Abstract
L’articolo, muovendo dalla considerazione dell’incremento delle funzioni consultive assegnate dal legislatore alla Corte dei conti, ne analizza i rapporti con il controllo e con la funzione giurisdizionale. Alla luce dell’emersione di un nuovo settore del diritto, avente a oggetto le relazioni intergenerazionali, si interroga infine sulle ricadute che questo fenomeno può avere sul ruolo della Corte dei conti

The new challenges of the “Corte dei conti”: the difficult balance among jurisdiction, control and advisory activity, also looking at the crises of modernity 

Starting from the consideration of the new advisory functions assigned to the Corte dei conti, the article analyzes the relations among them, control and the judicial function. Focusing on the emergence of a new sector of law, concerning intergenerational relations, the article finally exams the repercussions that this trend can have on the role of the Corte dei conti

L'articolo Le nuove sfide della Corte dei conti: il difficile equilibrio tra giurisdizione, controllo e attività consultiva, guardando anche alle crisi della modernità* proviene da Nuove Autonomie.

INDICE

DOTTRINA

Patrizia Marzaro – Partecipazione consapevole e giusto procedimento di pianificazione – 5
Fabrizio Fracchia, Pasquale Pantalone – Le funzioni amministrative in tema di caccia – 17
Clemente Pio Santacroce – Partecipazione e governo del territorio: l’esperienza toscana – 35
Giovanna Iacovone – Sostenibilità urbana: quali regole per l’equilibrio territoriale e la diffusione delle attività produttive. Uno sguardo a Matera Capitale europea della cultura – 51
Giovanna Pizzanelli – Il contributo dell’accesso alle informazioni ambientali alla tutela del patrimonio pubblico – 71
Pablo Cunha Malheiros, Ilton Norberto Robl Filho – Regularização fundiária urbana e aplicação imediata da lei n. 13.465/17 no Distrito Federal do Brasil – 105
Gaetano Armao – Piersanti Mattarella, le riforme amministrative ed il meridionalismo – 123
Rossana Caridà – Il processo di differenziazione regionale ex art. 116, terzo comma, della Costituzione: la natura delle funzioni e i vincoli costituzionali – 139
Vanessa Manzetti – Bilancio pubblico e equità intergenerazionale – 203
Giovanni Pesce – Sulla disponibilità della riserva aurea della Banca d’Italia – 223
Beatrice Rabai – C’era una volta il carattere libero ed indipendente del sapere accademico –163
Simone Franca – L’informativa trasparente nel trattamento dei dati personali da parte della pubblica amministrazione -185
Alberto Picón Arranz – Observaciones relativas a la teoría de la invalidez de los acros administrativos en España e Italia –249
Cristiano Bevilacqua – Il waste management tra normativa dell’Unione europea ed italiana. La (termo)valorizzazione nella gerarchia dei sistemi di gestione dei rifiuti – 271

Abstract
Conscious participation and due planning process
by Patrizia Marzaro

Zoning and urban planning are ideal frameworks for experimenting and applying the principles and techniques of democratic participation. In this respect, zoning and urban planning can serve as remedies for the broadening crisis of representative democracy and the democratic deficit of administrative decisions. Regional legislations on land-use planning confirm the importance of participatory democracy. The most advanced pieces of legislation in the field resonate with the constitutional imperative to foster participation and with the principle of administrative due process, as recently explored also by the Italian Constitutional Court.

The administrative functions relating to hunting
by Fabrizio Fracchia e Pasquale Pantalone

The article aims at analyzing the peculiar administrative functions relating to hunting, taking into account, on one hand, the complex distribution of these functions between State and regions and, on the other hand, their strict connection with the subject matter of the protection of both the environment and the ecosystem.

Participation and Land-use planning: the Tuscan Experience
by Clemente Pio Santacroce

The paper offers a reading of the current Tuscan legislation on participation (also civic) in the formationof the territorial and urban planning tools, after explaining the reasons that led to identify the legislative experience of the Tuscany Region as a specific and privileged subject of study and analysis. The work focuses on the particular genesis of the principle of participation in the Tuscan regional law no. 65/2014, to then come to deal with those procedural and organizational tools put in place by the Tuscan legislator in order to favor the affirmation of a general principle of participatory land-use planning.

Urban sustainability: guidelines to determine a territorial balance in order to foster productive activities. A glance at Matera European Capital of Culture.
by Giovanna Iacovone

The present study starts its considerations from the relationship between tourism economy and business. As it is well known that the productive sectors are able to trigger relevant synergies within the territory offers, the present work raises the question of the possible transformations, of urban territories, thanks to a sustainable logic that these connections are able to motivate. In this direction, through the examination of the existing regulatory system and its technical instruments, it is enhanced the key role of the dialogue between the centre and the peripheries that involves the economic and urbanistic spheres. It is also meant to catch the sectoralities and contradictions that do not always seem to go in the designated direction. In this perspective, the city of Matera is worthy of consideration, since as the European Capital of Culture during the year 2019 had coped with important needs for change that have been set in motion by the increase in tourist flows and commercial activities that has affected the city.

