal system and State are separate and autonomous, with the result that the legislation does not enter the Order of the State, each rules remains valid and enforceable in accordance with its national conditions imposed by itself (so-called dualistic theory, unwelcome to the Court of Justice) - any conflicts between the internal rules and regulations directly effective Community must be resolved according to the criterion of competence in the sense that where the Community provision has direct effect and recognition of the scope of Community competence, this standard is not abrogated contrasting (As would happen under chronological order) and even declared illegal (under the criterion of hierarchy), but simply not imposed because of the jurisdictional fact, since, with the ratification and implementation of the Treaty, the State allowed under Article .11 paragraph 2 of the Constitution to such limitations of sovereignty, enabling the provision of Community law only to come in relief, retiring to match the scope of the national law - the rule of Community law has no direct effect, however, where conflicts with the law, only legitimize the common judge to raise the constitutionality of an accident, which must always do so (denouncing the order of execution of the Treaty) if it considers that the Community provision violates the fundamental principles of constitutional order (so-called theory of counter-limits). The cd. Return Directive was adopted under the Community competence in point of harmonization of national legislation on expulsion, with the result that it, if compliance with the conditions necessary to what could theoretically have a direct effect only on the subject (of relevance Community): In fact, since Article. 14 Legislative Decree no. 286/1998 criminal sanctions under the non-compliance with administrative measures adopted in the expulsion procedure under Italian law, any direct impact of legislation on this administrative process can reverberate on criminal law, even under the arrangements prior to the entry into force of the Treaty of Lisbon, albeit rather complex and not at all evident, so it can be easy source of misunderstandings. Indeed, if (and it repeats itself) the return directive had direct effect and it is considered that the rules of domestic law in conflict with that directive, then those rules of domestic law on the expulsion should not be applied (disapplication Community) PROBLEMS: in their place apply the rules contained in the directive: now the administrative measure could be considered unlawful infringement of Community law, the administrative authority (Which organ of the State shall respect the law) should apply instead of internal ones, and, consequently, the administrative order of removal may be disregarded (disapplication administration) by the criminal court for a violation of the law resulting in illegality (EU) from apply in place of the inconsistent internal state ("inapplicable"). Therefore, even if you recognize direct effect to the EU directive, this would "only" the non-application of the administrative removal and never inapplicable to direct criminal law provisions in art. 14 d. lgs. n.286/98, since this rule, as criminal before the Lisbon Treaty and in accordance with the Protocol on transitional provisions cited do not fall directly within the Community interest. [4] just has rebranded as the non-application of criminal law could not be justified even if it is decided that the return directive codifies a principle of maximum limits on the proportion of personal freedom on the person who is opposed to removal, thus materializing the corresponding principles of art. 49 of the CD. Nice Charter. It 'true, in fact, that Article. 6, paragraph 1 of the Treaty on European Union now requires the recognition of "rights, freedoms and principles enshrined in the Charter of Fundamental Rights of 7 December 2000 (known as the Nice Charter) and decided that the Charter "has the same legal value as the Treaties". However, the Constitutional Court has already stated, a fundamental decision on the European arrest warrant, which even the opposition with a principle of the Treaty may always be considered in itself sufficient to justify the non-application (or rather "inapplicable") of the criminal law internal conflicting. [5] In fact, it was argued in the Constitutional Court ruling. 12 May to 21 June 2010 No. 196, that "the contrast of the standard [internal state] with the principle [of non-discrimination in this case in art. 12 EC] is not always in itself sufficient to allow the non-application of conflicting national rule by the ordinary courts "because" even though in principle to be applied directly and effectively, it is equipped with a flow rate absolute such as to indicate always incompatible the national standard will formally contrasts "being allowed to waive the national legislature, in other words, the nature of" defeasible "connotes that the principles do not allow the non-application, also held precluded by the fact that relates to criminal matters, ie matters not regulated by Community rules of direct effect before the Treaty of Lisbon and for which, under the transitional provision, shall continue to apply until the previous regime that the EU does not act with criminal provisions having direct effect. 2. The effectiveness of direct or indirect return directive must, however, doubted that the return directive has direct effect. In order for a Community instrument may be deemed to have direct effect should be that: - the directive is detailed, the sense that
