REPORTS SUBMITTED by STATES PARTIES Underarticle9 of the CONVENTION

CERD/C/ITA/15

page 1

COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION

REPORTS SUBMITTED BY STATES PARTIES underARTICLE9 OF THE CONVENTION

Fifteenth periodic reports of States parties due in 2005

Addendum

Italy[*][**]

[20 March 2006]

CONTENTS

ParagraphsPage

Introduction ...... 1 7 5

SECTION I

A.THE ITALIAN LEGISLATIVE FRAMEWORK ...... 8 303 7

1.Recent legislative provisions to combat racial
discrimination: Legislative Decree No. 215 of
9 July 2003 implementing Directive 2000/43/EC ...... 8 34 7

2.The legislative framework concerning immigration
and the status of foreign nationals ...... 35 120 10

(a)The regulations concerning the procedures for
the recognition of refugee status ...... 49 90 13

(b)“Detention” arrangements ...... 91 97 22

(c)The regulations for the rationalisation and
interconnection of communications between
government departments in matters concerning
immigration ...... 98 101 24

(d)The framework law on the right to asylum ...... 102 107 25

(e)From the National Asylum Plan to the Protection
System for Asylumseekers and Refugees 108 120 26

3.Discrimination on ethnic, linguistic and religious
grounds ...... 121 183 30

3.1Linguistic minorities ...... 121 137 30

3.2Religious communities ...... 138 168 34

(a)The legislation on religious freedom ...... 146 160 35

(b)Agreements with faiths other than Catholicism .. 161 170 38

3.3Roma populations in Italy ...... 171 183 41

4.Trafficking in human beings: system actions and
social protection programmes ...... 184 231 45

CONTENTS (continued)

ParagraphsPage

5.Foreign minors in Italy ...... 232 291 55

5.1The population of foreign minors ...... 232 239 55

5.2Foreign minors and their right to integration ...... 240 249 56

5.3The right to education ...... 250 265 59

5.4Foreign children temporarily admitted to Italy ...... 266 273 62

5.5Unaccompanied foreign children ...... 274 282 63

5.6Foreign minors in correctional facilities ...... 283 291 65

6.Family reunification...... 292 303 66

B.THE NEW INSTITUTIONAL BODIES TO COMBAT
DISCRIMINATION ...... 304 441 68

(a)National Office for Measures to Combat
Discrimination ...... 304 366 68

(b)The Register of associations working to combat
discrimination ...... 367 377 76

(c)The Committee against Discrimination and
AntiSemitism ...... 378 384 77

(d)The InterFaith Consultative Bodies ...... 385 389 79

(e)The International Task Force on the Shoah ...... 390 413 80

(f)The National Coordination Body (NCB) ...... 414 431 84

(g)The National Monitoring Centre on Sports Events ..... 432 441 88

SECTION II

1.Racial discrimination and employment ...... 442 496 91

(a)General considerations ...... 442 466 91

(b)Access to social services ...... 467 481 96

(c)The role of the social partners ...... 482 496 98

CONTENTS (continued)

ParagraphsPage

2.The education system ...... 497 523 101

(a)Religious freedom and the rights of minorities ... 497 504 101

(b)Equal access to education and equal treatment of
Italian and foreign pupils in schools ...... 505 523 103

3.The treatment of foreign nationals in prisons and
similar institutions ...... 523 574 107

(a)The provisions governing discrimination ...... 523 551 107

(b)The prison system ...... 552 574 113

4.Measures to safeguard health ...... 575 601 117

Introduction

1.The protection and promotion of rights be it civil and political, economic, social and cultural constitute one of the fundamental pillars of both domestic and foreign Italian policies. The Italian legal system aims at ensuring an effective framework of guarantees, to fully and extensively protect the fundamental rights of the individuals, providing them with a wide range of protection means which have, as their core, the principle of nondiscrimination set out at Article3 of the Italian Constitution: “All citizens possess an equal social status and are equal before the law, without distinction as to sex, race, language, religion, political opinions, and personal or social conditions”. This principle has been recognised by all the instruments of international law currently in force, such as the European Convention on Human Rights and Fundamental Freedoms, the United Nations Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, and the International Convention on the Elimination of all Forms of Racial Discrimination.