The contribution of public access to environmental information on safeguard of the public heritage.
by Giovanna Pizzanelli

This article analyzes the key role of public access to information in modern environmental governance. Guaranteed by the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, by Directive 2003/4/EC and by legislative-decree n. 195/2005, the right of Access to environmental information has a substantial impact on how individuals can act as environmental stewards and public bodies can protect the environment. In particular, information disclosure provisions can help to minimize the information asymmetry between the State and its citizens. In doing so, individuals are empowered in their role as environmental stewards, able to effectively participate in environmental decision-making procedures and to exert “bottom-up” pressure on the State and private entities in their role as consumers and investors. However, the historical evolution of the right to access environmental information today is confronted with the reform of italian legislation on transparency. Therefore, a reflection is needed on the interaction between the special forms of access coexisting in the italian legal system, with specific reference to environmental information, and the generalized civic access introduced by the legislative-decree n. 97/2016 (so-called Italian Freedom of Information Act). In conclusion the essay focuses on the fact that right to access information, as it belongs to the corpus of human rights, is a precondition for a good environmental administration.

Urban land regularization and immediate application of law 13.465/17 in the Federal District of Brazil.
by Pablo Cunha Malheiros, Ilton Norberto Robl Filho

Law no. 13.465 of 2017, approved by the Brazilian National Congress, regulates urban land regularization, concretizing the fundamental right to housing, the promotion of the good of all and the urban policy established in the Brazilian Federal Constitution of 1988. This article defends the immediate applicability of this law to subnational entities (States, Federal District and Municipalities), due to the model of cooperative federalism adopted by the Federal Constitution of 1988 and the proper interpretati on of its article 24, emphasizing the incidence of this law in the Federal District. The methodology employedfavors the use of specialized legal literature and the jurisprudence of the Supreme Court, which is the arbitrator for excellence of disputes and conflicts between federative entities.

Piersanti Mattarella, the administrative reforms and southernism
by Gaetano Armao

The article reconstructs, forty years after the killing, the figure of Piersanti Mattarella, leading the regional budget from 1971 until 1978 and then President of the Sicilian Region until the tragic epilogue of the political-administrative experience. In particular, the reforms introduced in the Sicilian regional system starting from the accounting ones, to those of the administration and regional planning are examined.

The regional differentiation process on the basis of art. 116, third paragraph, of the Constitution: the nature of the functions and the constitutional constraints
by Rossana Caridà

The article analyzes the consequences, on an administrative level, which could arise if the process of implementing differentiated regionalism was completed. In order to guarantee the principle of continuity of administrative action, at the service of the provision of social benefits, as well as the principle of solidarity and social cohesion, the differentiation process needs to be well structured especially at the administrative level and that the distribution of competences and functions between the central power and the “differentiated” regions is clarified. In fact, unjustified disparities in the territory should be avoided which could endanger the principle of economic and social unity.

Public budget and intergenerational equity
by Vanessa Manzetti

The theme of the relationship between public budget and intergenerational equity inevitably involves a multiplicity of economic, sociological and legal profiles, which find in the theme of duties towards future generations, rather than rights of future generations, an extremely interesting aspect. However, the complexity and interdisciplinary nature of the subject makes it necessary to circumscribe the boundaries of research, analyzing whether and how the principles and rules governing the so-called budget law are also an expression of the principle of intergenerational equity. In order to do this, in the present work, it was deemed necessary to proceed following three different investigation plans (one consequential to the other): that of verifying if it is possible to trace in the constitution a principle of intergenerational equity from an economic-financial point of view; that of verifying if and how the constitutional jurisprudence supports the emergence of such principle; that, finally, of verifying how the accounting normative instrumentation prepared by the legislator allows to make the principle of intergenerational equity effective, guaranteeing it.