is clear, that is, not ambiguous or equivocal
precise, specific enough and does not require further action to be applied;
unconditional, which is to provide the framework does not undergo conditions to be applied - is the deadline for implementation of the state. [6] However, if the requirement is clearly integrated the deadline for implementation (actually expired December 24, 2010) [7] , the partial punctuality with which the directive does not overlook the fact that the the same can not be considered at all unconditional and precise to the spaces left to the discretion of the national legislature, in particular: Article .2.2 which provides for the possibility of not applying the Directive to persons already "stopped" or "discovered" in the illegal border crossing, with flaw clarity of even the word "discovered" that could justify the exclusion of the application of the directive to establish the next transit of irregular, consistent with the conclusion of the voluntary rule (certainly reasonable in the case of regular entry on the territory nationally, but much less out of this hypothesis); art. 7 that provides for the intervention of the national legislature to establish exceptions to the basic operation of the expulsion outlined in the directive that implies a clear definition of rules and exceptions, for example, in danger of escape point (which parameters should be commensurate decided by national pursuant to art. 2 of the Directive), the existence of family and social ties, the granting of a period on demand, etc.. The goodness of the findings described above are easily verifiable in the light of the fact that, if it is decided that the direct effect, should also consider that the administrative authority may adopt measures relating to the procedure of deportation solely on account of provisions in the Directive, without need any other integration, having the same apply this legislation in place of the internal inconsistency. It 'true that the Circular of the Ministry of Interior - Department of Public Safety - prot. 400/B/2010, assuming a compatibility problem with the procedure of expulsion regulated by national legislation with the EU directive, intended to give to the prefectures and the Police Headquarters is responsible to comply with the performance of appropriate motivational burden. Nevertheless, it can be seen as the Quaestor, solely on the basis of the Directive, measures to create from nothing without any discipline of detail, such as regular reporting to the authorities or to provide adequate financial guarantees, or locate the danger of escape absence of legal parameters that the same EU directive considers necessary, all spilling over the nature of existing measures (order of removal, which presupposes the absence of motivation to escape danger and requires motivation on the impossibility of holding in CIE). 3. Conclusions In the absence of the aforementioned requirements, the EU directive can not have direct effect, but there still remains a Community instrument with indirect effect that in case of conflict with international rules, certain other obligations to the court. Apart from the requirement of groped the interpretation thereof, are in particular: - to raise interpretive ruling by the Court of Justice (mandatory referral to the court of last resort in case of an act that is unclear in the absence of prior pronouncements of the same Court of Justice, which has the monopoly of interpretation on EU standards) - to raise the question of constitutionality by contrast with the art. 117 of the Constitution as incorporated in the directive (which may be interpreted by the Court of Justice). In this last respect, however, it must be noted how it could be doubted even a real contrast to the specific criminal provisions of Art. 14 Leg. N.286/98 with those of the Return Directive. In fact, the assumption from prosecution under Article mechanism. 14 cit., Is a mechanism based on their voluntary departure, as expressly stated in the Directive and the space left to the State (under art. 8 of Directive EU) to adopt all necessary measures to make the decision to return after the failed voluntary departure, must be considered in any case that warrants the full expectation of a crime as art. 14 cited. that, through the threat of criminal sanctions for the subject inottemperante, this undoubtedly promotes voluntary departure. On the other hand, the prediction of such measures shows also how the Community legislature clearly distinguishing the deprivation of liberty for the purpose of deportation compulsory deprivation of liberty as punishment for non-compliance with established voluntary estrangement (subject, of course, art. 8 of the Directive), thus could not be used for the realization of the fundamental principle of proportionality of punishment (not considered repeatedly violated by our Constitutional Court in previous ballots, the constitutionality), the duration of the restriction of freedom for the compulsory enforcement of ' expulsion (already established by the laws, in a time period significantly less than the maximum prescribed by the Directive). That does not seem correct to compare the detention willing to punish a crime (voluntary removal of non-compliance) with the restrictions on personal freedom forced the purpose of deportation is also evident from following delivery of the same Court of Justice of the EC in its interpretations of the Return Directive. By ruling of the Court (Grand Chamber) of 30 November 2009 (reference for a preliminary ruling dall'Administrativen sad-grad Sofia - Bulgaria) - Said Shalimovich Kadzoev (Huchbarov) (Case C-357/09 PPU) has been held that a detention placed in an asylum procedure, different from the procedure of detention for deportation, can not be equated with detention for the purpose of removal governed by. 15 of the Directive. The Italian Constitutional Court, when considering, she first deadline Directive, the contrast between the Directive and Article. 