2.Furthermore, the principle of equal treatment is an established feature of constitutional law in Europe: the right to formal and substantive equality is a universal right that is widely represented in the acquiscommunautaire. Article13 of the Treaty of Amsterdam and now ArticlesI2 to I4, II81 to II83 and Title II (ArticlesIII123 to III129) of the European Constitution envisages that the Council of the European Union should decide unanimously, subject to consultation with the European Parliament, and adopt the appropriate provisions to combat all forms of discrimination within the Union, whether based on gender, race or ethnic origin, religion or personal beliefs, disability, age or sexual orientation. The commitment of the European institutions to combating discrimination is based on a recognition that discrimination based on race or ethic origin may undermine the achievement of a number of fundamental objectives of the EC Treaty/European Constitution, such as the raising of the standard of living and quality of life of European citizens, economic and social cohesion, and the attainment of a high level of employment and social protection. Following this approach, the intentions of the European legislators have been translated into an important provision: the European Council Directive2000/43/EC, which enshrines the principle of equality of treatment of all people, regardless of their race or ethnic origin.

3.On the basis of the guidance criteria contained in Article29 of Act No.39/2002 (the “Community Law”), the Italian Government acted promptly to transpose the Directive by adopting Legislative Decree No.215 of 9 July 2003 (Legislative Decree No.215/2003). With respect to the general tone of the Directive, in addition to transposing its content in accordance with the provisions of the enabling act, Legislative Decree No.215/2003 has an added value that strengthens its action at the national legislative level. This added value concerns different aspects: the affirmation of the principle of equal treatment of all persons in the public and private sectors, with respect to access to employment, occupation, guidance and vocational training, membership of workers’ or employers’ organisations, social protection, healthcare, social advantages, education and access to goods and services (Article3); the judicial protection consisting in the procedure which represents a particular form of streamlined, effective civil action against discrimination both for the evaluation of evidentiary arrangements, including the system of presumptive proof, the modalities of awarding compensation for damage and the aspect of active legitimation depending on individual and collective discrimination (Articles4
and 5); the institutional importance attributed in this area to the Department for Equal Opportunities in the Prime Minister’s Office, where an ad hoc office has been set up as a sortoffrontline post in the fight against discrimination (Article7).

4.Facing problems such as asylum or illegal immigration, the respect for the fundamental rights of men, women and children is the primary criterion guiding our action. The countering of illegal immigration is not in fact marked by mere repressive intentions. Instead, above all, it tries to avoid further suffering and violations against these people. Illegal immigration is a consequence of trafficking in human beings, trade of organs, exploitation of prostitution, illegal work developing into new forms of slavery. The Italian legislative framework and the government policies have established appropriate procedural rules governing the granting of applications for the recognition of refugee status, the validation of the expulsion of aliens taking on board the criticism raised by the Constitutional Court the status of foreign citizens who entry and stay legally in Italy by assuring them the respect of the principle of integration in the nationalsocial context, the recognition of their full right of access to housing, medical assistance and education, the possibility of implementing specific forms of civic participation, avoiding any discrimination based on nationality.

5.Furthermore, the Italian Constitution gives a great importance to the right of religious liberty for all and prohibits all forms of discrimination on the basis of religion (Article8 and Article19). These Constitutional clauses are generally respected; individuals can profess their religion (or no religion at all) without suffering any disadvantage in the enjoyment of their civil and political rights. The relation between the State and each religious Denomination is largely based on bilateral agreements, which grant some privileges in accordance to those guaranteed by the Constitution. The Constitution grants fundamental rights and, among them, “equal liberty” of expression for all religious denominations: freedom of assembly, freedom of organization of religious association, freedom of rites. In other words freedom of religious expression is limited only when a certain practice is deemed a threat to public order or decency.

