Jura Gentium Journal of Philosophy of Law and international policy Global Jura Gentium / Home / News / Migrants /
IV (2008), 1
The detention of foreigners in European prisons (*)
Lucia Re
1. The overrepresentation of migrants in European prisons
With the speech, I propose to draw attention to a phenomenon only partially known and often misunderstood by the public because of recurrent alarmist campaigns on crime foreigners. It is the strong presence of foreign detainees in the prisons of the main European Union countries, particularly the west and south. With some hints, I'll leave aside the situation of Eastern European countries recently joined the European rather unusual characteristics with respect to migration, criminal law and prison and jail conditions. Suffice it to say that Poland has a rate of imprisonment of 235 prisoners per 100,000 inhabitants, which is more than double the EU average rate, and presence of foreigners in prison, a minimum of 0.7% of the prison population (1).
The high percentage of foreign prisoners is instead a major feature of prison systems in Western Europe and the Mediterranean. Foreigners are over-represented (ie, out of proportion to the number of foreign residents) in prisons of the main European countries. The average percentage of foreign inmates in prisons in these countries it exceeds 30% of the prison population, while the foreign presence in the territory is around 7% of the population (this is also given according to the latest Italian Migration dell'Ismu , just published).
The percentage of the prison population of foreign nationality is below the European average in some of the oldest European immigration, for example in the UK, but in the prisons of these countries there is a high percentage of citizens, children of immigrant parents . European prison administrations - with the exception of Britain - do not distinguish this category of prisoners from that of nationals of origin 'native', and the understandable concern that such a distinction may have discriminatory effects. However, in doing so, while it is formally correct to citizens of foreign origin, the other is hidden a cause for concern: in many European countries a high proportion of prisoners of foreign nationality or origin. Not only that, but, especially in the countries of north-west, is the Islamic religion and not white (the profile 'racial' is more important than commonly thought).
Prisoners of foreign nationality are particularly numerous in countries where immigration is recent and countries bordering areas of migration, for example, with Eastern Europe. Think of Germany and especially Austria, where the foreign presence in prison is a European record and is equivalent to 45% (2), or Estonia - new EU member that borders the Russian Federation - where the percentage of foreign prisoners is equal to 36.4% (3).
In the countries of the Mediterranean, bringing together the two conditions above - recent immigration and geographic contiguity with the countries of emigration - the detention of migrants appears to even be a feature of the national penitentiary systems. In Greece, Italy, Malta and Spain and foreign prisoners are on average 35% of the total (4) and come mostly from countries of the southern and eastern shores of the Mediterranean. In Italy, almost half of foreign prisoners is a native of Africa (5). While approximately 32% of foreign prisoners come from the Balkans and East Europe (Romania, Albania and former Yugoslavia) (6). Overall, more than 70% of foreign prisoners in Italian prisons come from countries that are at the periphery of the European Union and the countries that are of direct emigration to Italy.
The over-representation of foreigners is even greater with regard to women and children. In Italy the foreign women are 42% (7) of the female prison population (given the impact the very presence of Romani women) and children Foreign inmates in penal institutions for juveniles were 54.5% of the total (8). In addition, the presence of foreign minors in prison are still rising, particularly in prisons of the center-north. The percentage of children who are present in the main penal institutions for minors in central-northern Italy (Milan, Bologna, Turin, Rome and Florence) is nearly 80% and now also in prison in the south (except Naples and Sicily) the presence of foreigners is greater than or equal to half of prisoners (9). All this against a gradual reduction of inputs in prison of the Italian children, for whom the use of imprisonment has become a last resort. For children, like adults, the main paesi di provenienza sono quelli 'prossimi' all'Italia (10).
La percentuale di stranieri detenuti è in aumento in tutti i paesi dell'Unione europea e non è proporzionata al corrispondente aumento, pur verificatosi, della popolazione straniera presente sul territorio. In Italia in un solo anno, il 2002, si è registrato un vero e proprio boom dell'incarcerazione degli stranieri: la percentuale di detenuti stranieri è passata da 29,5% al 31-5-01 a quasi il 32% al 30-6-02. Da allora è rimasta sostanzialmente stabile. Le date non sono forse insignificanti, poiché coincidono con il periodo di vigenza della legge attuale sull'immigrazione, la cosiddetta Bossi- Fini, che ha riformato il T.U. sull'immigrazione.