The ownership of the Italian gold reserves
by Giovanni Pesce

Moving from an analysis of the recent bills which provide that the Italian gold reserves shall be deemed to be owned by the State, the Article discusses the legal issues concerning the ownership of the Italian gold reserves. After reviewing, also in historical terms, the main elements which lead to identify the Bank of Italy as the legal entity which holds the reserves and manages them in order to guarantee monetary stability, the Article starts with a reflection on the meaning of “public goods”, and suggests to frame legal issues concerning the ownership of the gold reserves within the concept of the public goods. The Article emphasizes the value of the autonomy of the Bank of Italy and its independence in relations with the Treasury, and argues in favour of a dialogue on an equal footing between the independent Bank and the political realm. The Author further argues that that the general interest underlying the management of the gold reserves cannot but be coincident with that of the State. This means that both the State and the Bank of Italy have the task to pursue the general interest of monetary stability, and, in order to comply with the current framework of the European Treaties, shall make available the gold reserve to the European Central Bank

Once upon a time the free and independent nature of academic knowledge
by Beatrice Rabai

This paper aims to outline the profound changes taking place in the Italian university system, in order to verify whether (also making use of the results of sociology and economic studies in terms of extrinsic and intrinsic motivation of the individual) the evaluation model of teaching and scientific research is functional to mantain particular professionalism of university teachers to which art. 33 of the Constitution entrusts the development and transmission of knowledge in a pluralistic society.

Transparent information in personal data processing by the public administration
by Simone Franca

The present article deals with a particular aspect linked to the compliance with the GDPR from the perspective of the public administration, i.e. the information to be provided in relation to any processing of personal data. The article is divided into three parts. The first part attempts to reconstruct the evolution that has led from fairness to transparency as a guiding principle in the processing of personal data. In the second part, the constituent elements of the concept of transparency are identified in the light of a broader reflection, taking into account the concept of transparency in administrative, banking and EU law. In the third part, the information obligations enshrined in the GDPR are examined in depth, taking into account both certain specific processing operations carried out by public administrations (such as the processing of personal data in the context of scientific research) and the profiles inherent to the justiciability of these obligations. The analysis shows how the new elements contained in the GDPR can lead to the design of compliance with information obligations as part of a collaborative relationship between citizens and public administration

Observations concerning the theory of invalidity of administrative acts in Spain and Italy
by Alberto Picón Arranz

The theory of the invalidity of administrative acts is one of the subjects that generates most debate among the specialized doctrine. Throughout this article we will try, analyzing the Spanish and Italian doctrine, to defend a theory of invalidity that starts from the absolute separation between validity and efficacy. We will analyze the term “non existence” by considering its real meaning at present and, we will end with an analysis of the two invalidating categories contemplated by the Spanish and Italian legislators: nullity and annulability.

Waste management between European and Italian legislation. The “(thermo)valorization” in the hierarchy of waste management systems
by Cristiano Bevilacqua

The article deals with the issue of waste management, which is going through a delicate phase in Italy, especially with regard to the location of incinerators, also due to the presence of a regulatory framework for waste management which is too complex and contradictory. Even the recent European jurisprudence pronounced on the “Sblocca Italia Decree”, which favors waste incineration / co-incineration systems, contributes to increasing uncertainties since on the one hand it supports an elastic conception of the principle of waste hierarchy, seen as a principle discretionally adaptable to the needs of Member states ; on the other hand, it reiterates the preventive nature of environmental assessments and the need for incineration planning to undergo a strategic environmental assessment in relation to the significant effects that may affect the environment. It is therefore necessary to proceed to a new rationalization of the national system by effectively recovering the general principles of European matrix set to protect the environment, compared to the sectoral ones introduced by state legislation, with a view to the circular economy recalled by the recent “European circular economy Package” asking Member States to take measures to avoid waste production by encouraging the creation of systems that promote waste reuse activities and discouraging the use of their incineration

L'articolo Nuove Autonomie 1-2020 proviene da Nuove Autonomie.

INDICE
DOTTRINA

Giuseppe Martinico – “Scelte sovrane”. Alcune riflessioni problematiche sulla sentenza Wightman – 5
Costanza Margiotta – (Dis)ordine sovrano: Brexit e la sentenza Wightman – 19
Matteo Monti – Il federalismo belga in tempi di transizione e la Carta per le Fiandre: verso – nuove forme di asimmetria? – 33
Angela Costaldello, João Pedro Ruppert Krubniki – Gestão pública e direito administrativo: um necessário diálogo em prol do planejamento – 49
Susanna Quadri – Profili internazionali della lotta alla corruzione, con particolare riferimento al settore dei servizi: il ruolo determinante del Soft Law – 75
Fabrizio Fracchia, Pasquale Pantalone – Nomofilachia, uniforme applicazione del diritto e funzioni della Corte conti – 95
Antonio Ignazio Arena – La tutela dell’ambiente nella Costituzione italiana – 113

Abstract
“Sovereign Choices”. Some Critical Remarks on the Wightman Judgment of the Court of Justice
by Giuseppe Martinico

On 10 December 2018 the CJEU delivered the Wightman judgment where, among other things, it recognized the revocability of the notification ex Art. 50 TEU, confirming, this way, more or less what Advocate General Campos Sánchez-Bordona had suggested in his Opinion. This piece is divided into two parts. In the first part of the article I shall comment upon the idea of legal integration presented by the CJEU in this judgment and in so doing I shall represent the EU as a complex legal system. In the second part of the article, I shall offer a critical view of the legal reasoning of the Court.