6.These considerations refer to all the aspects concerning the right to freedom that, in our view, must prevail on the rationality or the rigidity of the procedures. The latter should be instrumental to the protection of freedom and not be considered separately. We have to see the “rationale” behind the Italian legislation on fundamental rights. When an Italian legal provision apparently seems to affect the basic individual needs or expectations, in reality we are facing a “modus procedendi” aimed at protecting fundamental rights, such as the right to life, safety, personal freedom and security. This is somehow a method of “damage containment”; by which a higher requirement is protected while other simply legitimate requirements of the individual are temporarily compressed. In our view, the basic rule, if any, which should guide modern democracies in the protection of rights is the effective implementation of the principle of nondiscrimination, one of the main pillars of our Constitutional code upon which the domestic legislative system is based, when referring to different categories of people, such as women, minorities and other vulnerable groups.

7.It is worth mentioning that during the drafting process of this Report, the Interministerial Committee of Human Rights has planned and put in practice a positive dialogue with representatives of some Italian NGOs who work on the topic of discrimination. On March,30th2005, CIR (Consiglio Italiano per I Rifugati Italian Council for Refugees),
NessunLuogo è Lontano, Medici senza frontiere, Amnesty International, Forum delle Comunità Straniere, Casadei Diritti Sociali and Candelaria were invited by the Interministerial Committee at the Ministry of Foreign Affairs, to debate on these issues. Furthermore, within the Committee itself, since March 2005 to September 2005 a specific work has been implemented by a Special Working Group composed of representatives of public administration and Ministries interested in this matter, in order to analyse nature and validity of remarks adopted by UN Committee against racial discrimination and to study all appropriate answers to them.

Section I

A. The Italian legislative framework

1.Recent legislative provisions to combat racial discrimination: Legislative Decree No.215 of 9 July 2003 implementing Directive 2000/43/EC

8.The principle of equal treatment is an established feature of constitutional law in Europe: the right to formal and substantive equality is a universal right, widely represented in the acquiscommunautaire.

9.The European Union has espoused those principles of freedom, democracy, respect for human rights and the fundamental freedoms that are typical of any state where the rule of law is respected. These principles have been recognised by all the instruments of international law currently in force, first of which are the United Nations Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, and the International Convention on the Elimination of all Forms of Racial Discrimination and, at the regional level, the European Convention on Human Rights and Fundamental Freedoms.

10.Article13 of the Treaty of Amsterdam envisages that the Council of the European Union should decide unanimously, at the proposal of the Commission and subject to consultation with the European Parliament, and adopt the appropriate provisions to combat all forms of discrimination within the Union, whether these are based on gender, race or ethnic origin, religion or personal beliefs, disability, age or sexual orientation.

11.Following this approach, the intentions of the European legislators have been translated into an important provision: European Council Directive 2000/43/EC, which enshrines the principle of equality of treatment of all people, regardless of their race or ethnic origin.

12.The aim of the Directive is to create a legislative framework in which states can take action to combat discrimination on the grounds of racial or ethnic origin, with a view to putting the principle of equal treatment fully into effect in Member States.

13.It introduces a Communitywide prohibition of both direct and indirect discrimination, but at the same time limits its scope to specific sectors considered to be particularly sensitive, such as access to and conditions of employment, education, social protection, including social security and healthcare, and access to goods and services.[1] With respect to the general prohibition of discrimination, however, Member States are given a degree of discretion in regulating certain important excluded areas, especially with respect to features connected to race
or ethnic origin that might constitute an essential and decisive requirement to carry out a given job. Moreover, the Directive is without prejudice to national provisions governing the entry and stay of third country citizens, or in other words the national laws on immigration such as, in the case of Italy, the Consolidated Text of provisions governing immigration and the status of foreign nationals.[2]

14.The Directive introduces some important new rules in the fight against racial discrimination at both the functional and the organisational/structural levels.

15.In functional terms, the Directive prescribes that all Member States should provide an adequate system of legal protection to all those who feel they have been wronged by discriminatory conduct, by equipping their legal systems with judicial and/or administrative procedures that guarantee the right to fair compensation and the benefit of what is improperly defined as we will clarify later the reversal of the burden of proof.

16.Furthermore, in order to ensure an effective system of protection for the victims of discriminatory conduct, the Directive acknowledges that it is legitimate not just for the complainant but also for associations or legal entities that might be considered to represent the interests that have been wronged to take steps to set up protection mechanisms, without prejudice to the relevant domestic provisions concerning representation and defence in legal proceedings.