Ecco alcuni dati in altri paesi europei:
Tabella 1. Detenuti stranieri in alcuni paesi UE (percentuale su tot. pop. det.) (11) Austria 45,1% al 1-11-2005 - molto aumentata negli ultimi 3 anni (Ministero della giustizia austriaco)
Grecia 41,7% al 16-12-2004 (Ministero della giustizia greco)
Italia 32% al 30-09-2006 - in lieve aumento dall'inizio degli anni duemila. -1% con l'approvazione dell'indulto (Ministero della giustizia)
Paesi Bassi 31,7% al 1-7-2006 - in lieve diminuzione (National Agency of Correctional Institutions)
Spagna 29,7% al 21-4-2006 - +4,3% dal 2002 (Direzione generale dell'amministrazione penit. spagnola)
Germania 28,2% al 31-3-2004 - stable (German Ministry of Justice)
Sweden to 26.2% 10/01/2005 - increased by more than 1% per year (Swedish Ministry of Justice) - only definitive.
France to 21.1% 01/04/2005 - slightly down (Ministry of Justice French) Portugal
18.5% to 31-12-2005 - increased by 6% since 2002 (Portuguese Ministry of Justice)
Uk- England and Wales to 13.6% 31/10/2005 - +1.4% since 2004 (Home Office Prison Service)
Finland to 8.0% 04.01.2006 - stable in recent years (Finnish Ministry of Justice)
2. Discrimination and criminalization of foreigners
Behind these figures there are several factors which are intertwined.
In recent years a part of sociology, media and European public opinion has placed emphasis on deviance of foreigners. Data on the presence of migrants in European prisons have been interpreted by some as a true index of their level of delinquency (Marzio Barbagli, Immigration and crime in Italy, The Mill, Bologna1998). Other authors have instead considered them as a symptom of widespread discrimination, both linked to the precarious living conditions of migrants at the difficulties they encounter when they enter into relations with the European judicial systems. For these authors, the strong presence of immigrants in prison is primarily the result of a process of criminalization (in Italian Studies see: S. Palidda, deviance and crime among immigrants, Cariplo-ISMU, Milano1994; A. Dal Lago, Non-persons, Feltrinelli, Milano 1999; F. Quassolo, Immigration same crime: representations of common sense and practical operator of law, "Italian Review of Sociology, 1, 1999, pp. 43-76).
Data on crime, while highlighting some areas where foreigners are particularly active (such as drug dealing and prostitution), do not justify this over-representation of foreigners in prison. Report published by ISTAT in 2004 on Foreigners and the prison aspects of imprisonment (Rome 2004) shows ad esempio che fra il 1991 e il 1998 (anno di promulgazione del T.U. sull'immigrazione) gli stranieri in carcere sono aumentati molto più velocemente del numero di stranieri denunciati. Il ché per gli estensori del Rapporto è un chiaro segnale degli svantaggi che affliggono gli stranieri nell'iter processuale e nell'accesso alle misure alternative alla detenzione.
Difficile è poi negare che esiste un forte legame fra l'aumento degli stranieri detenuti e l'adozione di politiche restrittive in materia di immigrazione. Analogamente è evidente il collegamento fra carcerazione degli stranieri e difficoltà di inserimento e di vita nelle società di arrivo.
I paesi impegnati in un controllo quasi militare delle proprie coasts, such as Greece, Italy or Spain, are also those where the number of foreigners in prison is higher, while the presence of foreigners on the territory of the state remains below the average of the countries of northern Europe. The imprisonment in these countries has become a major tool of immigration control and prevention of 'illegal'. In particular, the prison system in Eastern Mediterranean has taken an important role as a means of limiting freedom of movement of migrants within the EU. In Italy, the inputs in prison for violation of provisions relating to the Consolidated immigration are growing: from 2004 to 2006 was passed inputs from 2469 so motivated to 11,116 (12), a real boom. It should be noted that these crimes only concerns foreign and is therefore one of the factors that contribute to the overrepresentation of foreigners in prison.
The so-called crimes of immigration are only one factor which is achieved through the criminalization of foreigners, the instrument detention appears to act in various ways to achieve control of immigration. Note that the data mentioned above refer only to criminal detention - to prison - and do not include foreigners detained in detention centers, detention facilities which are in effect. CPT and prisons constitute an integrated system of institutions imprisonment responsible for segregation of foreigners.