Sovereign (dis)order: Brexit and the Wightman ruling
by Costanza Margiotta

This article offers a reading of the recent Wightman case ruling of the Court of Justice of the European Union on the revocation of a notification of an intention to withdraw from the EU under Article 50 TEU. The relevant aspects of this opinion show the ambiguity of the European Court on Brexit: on the one hand, the consecration of the sovereignty of the Member State, and on the other, the statement of EU as an ever closer Union. Both principles have, in the opinion of the author, the same aim: the safeguard of European Union. The Court with Wightman gives the first interpretation of art. 50 TEU on withdraw and, giving a constitutional interpretation of European Law, offers the opportunity to look again at the relation between secession and constitutional law. Giving to UK the right of revocation of the will of exit from EU, the Court offers also the opportunity to analyse the relation between secession and democracy and between
democracy and majoritarianism.

The Belgian Federalism in Times of Transition and the Charter for Flanders: Toward New Forms of Asymmetry?
by Matteo Monti

The aim of this paper is to analyse the new forms of asymmetry which theenacting of the Charter For Flanders in the Belgian scenario could lead to. The Belgian federalism is already considered as one of the most asymmetric federalism in the world. The Charter for Flanders could be the herald of two new forms of asymmetry: the asymmetry in ubnational constitutions and the asymmetry in fundamental rights. The paper shall analyse these types of asymmetry in federal systems and in the Belgian scenario in particular and then consider the problem sand the possible evolution of the Charter for Flanders. In doing so, Section II shall study the asymmetry in subnational constitutions, while Section III shall focus on the asymmetry in fundamental rights. Finally, Section IV shall explore the possible evolution of the harter for Flanders and its possible impact on theBelgian federalism, taking into consideration the political space of action for itsenacting and the consequences this could cause. From this point of view, it has tobe remembered that even though the Charter of Flanders currently cannot beconsidered as a fully fledged constitution – given the lack of power of the subnational units – it could represent the next step of the evolution of the Belgian federalism.

Public management and administrative law: a necessary dialogue for planning
by Angela Cassia Costaldello e João Pedro Ruppert Krubniki

The present article aims to analyze the historical formation of the administrative management models set in Brazil and to acknowledge the legal principles of the current managerial model, in order to elaborate contributions on its suitability to the contemporary Public Administration, instigating the formulation of instruments that allow this suitability, especially the planning. It is put at stake the suitability of the current managerial model to the Public Administration, throughout the analysis of political influences that undermine the public management models in the country’s history. Assuming that the correct exercise of the administrative function is linked to the faithful execution of its legal precepts, the bureaucratic maturation of management models is sough in order to dispel it from political and electoral interests. Thus, the current scenario of the country, where the institutional solidity is being questioned, poses a great importance to contextualize the present article, given that Brazil has been experiencing successive discontinuity of governmental programs, demonstrating the political liabilities to which the Public Administration is subordinated.

International profiles of the fight against corruption, with particular reference to the service sector: the determining role of Soft Law
by Susanna Quadri

Since the 70s of the last century, the globalization of organized crime caused by the opening of the markets has boosted the phenomenon of international corruption. Its diffusion in the developing countries hinders the free competition of Western companies and inhibits economic progress and the democratization of the aforementioned countries. This applies above all to services (in particular energy, as evidenced by various proceedings in progress) and, in general, to the procurement and public contracting sectors. These circumstances have pushed the international community to the adoption of enforcement tools against corruption at the international level, previously exclusively of domestic law. After briefly reviewing the international legal instruments to fight international corruption, the paper will focus on the objectives of the same, mainly oriented to restore the trust between companies and institutions, including through the Soft Law instrument.

Nomofilachia, Uniform Application of Law and Functions of the Court of Auditors
by Fabrizio Fracchia e Pasquale Pantalone

The essay deals with the uniform interpretation of national legislation given to the Court of Auditors and it shows the specificities of this within this jurisdictional complex. It seems particularly relevant the specific characteristic that it involves not only the exercise of the jurisdictional function, but also the control and consultive functions performed by such a special judge.

The Envirnomental Protection in the Italian Constitution
by Antonio Ignazio Arena

This essay concerns the environmental protection in the Italian Constitution. Still today environmental problems are often neglected at the institutional level and the awareness of the link between democracy and “protection of nature” is not full. The main environmental problems have a global dimension, but this can not mean the absence of individual states’ responsibility. The environmental policies and the principle of substantive equality are strictly connected: the greater the inequality, the lower the protection of the environment

L'articolo Nuove Autonomie 1-2019 proviene da Nuove Autonomie.