17.From the organisational point of view, the Directive envisages the establishment, within Member States, of one or more bodies to act as guarantors against all forms of discrimination based on race or ethnic origin. These bodies are required to provide independent assistance to victims, conduct independent enquiries, publish independent reports and formulate recommendations regarding discrimination.

18.On the basis of the guidance criteria contained in Article29 of Act No.39/2002 (the “Community Law”), the Italian Government acted promptly to transpose the Directive by adopting Legislative Decree No.215 of 9 July 2003 (Legislative Decree No.215/2003).

19.The task of drafting the Decree fell mainly to the legal affairs offices of the Department for Equal Opportunities and the Ministry of Labour and Social Policies.[3] With respect to the general tone of the Directive, in addition to transposing its content in accordance with the provisions of the enabling act, Legislative Decree No.215/2003 also has an added value that strengthens its action at the national legislative level. This added value concerns two aspects, both focusing on the issue of equal opportunities.

20.The first emerges from a reading of Article1 of the Decree, which clarifies that the objective of the legislators was to put into effect the principle of equal treatment by adopting the necessary measures to ensure that differences of race and ethnic origin should not be causes of discrimination, in a perspective that also takes into account the diverse impact that any given form of discrimination can have on men and women, as well as the existence of forms of cultural or religious racism. This principle made a tentative appearance in the recitals of the Directive, but was not then set forth explicitly in the body of the text. The Italian legislators, on the other hand, accorded great importance to this aspect, in view of the fact that the statistical data clearly indicate that episodes of discrimination are amplified when, to the elements of diversity arising from race or ethnic origin, others are added such as gender or religious beliefs.

21.The second aspect, connected to the first, is the institutional importance attributed in this area to the Department for Equal Opportunities in the Prime Minister’s Office, where an ad hoc office has been set up as a sort of frontline post in the fight against discrimination. A wider concept of equal opportunities therefore emerges, which transcends the mere question of gender equality to embrace the whole subject of social policy in the light of an institutional mission whose objective is to ensure the widest possible equality of treatment.

22.If we go on to examine the Legislative Decree in more detail, Articles2 and 3 transpose the content of the Directive more or less in its entirety, as applied to, respectively, the definitions of direct and indirect discrimination and the scope of application.

23.More specifically, Article3 affirms that the principle of equal treatment applies to all persons in the public and private sectors, with respect to access to employment, occupation, guidance and vocational training, membership of workers’ or employers’ organisations, social protection, healthcare, social advantages, education and access to goods and services.

24.The Directive is without prejudice to provisions and conditions currently in force relating to the entry into and residence of thirdcountry nationals and stateless persons on Italian territory, or provisions envisaging differences in treatment based on nationality.

25.With regard to employment, a specific area of exceptions is envisaged, while underlining that differences of treatment connected with race or ethnic origin do not constitute discrimination if the characteristics in question are a genuine and determining occupational requirement, as long as parameters of proportionality and reasonableness are respected; these are naturally left to the evaluation of the courts.

26.Finally, a highly generic safeguard clause excludes from the scope of the provision all those differences of treatment which, although resulting as indirectly discriminatory, are objectively justified by legitimate aims and by adequate and proportionate measures.

27.With respect to the judicial protection of rights, Article4 envisages the application of the procedure referred to in Article44 of Consolidated Text of provisions governing immigration and the status of foreign nationals No.286/1998 providing for a particular form of streamlined, effective civil action against discrimination.

28.Certain forms of guarantee are underlined with respect to the system of protection set forth in Article44: the possibility of attempting conciliation as envisaged by Article410 of the Civil Code and by Article66 of Legislative Decree No.165 of 2001, in disputes concerning employment relations with, respectively, private or public administrations; evidentiary arrangements under the system of presumptive evidence; and finally, the possibility for the judge to: a) award compensation for damage, including noneconomic damage; b) issue the appropriate provisions for the cessation of the discriminatory conduct and order the adoption of a plan for the removal of the discrimination; c) for the purposes of awarding damages, take into account the question of whether the discriminatory act or conduct is a response to a previous judicial action or an unjust reaction to previous actions by the victim with a view to obtaining the application of the principle of equality;[4] and d) order the publication of the judicial decision in a national daily newspaper.