I will touch briefly on this point.
Prisons in Southern Europe looks more and more detention centers where migrants are detained to be deported. This is because the majority of foreign inmates in jail are undocumented or because they were at the time of imprisonment or because they become so once out of prison, unable to re-organize the life of a 'regular'. The expulsion, therefore, often follows the detention in prison when he is not directly used, as in Italian law, as additional or alternative means to incarceration (13). According to research conducted sporadic Dap by the major Italian prisons in 2004, 80% of foreign prisoners had not allowed to stay upon entry into prison (Istat, op. cit., p. 8).
The Italian case is not in contrast with the orientation spread to the rest of Europe. The configuration of the expulsion as an alternative to punishment for illegal immigrants is present in the laws of many European countries, so as to suggest that in the European Union is creating a "system of criminal immigrants," which differs from the "Criminal Justice and Citizens' and is integrated instead of a more general system of immigration control and enforcement.
In France, the debate on "double jeopardy" - imprisonment and expulsion - which affects foreigners was very heated in the second half of the nineties. The term "double jeopardy" refers to both the administrative expulsion of foreigners who end up serving a criminal conviction, deportation is decided in court - "interdiction du territoire français" - in conjunction with a criminal conviction.
across Europe is emerging a new concept of detention as a means of incapacitation for which the objective is not to replace the condemned, but expel them from society. If the expulsion of migrants is a more effective and less expensive than imprisonment. At the same time, the imprisonment and detention in temporary holding centers tend to resemble one another: the first loses trattamentale character, while the latter acquires the distinguishing characteristics of a sentence imposed outside of sufficient procedural safeguards and inhumane conditions that are often taken for granted in (14).
The restrictive immigration laws, therefore, play a very important role in the criminalization of migrants. In some cases, they directly promote their entry into prison, in others they are crucial in making the precarious living conditions of foreigners causing them to find employment in the informal markets and illegal ones. Generally, restrictive immigration policies combine both aspects. Besides these, other aspects of society Destination encourage the involvement of migrants in criminal activities. Research conducted by Louis Marie Solivetti in 2004 (15), comparing the data on the detention of migrants and some data on the target company in 18 Western European countries, for example, has shown a positive correlation between the index and incidence of incarceration of foreigners economy. Instead there is a negative correlation with some variables such as per capita total expenditure on social protection, the proportion of people graduated, legal certainty (measured by the WB). Finally, the incarceration rate is much higher as a high index of hiding.
European countries Mediterranean, which have the highest percentage of foreign prisoners, are characterized by a relatively minor economic well-being compared to the countries of north-west, from economic instability, a more unequal distribution of income from low cultural level and by rapid growth of the foreign population of non-European origin. The higher the spread of the underground economy of illegal behavior, corruption, etc.. in the host society, the higher the number of foreigners in prison.
latter thus reflects in part the deviance and non-citizens, but it does not seem to be defined as "crime of immigrants." As argued Dario Melossi: the roots of deviance are always internal to the society in which the deviance occurs (D. Melossi, state, social control, deviance, Mondadori, Milano 2002, p. 283). In the Italian case, for example, "the two activities central to the forms of deviance which are very serious players immigrants - the drug market and that of street prostitution - (...) activities are designed to meet all the needs that existed before ' Immigration and still are broadly defined as Italians (...) From this point of view, the criminals 'Tunisia', 'Moroccan', 'Albanian' and how many others are not such, but they are criminals in every respect 'Italian' ( ...) " (D. Melossi, 2002, 283). I mercati illegali che soddisfano i bisogni di trasgressione e di svago dei cittadini europei necessitano di manodopera al pari degli altri mercati: essi creano quindi occasioni di emigrazione, che sono spesso più facili da cogliere e più fruttuose delle occasioni legali.
A questi fattori si devono aggiungere i diversi meccanismi di discriminazione razziale e/o etnica che sono presenti a tutti i livelli del sistema penale: dalle pratiche di polizia alla fase d'esecuzione della pena, passando per il processo. Queste discriminazioni sono solo in parte consapevoli: spesso derivano da scelte tecniche finalizzate a rendere efficiente in termini di risultati quantitativi l'operato delle forze di polizia o dipendono dalle characteristics of a penal system and prison designed for citizens, that does not fit the legal and social status of migrants,
Migrants are often subject to discriminatory control activities: European police resort to practices of control and repression penalize them (16). Strategies to combat terrorism then tend to favor the practice of selective arrest and search of Muslim citizens and immigrants (17). In the aftermath of the terrorist attack in London, as well as the failed attempt last summer, in the main European Union countries discussed the desirability of promoting the controls on immigrants and has begun a series of police operations specifically directed towards Muslim communities, beyond the monitoring requirements imposed by the ongoing investigations.