INDICE

Indirizzi di saluto
Maria Immordino, Presidente del Polo Universitario della Provincia di Agrigento – 177

Mons. Francesco Montenegro , Arcivescovo di Agrigento – 181

Antonio Scaglione, Preside della Facoltà di Giurisprudenza dell’Università degli studi di Palermo – 183

Dottrina

Antonio Carlos Wolkmer – La etica intercultural como fundamento del derecho humano a migrar – 189

Maria Immordino – La salute degli immigrati irregolari tra “certezza” del diritto e “incertezza” della sua effettività – 197

Alberto Zito – Beni primari, diritti sociali degli immigrati e ruolo delle pubbliche amministrazioni – 223

Fabrizio Fracchia – Integrazione, eguaglianza, solidarietà – 229

Estefânia Maria de Queiroz Barboza – La protezione normativa dei rifugiati in America Latina ed in Brasile – 241

Giovanni Francesco Tuzzolino – Lampedusa. Architetture per l’accoglienza – 261

Ornella Spataro – I diritti degli immigrati nella giurisprudenza della Corte Costituzionale – 269

Cristiano Celone – La “detenzione amministrativa” degli stranieri irregolari nell’ordinamento italiano e dell’Unione europea ed il diritto fondamentale di ogni persona alla libertà ed alla tutela giurisdizionale – 299

Roberta Teresa Di Rosa – La tutela dei minori stranieri alla prova delle politiche migratorie – 335

Licia Siracusa – Il diritto penale dell’immigrato: brevi spunti per una riflessione sul diritto penale della paura – 365

Elisa Cavasino – Le trasformazioni del diritto d’asilo – 385

Alessandro Riccobono – Immigrazione e lavoro al tempo della crisi. Aspetti problematici e prospettive di riforma del quadro normativo – 401

Alessandra Sciurba – Le violazioni dei diritti umani nel mercato del lavoro di cura prestato dalle donne migranti – 431

Giuseppe Puma – Convenzione europea dei diritti dell’uomo e non-refoulment in mare – 451

Rosario Papania – La tutela giurisdizionale degli stranieri tra sistema dualistico, giurisdizione “piena” del giudice ordinario e tendenze migratorie dalla giurisdizione amministrativa – 475

Laura Verduci – La condizione esistenziale del migrante e la privazione della libertà personale – 505

Vincenzo Cerulli Irelli – Politica dell’immigrazione e tutela dei migranti (una disciplina positiva in corso di evoluzione) – 519

Abstract

Intercultural ethics as THE FOUNDATION OF THE HUMAN RIGHT TO MIGRATE
by Antonio Carlos Wolkmer

The paper proposes to reflect on a redefinition of the Human Rights concept from a decolonized and intercultural perspective. This re-conceptualization should entail a new methodological rearrangement and an epistemological renovation of their content. It also suggests that, in order to meet the expectations and demands of new subaltern subjects and collective migration movements, the path of Human Rights evolution should be revisited from a critical, emancipatory and contextualized viewpoint. If understood in terms of resistance struggles and social practices of minority groups, fundamental human rights should offer a new ethical foundation for the theoretical development of

the right to migrate. MIGRANTS’ HEALTH BETWEEN THE “CERTAINTY” OF LAW AND THE “UNCERTAINTY” OF ITS EFFECTIVENESS”
by Maria Immordino

The current economic crisis seriously affects the implementation of the migrants’ right to health. This paper focuses on the Italian case, and after a review of the relevant legislation and constitutional jurisprudence, it investigates the many problems related to the effective realization of such right.

CULTURAL BACKGROUN D OF THE IMMIGRANTS AND PROTECTION OF THE SOCIAL RIGHTS
by Alberto Zito

The issue analyzes the protection of the social rights of immigrants with particular regard to the right to health. It addresses the question whether public authorities have to ensure in practice the enjoyment of social rights in accordance with the cultural background of the immigrants. If there are no additional costs, the government should be required to make performance so as to respect the cultural background of the immigrants.

Integration, Equality, Solidarity
by Fabrizio Fracchia

The essay analyses the matter of the integration not only from the point of view – as usually done by scholars – of rights, but stressing the idea of solidarity and the dimension of the duties. Particular attention is given to the conditions that a legal system might require in order to integrate foreign people. After examining the insufficient perspective both of rights and of the principle of equality, established by art. 3 Const., the article suggests that the art. 2 Const. might be considered as the legal provision that can support a new paradigm in the integration process, emphasizing aspects such as the bilateral duties and the personal commitments. In this context the article also examines the link with the problem of the sustainable development and the needs of the future generation, once more based on the idea of duties and solidarity.

