Commentaires Du Gouvernement Concernant Le Rapport Sur L’Italie

COMMENTAIRES DU GOUVERNEMENT CONCERNANT LE RAPPORT SUR L’ITALIE 1 ANNEXE : POINT DE VUE DU GOUVERNEMENT L'annexe qui suit ne fait pas partie de l'analyse et des propositions de l'ECRI concernant la situation en Italie. Conformément à la procédure pays-par-pays, l’ECRI a ouvert un dialogue confidentiel avec les autorités de l’Italie sur une première version du rapport. Un certain nombre des remarques des autorités ont été prises en compte et ont été intégrées à la version finale du rapport (qui selon la pratique habituelle de l’ECRI ne pouvait tenir compte que de développements jusqu’au 22 juin 2011, date de l’examen de la première version). Les autorités ont demandé à ce que le point de vue suivant soit reproduit en annexe du rapport de l’ECRI. MINISTRY OF FOREIGN AFFAIRS - Inter-ministerial Committee on Human Rights - Comitato Interministeriale dei Diritti Umani ITALIAN REMARKS ON THE DRAFT FOURTH REPORT OF THE EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE ON ITALY Preliminary remarks The 1948 Italian Basic Law includes all basic and fundamental rights as enshrined in international and regional legal instruments and conventions. The Basic Law establishes the political framework for action and organization of the State. The fundamental elements or structural principles of the Constitution governing the organization of the State are the following: democracy, as laid down in Art. 1; the so-called personalistic principle, as laid down in Art. 2, which guarantees the full and effective protection of human rights; the pluralist principle, within the framework of democracy (Arts. 2 and 5); the importance of labour as a central value of the Italian community (Arts. 1 and 4); the principle of social solidarity (Art. 2); the principle of non discrimination and equality before the law, as laid down in Art. 3; the principles of national unity and territorial integrity (Art. 5); and, above all, the principle of the state based on the rule of law. These principles are guaranteed also at the locale level, due to the fact that the territorial organization of the Italian Republic consists of municipalities, provinces, metropolitan cities, Regions (20) and State. Local authorities are autonomous entities with their own statutes, powers and functions (Arts. 5 and 114). The protection and promotion of rights — be it civil and political, economic, social and cultural — constitutes 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 guarantee the fundamental rights of the individuals, providing them with a wide range of protection means which have, as their core, the principle of non- discrimination set out at Art. 3 of the Italian Basic law: “All citizens possess an equal social status and are equal before the law, without distinction as to sex, race, language, religion, 2 political opinions, and personal or social conditions.” The main scope of the Basic Law above provision emerges by its second paragraph that, in addition to establishing the autonomous principle of the so-called “substantial” equality and equal opportunities for all citizens in social, economic and political life, expresses a rule of interpretation to be reflected in the implementation of the principle of the so-called “formal” equality. In fact paragraph 2 describes the guarantee of non discrimination vis-à-vis the results produced or to be produced in the concrete life relations, thanks to the primary constitutional imperative of removing the “de facto” limits to equality and to pursue the ultimate goal of the “full” self-determination of the individual along with the “effective” participation in community life. Moreover, it is well known how all along its history the European Union provided itself with a steady legal base, as an instrument to act against all forms of discrimination. In this perspective, the implementation of the principle of equal treatment by the European Commission resulted in the promulgation of two Directives for the protection of rights against all forms of discrimination: the Directive 2000/43/EC, which prohibits all forms of discrimination based on race or ethnic origin, in any area or sector, both private and public; the Directive 2000/78/EC, that regulates the prohibition of discrimination on grounds of religion or belief, disability, age or sexual orientation, as regards employment and occupation. According to the guiding principles included in Art. 29 of Community Law No. 39/2002, the Italian Government promptly transposed the contents of the Directive through the adoption of the Legislative Decree No. 215 of July 9th, 2003. By means of this Decree the national regulations was provided with important regulatory and administrative provisions ensuring the implementation of effective instruments of protection against all forms of discrimination on grounds of race or ethnic origin according to a comprehensive approach based on the principle of equal treatment 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 benefits, education, goods and services, judicial protection of victims by civil actions against discrimination, including presumptive proof in favour of the victim and awarding compensation for damage. The Italian legal system also includes specific provisions to combat racist and xenophobic speech, including those actions directed to spread ideas founded on racial or ethnic hatred and the incitement to commit acts of violence on racial, ethnic or religious grounds. The legislation in force punishes the constitution of organizations, associations, movements or groups which have, among their aims, the incitement to discrimination or to violence motivated by racial, ethnic or religious reasons. It also provides for a special aggravating circumstance for all the crimes committed on the ground of discrimination or racial hatred. As to the use of racist or xenophobic language in politics, by law it is laid down that the judicial authorities are entrusted and have to verify the existence of criminal contents in documents, speeches and programs made by political representatives. The Italian Government acknowledges that prejudice and racist attitudes persist in some sectors of the Italian society to various extents and that a sustained effort is required to eradicate them. Obviously, in order to prevent and eliminate prejudices, as well as to combat discriminatory attitudes and behaviours, legal instruments are not enough: it is equally important to work on the ground for a successful interaction among cultures and beliefs. 3 In conclusion of these preliminary remarks the Italian Government would like to express the utmost appreciation for the elaboration of the Fourth draft Report on Italy by the European Commission against Racism and Intolerance, and for the formulation of observations, comments and recommendations following the presentation of different thematic materials and documents from all the relevant Administrations involved in this country-by-country monitoring round. 4 PART I - NATIONAL OBSERVATIONS FOLLOWING THE 4TH ECRI REPORT ON ITALY Existence and Application of Legal Provisions International legal instruments 5. ECRI strongly recommends that Italy ratify Protocol No. 12 to the European Convention on Human Rights as soon as possible. 6. ECRI reiterates its recommendation that Italy ratify the European Charter for Regional or Minority Languages, the European Convention on Nationality and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. 7. ECRI encourages Italy to ratify as soon as possible the Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems. 10. ECRI strongly encourages Italy to extend as soon as possible the application of the Convention on the Participation of Foreigners in Public Life at Local Level to Chapter C of this Convention, which concerns the attribution of eligibility and voting rights to foreign residents. The ratification of Protocol No. 12 to the European Convention on Human Rights is still under consideration by the relevant Administrations since it involves the definition and resolution of a wide range of financial and practical problems. As far as the European Charter on Regional or Minority Languages is concerned, Italy acknowledges the importance of such instrument. A debate within the concerned Administrations about possible ratification has been resumed in last months. As for the European Convention on Nationality, Italy acknowledges the importance of such instrument, especially in this juncture, and a recent debate, at the Governmental level, has been resumed on this topic. As far as the recommendation also included in § 6, the Italian legislation already guarantees most of the rights contained in the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. However Italy is not in a position to ratify this instrument because it does not draw any distinctions between regular and irregular migrant workers and the signature and ratification could only be planned jointly with the other European Union partners as many provisions of the Convention fall within the European Union domain. As it concerns the recommendation

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