Non-governmental organizations have repeatedly denounced the use of 'Ethnic Profiling' - ethnic lines for the orientation of the policing and for the filing of the statement - by the European police forces, especially after the ' September 11, 2001 (18). A police these policies plus the arbitrary discrimination that occur in cases where the police feel empowered to hold racist attitudes because public opinion demands a tough response to crime. Sociological studies (19) and journalistic investigations hanno messo in luce i comportamenti razzisti tenuti dalle forze di polizia e dai tribunali penali, comportamenti che emergono ad esempio anche dalla lettura dei rapporti sulla detenzione dei migranti nell'Europa del sud stilati dal Comitato del Consiglio d'Europa per la prevenzione della tortura.
L'impressione è, tuttavia, che a esporre i migranti alla repressione penale, più che i consapevoli atteggiamenti discriminatori e razzisti di alcuni attori del sistema penale, siano, da una parte, la "discriminazione strutturale" (20) dovuta alla condizione sociale degli stranieri, dall'altra, la scelta di una politica di controllo selettiva che sceglie di concentrarsi sui migranti. Sotto quest'ultimo aspetto è evidente come le politiche adopted since the early nineties in most European countries in immigration have led to an intensification of controls on foreigners: the national police forces have made regular operations aimed to show the commitment of law enforcement in contrast to 'illegal immigration. Foreigners, being subject to continuous controls, tend to accumulate complaints, indictments and convictions of becoming multiple offender.
Among the forms of structural discrimination is particularly serious one that derives from the inadequacy of many European legal systems to treat migrants as other citizens. The most illuminating example is that related to the use of non-grant foreign precautionary measures alternative to prison custody. This practice, along with the similar practice of not granting to the foreign prisoners on probation or other alternative sanctions to imprisonment, is a major cause of the large number of foreigners held in prisons in Europe. There is thus a need to implement structural reforms and European legal systems to provide the human and economic resources necessary to ensure it will work even against migrants, which appear before the courts and whose presence in prison can not most certainly be considered as an exceptional event (21).
----------------------------------------------- ---------------------------------
Notes
*. Paper presented at the Study Days on the rights of migrants, fourth year, the Faculty of Law, University of Ferrara, 14/03/2007.
1. Polish Ministry of Justice, updated in 30.11.2006. See International Centre for Prison Studies, World Prison Brief.
2. Details of the Austrian Ministry of Justice, to 1.11.2005. See International Centre for Prison Studies, World Prison Brief.
3. Data from the Ministry of Justice of Estonia, 31.10.2005. See ibid.
4. The data are as follows: 29.7% in Spain, in Italy 32%, 35% to 41.7% in Malta and Greece.
5. To 30.06.2006, the Moroccans were 20% of the foreign detainees, 9.7% of the Tunisians, Algerians, 6.3% and 10.4% were from other African countries. The pardon did not significantly change in these percentages, despite a slight decline of African prisoners rose from 48.3% to 43.8% of foreign prisoners. Ministry of Justice, data refer to 31.12.2006
6. Department of Prison, the prison population and resources of the prison administration, Ministry of Justice, Rome 2006.
7. My elaboration on data provided by the Ministry of Justice reporting the situation to 06/30/2002.
8. V. Belotti, "Double trouble", crime and criminalization, in V. Belotti, R. Maurizio, AC Moor, eds, Minor Foreigners in prison, Guerini e Associati, Milano 2006, p. 101. Revision Istat and the Ministry of Justice for 2004.