THE LEGAL SYSTEM TO PROTECT REFUGEES IN LATIN AMERICA AND BRAZIL
by Estefânia Maria de Queiroz Barboza

In the twentieth century, the international community, horrified by the direction of the war, noted the urgent need for the United Nation member countries to provide assistance to those who were being harassed in their territories. It was recognized that each applicant for asylum or refuge was the result of a pattern of violation of fundamental rights. All definitions of refugees provided in different international and national normative texts in different countries are not exclusive, however, are complementary, and their content are open. The international construction in this topic influenced directly the national regulatory updates of Brazil and other Latin American countries. Most Latin American countries, including Brazil, adopted provisions within the expanded definition of refugee that was set out in Conclusion third of the Cartagena Declaration of refugees. The main challenges to be faced by Latin American countries concerns the refugees and Internally Displaced People from Colombia because of violence and the Haitians who, because of the 2010 earthquake, need humanitarian protection from other countries.

Lampedusa. Architecture for hospitality
by Giovanni Francesco Tuzzolino

The experience, carried on in the architectonical design laboratories, in the faculty of Architecture in Palermo, has had the aim to qualify the teaching of the project with the introduction of important ethic and social contents. If, on the one hand, hospitality is one of the most important value for architecture, on the other hand, it asks us about questions related to human solidarity, to the pacific cohabitation among people and also about the framework of physical and social relations. Today is very useful to confirm the anthropological and social meaning of the project, its inescapable role to converge in form and space all living inquietudes. The way illustrated in these pages get a sense of how the forms of cohabitation among different ethnic groups are necessary and above all they are a resource. Indeed, new architectures not only satisfy the specific living requirements related to the cultural traditions of immigrants, but they also offer useful solutions to the unresolved spatial conditions of the city. Finally, the city is able to provide itself new centralities, places, functions and spaces which are necessary for now. In this way, the hospitality current necessities create the opportunity to offer quality to the urban space, across the theory of coherence and beauty

The rights of immigrants in the jurisprudence of the Constitutional Court
by Ornella Spataro

The issue of migrants’ rights can not be examined except in the light of constitutional law, since, in the absence of normative data with completeness, it should be just to the judgments of the court of law, in large part, the reconstruction of the constitutional status of the immigrant in our area. The identification of the rights to be granted to immigrants, still, is fraught with issues of major problematic, and passes through the rethinking of the fundamental categories of Republican constitutionalism, leading to a reflection that involves the doctrine of fundamental rights issues related to state sovereignty on its territory and the quality of citizenship as a conceptual figure that governs the political participation of the subjects. All this is further complicated when one considers the pluralism of sources within and outside of our legal system, are enabled to affect the subject. Against the backdrop of issues characterized by similar complexity, the script examines the guidelines drawn up by the Constitutional Court, according to a methodological criterion that, in an effort to simplify, distinguishes the issue of jus migrandi and immigration policy, the issue of civil liberties, social rights, political rights. For each of these strands are highlighted efforts made by the national laws towards the enhancement of inclusive tendencies in the Constitution, maximally evident at the level of civil liberties and social rights; whereas, on the contrary, in the area of political rights and immigration policy has so far emerged with more clarity the building conceptual recall that, in the traditional sense, is based on the theory of sovereignty which the State exercises on its territory and that links to formal citizenship, mainly jure sanguinis, the circuit of political participation.

ADMINISTRATIVE DETENTION OF IRREGULAR FOREIGNERS IN Italy AND IN THE EUROPEAN UNION AND THE FUNDAMENTAL HUMAN RIGHT TO PERSONAL FREEDOM AND PROPER DEFENSE
by Cristiano Celone

Foreigners are particularly subject to the restriction of personal freedom. A great number of countries resort to the detention of irregular migrants and asylum seekers by reason of the violation of immigration laws, including irregularly crossing the State border, using false document, non-possession of identification documents, staying after the permit of stay has expired, etc.. In Italy and in other member States of the European Union we can notice an ordinary use of administrative detention of foreigners (without authorization to entry or stay in EU countries) and of other measures of restriction of personal freedom also with respect to aylum seekers. The purpose of this article is to examine the italian and european legal framework of administrative detention of non EU citizens and stateless persons, to see if it comply with the fundamental principles of constitutional and international law and case-law on human rights, with regard, in particular, to the protection of personal freedom and proper defense.