10 bis of Legislative Decree no. 286/1998 punishes the mere condition of the underground, who wanted to anticipate any conflicts of legislation does not relate to the offense under scrutiny, but rather the internal regulations enforced at the border that identify accompanying a normal mode of implementation of any expelled. And the accompaniment is enforced rules other than those examined here that punish non-compliance with the requirement of removal within the time given its place in the accompaniment enforced. The contrast between Community law and legislation must then be considered by the Administrative Procedure to deport him, without the directive will ensure that the State, as a deadline for voluntary departure, penalizes those who do not comply. In the absence of contrast seems, then, that can not be considered available in the criminal nor the ways of the ruling or interpretation of the question of constitutionality. [8]
[1] See S. PEERS, The 'Third Pillar acquis' after the Treaty of Lisbon Enters into Force in Statewatch Analysis, December 2009. [2] necessary, to distinguish the time of entry into force (which produce the typical effects, such as just the obligation to produce legislation for the state) from that, later, in which there may be other possible effects (as is the direct effect in domestic law at the expiry of the deadline for its implementation). [3] The primary distinction is theoretical and institutional level (for a clear and concise exposition cf. R. BIN - P. Caretta, constitutionally the European Union, Bologna, 2005, 130 ff.). [4] Moreover, that the return directive is not intended to deal with criminal matters is made explicit in the preamble to the Directive. [5] In truth these forms of "non-application", in contrast to fundamental principles, are likely to undermine the system of the CD. "Inapplicable" (possibly non-residual, indeed, no space, external to the Community, in which the standard state, according to the criterion of competence, can be applied). Will thus inevitably to the fore the problematic of the different design, monistic and dualistic relationship between Community law and the internal state (respectively, characterizing the case law of supranational courts and constitutional state). The theoretical and conceptual differences of the two basic conceptions, until now, had not prevented the system to operate in practice, but the delicate balance on which that system was based is now in danger of collapse, without the concept cd. Multilevel system that is able to sort out all the practical problems that relations between States and Union Act and that, perhaps, would be overcome only applies if the issue has reached the landing where the theory of "regulatory networks" in the ongoing studies on cd. "Rights complex" on this difficult issue, not tackled here, is allowed to postpone my EPIDENDIO TE, Community law and criminal law. Guide to legal practice, Milan, 2007, and to VA, the complexity of the law. New routes of contemporary legal thought, by Calbucci, Napoli, 2009. [6] traditional reference points of law Community are C-41/74 ECJ 4.12.1979, Duyn, Ratti C-148/78 ECJ 5.4.1979, 19.1.1982 ECJ -8/81 Becker, Marshall C-152/84 ECJ 26.2.1986; ECJ 26.9 .2000 C-443/98 Unilever [7] Failure expiry of that period had led to the Constitutional Court. not to consider the recent ruling in the Directive No 250/2010. [8] Unlike could instead evaluate the impact of the return directive interpretation ("satisfactory") to give the general clause of "just cause" (contained in .14 cit.) Clause in which it must now surely cover the situations of the guideline based the possibility of extension of the deadline for voluntary departure, that since the interpretative obligation is also triggered in the presence of Community law directly applicable and should not, however, prevent the conflict that would arise, admitting that criminalize non-compliance by a voluntary departure in a fixed period of five days that the Community legislature ordinarily does not only want wider, but determining how to extend these in certain situations: the very fact that the basic period of seven days is not unconditionally by the Directive, which Melius allows exceptions, both in reduction of protection that prevents enforcement of a case of an incident that warrants the constitutionality or concerns to be addressed with the preliminary interpretation, moreover incompatible with the "clarity" of the act that necessarily must exist for the supporters of the direct effect of the directive, but the extensions to be granted for voluntary departure under the Directive, of course allow detection of the minimum content of the general clause of justification, by integrating the information already provided in respect of the Constitutional Court.

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