9. Ibid, p. 102.
10. Romania (31%), Morocco (24%), Serbia (16%) and Albania (9%). Ibid.
11. The majority of the above data is from International Centre for Prison Studies, World Prison Brief, cit.
12. Department of Prison, the prison population and resources of the prison, cit.
13. The Italian immigration law provides that every alien in prison for an offense under Article. 380, first and second paragraphs of the Code of Criminal Procedure and for any offense related to drugs or sexual freedom should be deported once his sentence. Article. 16 of the Consolidation Act on Immigration, as it has been amended by the 2002 measure, also involves the use of expulsion as an alternative measure to imprisonment. The surveillance judge should in fact proceed to the expulsion of all foreign detainees are illegal they are identifiable and are less than two years of imprisonment to be served. The Bossi-Fini law has since ruled that immigrants who have committed a crime for which the arrest is expected in the act can not obtain the renewal of residence permit and then go to the expulsion meeting. The expulsion becomes explicitly a penalty, setting up an ad hoc criminal regime for migrants. The law had finally provided the mandatory arrest of illegal alien who had not complied with the order to leave the country within five days or that had violated the obligation of re-entry. The arrest was designed to allow the immediate deportation. The Constitutional Court established the unconstitutionality of this provision. The special mechanism of sanctions was, however, restored by the Law 271, 2004, which transformed the violation of the order to leave the country in contravention of the crime, making it legitimate in the act required the arrest and allowing the alien to be the first arrested and then expelled. Deportation and imprisonment sono dunque state equiparate. In questo modo la funzione rieducativa della pena è definitivamente cancellata ed è esplicitamente istituito un sistema penale differenziato per gli stranieri.
14. Vedi la denuncia del giornalista Federico Gatti che, fingendosi migrante, è riuscito a entrare nel Centro di detenzione temporanea di Lampedusa (F. GATTI, Io clandestino a Lampedusa, "L'espresso", 40 (2005)). Gatti ha sostenuto che la sua presenza a Lampedusa, come quella di molti migranti entrati con lui nel Centro nella settimana fra il 24 e il 30 settembre 2005, non è mai stata convalidata dal giudice. Le condizioni igieniche del Centro sono secondo il giornalista gravissime. Inoltre, durante la sua reclusione, egli ha potuto assistere the racist attitudes of many police officers on duty in the Centre, to beatings and psychological forms of violence against detainees. The issue of detention centers deserve to be addressed in detail. Here we can only mention some of the most serious concern in these detention centers. For a discussion of the matter is key sociological, and philosophical and policy, see F. Rahola, Zone definitely temporary. Internment camps and human rights, Shadow Court, Verona 2003.
15. LM Solivetti, Immigration, Integration and Crime in Europe, Il Mulino, Bologna 2004.
16. Data on persons stopped and searched by the police (according to the technique of "stop and search ") in the United Kingdom in 2003-2004, reported by the Home Office, show that blacks were stopped six times more than whites and Asians twice as many whites.
17. In March 2005 the Minister of 'UK has explicitly recognized that domestic anti-terrorism measures are designed to hit mostly Muslims, since the threat stems from the Islamic world.
18. The subject is treated exhaustively in the dossier prepared by the Open Society Justice Initiative (AA.VV. , Ethnic Profiling by Police in Europe, Open Society Justice Initiative, London 2005). According to some analysts, the EU police force, Europol, with primary responsibility for prevention and suppression of crime organized by the assumption that crime is organized along ethnic lines. Public opinion supports the belief that these discriminatory practices are effective in countering terrorism and international crime.
19. See for example F. Quassolo, Immigration same crime: representations of common sense and practice of legal practitioners, "Italian Review of Sociology, 1 (1999).
20. The term refers to the sociology of Pierre Bourdieu, refers to discrimination resulting from poverty to economic capital, social and cultural life of the marginalized migrants pushing it. This term, however, I refer also to 'non-fitness' foreigners to relate to an apparatus which provides for criminal safeguards designed to citizens, ie subjects in the social fabric and well integrated with economic instruments, social and cultural migrants do not have.
21. To close with an optimistic note in any way (or idealistic, depending on your point of view) I would like to mention the proposed reform of the penitentiary is currently lying in parliament. This is a reform developed under the coordination of Alessandro Margara, former Director of DAP, a friend and collaborator Mario Gozzini, which will remove as much as possible the rules that discriminate against foreigners in the execution phase: the granting of permits to alternative measures, up to interviews and phone calls. If such a reform was passed, Italy would be a big step forward in the elimination of "structural discrimination" that contributes to the strong presence of foreigners in prison.
Jura Gentium, Journal of Philosophy of international law and global politics, ISSN 1826-8269 siamoQuaderni Chi JG FeltrinelliRubricheDiscussioni onlineRecensioniJournalsLinks-A-A A +
Web site in
0 comments:
Post a Comment