The protection of foreign minors challenged by migration policies
by Roberta Teresa Di Rosa

The aim of the research and the studies was to analyse the space given to minor migrants and their families within the Child Welfare System, comparing it with the laws and services available for native minors and families. Using the analysis of the policy framework and the characteristics of the presence of foreigners in Italy as a starting point, it was possible to observe the characteristics of the service system provided and implemented for foreign minors and their families, as well as those of the principal agents involved in the reception process and the social instruments available for their integration. In addition, the historic analysis of the laws issued on this subject has shown how the level of protection established for the families and minors is inversely proportionate to the definition of the issue of immigration as a question of security and public order. The stereotypical depiction of immigrants, which is prevalently negative, also affects the efficacy of the services, reflecting on the performance of the operators. In the specific case of Italy, this study has revealed how here the presence of a consistent number of unaccompanied foreign minors has led to legal provisions and greater investment in the field of services being focussed specifically on these, while foreign
minors accompanied by their families the are provided with same services that exist for Italian minors and families, without any particular distinction (except to some extent with regard to schooling). Only recently have immigrant families begun to be subject to legal provisions, even though this space, which is provided for in social policy, has yet to materialise in practice. In any case, whatever the rights and services established by law, it has become evident that the perception of cultural difference influences the relationship of the immigrants with the service system. Indeed, it must be underlined that the difference in aid offered is based more on the perception of diversity than on the norms. Hence the need to invest more on training and all-life-long courses for the operators to promote the full application of the laws and a more effective recognition of the rights of immigrant minors and families.

The Immigration Criminal Law: brief remarks on the Criminal Law of Fear
by Licia Siracusa

Immigration Criminal Law should be more appropriately called “Criminal Law of the Irregular Immigrant”, since it shows to essentially be based on the criminalization of mere subjective “status”, rather than offensive managements of legal goods. Indeed, behind the protective shelter of an apparent balance between the need to legally protect human rights and the interest in controlling the migratory flow, the system of incriminations in this sector seems to be deeply imbalanced towards the punishment of types of perpetrators who are socially dangerous. It is namely a matter of model of criminal law very similar to the well known standard of “ Criminal Law of the Enemy”. The inspiring “ratio” of the discipline hasn’t even changed following its adjustment due to the obligation forced by the 2008/115/CE European legislation, decided with Law n.129 of August 2nd 2011. As a matter of fact this didn’t determine a total improvement of the system in a form of compliance to the fundamental principles of legal law, but on the contrary it expanded the ancillary function of criminal law towards the legal action of repatriation, without, on the other hand, removing the irrational aspects of the repressive decisions made by the Italian legislator.

The Transformations of the Right to Asylum
by Elisa Cavasino

Asylum is changing shape. It was a sovereign privilege of the State. After II World War, when Western Europe
had built a new constitutional architecture to fundamental rights of the person, Asylum has become a Constitutional right. Nowadays, territorial Asylum is losing ground. This is due to the interpretation and the application of other Aliens protection regimes drafted in International Treaties and EU Law. The transformations of Asylum is due to precise political, legislative and jurisprudential choices, wich led to the limitation of National Sovereignty. These choices have determined that National Sovereignty has been limited: the Constitutional Right of Asylum is no more receiving autonomous application. It is not clear if this transformation is due to the changing position of the National Constitutional Law towards protection of the Fundamental Rights of the Person, but the legal framework wich resulted from it cannot guarantee equivalent or more effective protection to the Fundamental Rights of Aliens.

Immigration and work at the time of crisis. Current problems and possible reforms of the regulatory framework
by Alessandro Riccobono

The essay analyzes the phenomenon of migration in his role as a structural component of the Italian labor market. Despite the negative effects of the crisis, the contribution of foreign labor has to be considered as a valuable resource to restart the competitiveness of enterprises and to develop the productivity of the economic system. Through an analysis of the regulatory framework currently in force – also in the light of the most recent legislative changes – the Author highlights some of the main critical issues of the discipline about immigrant labor and reports the possible paths of reform to be included in the political agenda of the new government.

THE VIOLATION OF HUMAN RIGHTS IN THE MIGRANT DOMESTIC WORK CARE MARKET
by Alessandra Sciurba

Domestic and care work of migrants women has by now become the subject of extensive international but also Italian studies. Taking for granted some well-established assumptions from the literature, we can thus try to examine the way in which this phenomenon, so relevant in contemporary societies, structurally involves a violation of some of the fundamental rights of these workers and their families. Before entering into the detail of this topic, we will make explicit some general premises that define the outlines of the phenomena of migration and labor market in globalization, within which the domestic and care work provided at a fee by migrant women in Italy have to be read and interpreted. Starting from the analysis of their condition, this paper aims to investigate, within the migrant domestic work and care market, the violation of the right to family unity and that of the child to receive care from their parents in the case of the minors “left behind”, offering a complex perspective with respect both to the quality of the content of these rights and to the level of their violation as a result of the migration of care workers, and with respect to the responsibility for this violation. Finally, taking into account the “care” as a social imperative, fundamentally connected to the human condition, we will examine the possibility to rethink a right to care articulated with respect to the content (either to give and to receive care), and universal and unconditional with respect to its access, reasoning here about its violation in relation with the structural characteristics of the migrant domestic work and care market.

EUROPEAN CONVENTION ON HUMAN RIGHTS AND NON-REFOULEMENT AT SEA
by Giuseppe Puma

This work analyzes the praxis of the push-back operations carried out by the Italian government in order to face the arrival to its coasts of thousands of migrants. The aim of this contribution is to assess the consistency of these operations with the rules laid down in the European Convention on Human Rights. The preliminary question to be solved is to determine whether the Convention is applicable to the push back operations carried out in the high seas, given that, under article 1 of the ECHR, States are obliged to respect the rights set forth in the Convention to all individuals within their jurisdiction. The analysis then focuses on two substantial rules of the ECHR: the first one is that of article 3, which prohibits torture or inhuman or degrading treatment. The European Court have emphasized the fundamental nature of Article 3 in holding that the prohibition is made in absolute terms irrespective of a victim’s conduct. The Court has also held that States cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient State. On the basis of this provision, we can argue that the ECHR system provides a non-refoulement principle whose scope of application is broader than that contained in the 1951 Geneva Convention on the status of refugees. The other substantial rule that could be applied to the individuals pushed back at the high seas is that contained in article 4 of the Fourth Protocol additional to the ECHR, which states that collective expulsion of aliens in prohibited.

THE JUDICIAL PROTECTION OF FOREIGNERS BETWEEN DUALISTIC SYSTEM, JURISDICTION “FULL” OF THE ORDINARY COURTS AND MIGRATION TRENDS BY THE ADMINISTRATIVE COURT
by Rosario Papania

Different solutions to the issue of the judicial protection of the migrants could be found in the d.lgs. n. 286/1998.
The fact that the migrant is the holder of subjective rights and legitimate interests involves, on the side of the case, the distribution of disputes between ordinary courts and administrative courts, with all the problems that this distribution involves, especially when related acts are given to different judges. The author pauses to describe the powers that the ordinary courts in the context of the so-called full jurisdiction within which fall a large number of cases relating to the
protection of fundamental rights of the human person, it is also analyzed the role that performs the administrative judge in immigration, both from the procedural point of view, both in terms of the case. Finally, it seeks to enhance the contribution that an administrative court can give to the defense of the inviolable rights of foreigners.

THE EXISTENTIAL CONDITION OF MIGRANTS RELATED TO HUMAN RIGHTS
by Laura Verduci

The analytical path that led us through the categories of money, freedom and identity let the immigrant’s existential condition emerge as a unitary condition, though it is structured on many levels. The choice of these three constitutive points doesn’t claim itself to be exhaustive but stands as an approach to this particular otherness’ expression. As already seen, money is not to be interpreted as a mere tool but, considered in a wider existential frame, it becomes an expectations’ symbol; freedom shows its vulnerability; identity, once its uniqueness is lost, gets a bureaucratic and instrumental value. Considering this analysis, the rights’ issues take on a wider connotation. The matter isn’t just to outline an immigrants’ rights specific field from a juridical point of view or, from a sociological one, to give an account of the infringements of their rights. The immigrants’ existential condition is rather an advantaged point of view in order to let a particular social dynamics emerge, where human rights turn out as indivisible and non-negotiable.

IMMIGRATION POLICY AND THE PROTECTION OF MIGRANTS (an evolving discipline)
by Vincenzo Cerulli Irelli

The article outlines the most outstanding features of the legislation on immigration and its problematic profiles, taking into account the reports presented at the Conference on “Immigration law and rights of migrants”. It focuses primarily on immigration policy, traditionally regarded as a corollary of State sovereignty, illustrating the powers of the European Union in the matter of asylum, immigration and control of external borders, the common rules and procedures to entry or stay in EU member States and to repatriate irregular citizens of third countries. Then it outlines the “status” of non EU immigrant in the domestic context, with particular regard to the rights of freedom and to the social rights that must be recognized to him, regardless of the regularity of his stay on the national territory, in the light of the constitutional and legislative framework and in the light of the jurisprudence of the Italian Constitutional Court. Finally, it deals with the national and European legislation on asylum, on entry or stay, on expulsion of migrants, highlighting the most controversial aspects of this legislation with particular regard to the judicial protection and to the allocation of the jurisdiction.

L'articolo Nuove Autonomie 2-3 2013 proviene da Nuove Autonomie.