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Criminalizing Irregular Immigration and the Returns Directive: An Analysis of the El Dridi Case

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Abstract After its judgment in the Kadzoev case, the Court of Justice has been called again to interpret the Returns Directive and its scope of application in the El Dridi case: this new ruling put an end to the situation of judicial chaos and to the very intense debate which followed non-transposition of the directive in Italian legislation. The judgment in the El Dridi case clarifies the difference between criminal detention and pre-return detention, as well as the objectives of the Returns Directive and its scope of application. This ruling will have far-reaching consequences not only on the Italian criminal and expulsions system, but also on the national legislation of a number of Member States.

1. FN11) Case C-61/11 PPU, El Dridi, 28 April 2011, OJ C 186, 25.06.2011, p. 9. The case has been dealt with under the urgent procedure, pursuant to article 104b of the Court’s Rules of Procedure, since the defendant, Mr. El Dridi, was detained.
2. FN22) After its judgment in the Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, 30.01.2010, p. 17.
3. FN33) See for instance Masera, L., Viganò, F., 2011. Addio art. 14. In Vassallo Paleologo, F., 2011. La Corte di Giustizia boccia il reato di inottemperanza all’ordine di allontanamento (14, co 5 ter). In http://www. For the comments by politicians, see f1ddd.shtml.
4. FN44) See Law Decree 89/2011, adopted on 23 June 2011, and converted in law 129/2011, adopted on 2 August 2011. According to the Italian Constitution (Article 77), law decrees are urgent decrees, which the Government may only adopt exceptionally and which must be approved by the Parliament in 60 days, since they otherwise lose validity.
5. FN55) See Cour d’Appel de Douai, Ordonnance, 6 May 2011; Cour d’Appel de Toulouse, Ordonnance, 9 May 2011; Cour d’Appel de Nimes, Ordonnance, 6 May 2011; all ordering immediate release of third-country nationals irregularly present in France who had been arrested for the crime of irregular entry. For a contrary opinion, see for instance Cour d’Appel d’Aix en Provence, Ordonnance, 9 May 2011; Cour d’Appel de Paris, Ordonnance, 7 May 2011. Judgments available in Also see the interpretative memorandum issued by the Justice Minister, contesting this interpretation of the decision of the Court, Circulaire, 12 May 2011, available at For an up-to-date analysis of the existing jurisprudence, see Slama, S., (2011) Le printemps des sans-papiers,, and D’Ambrosio, L., (2011) I rapporti tra diritto UE e legislazione penale francese in materia di immigrazione irregolare alla luce della sentenza El Dridi,
6. FN66) See, in addition to the case under consideration, the references for a preliminary ruling from: Tribunale di Ragusa, 9 February 2011, Mohamed Mrad, case C-60/11, OJ OJ C 113, 09.04.2011, p. 8; Tribunale di Ivrea, 4 February 2011, Lucky Emegor, case C-50/11, OJ C 113, 09.04.2011, p. 7; Tribunale Ordinario Di Milano, 31 January 2011, Assane Samb, Case C-43/11, OJ C 113, 09.04.2011, p. 7; Tribunale di Bergamo, 28 February 2011, Survival Godwin, Case C-94/11, OJ C 139, 07.05.2011, p. 14; Tribunale di Rovereto, 11 February 2011, John Austine, Case C-63/11, OJ C 120, 16.04.2011, p. 5; Tribunale di Santa Maria Capua Vetere, 7 March 2011, Yeboah Kwadwo, Case C-120/11, OJ C 145, 14.05.2011, p. 17; Corte Suprema di Cassazione, 21 March 2011, Demba Ngagne, Case C-140/11, OJ C 152, 21.05.2011, p. 16; Tribunale di Frosinone, Patrick Conteh, Case C-169/11, OJ C 173, 11.06.2011, p. 8; Tribunale di Treviso, 20 April 2011, Elena Vermisheva, Case C-187/11, OJ C 211, 16.07.2011, p. 11.
7. FN77) While it is not possible to explain with certainty why Italian non-last-instance judges have raised so many preliminary questions to the CJEU, contrary to what happened in other jurisdictions, it seems that the breadth of the national debate on the Returns Directive might have played a crucial role. Indeed, scholars had begun suggesting that judges could refer to the CJEU the question of the compatibility of national criminal legislation with the Returns Directive already before expiration of the deadline to transpose it, going as far as to suggest the specific language of such a request: see in particular Viganò, F. & Masera, L. (2010) ‘Inottemperanza dello straniero all’ordine di allontanamento e “direttiva rimpatri” UE: scenari prossimi venturi per il giudice italiano’, Cassazione penale, 5, p. 1410. The debate then continued on the website, which published a number of articles and judgments on this issue, including the first references for a preliminary ruling; moreover, the issue was also discussed in a number of conferences and seminars directed at lawyers and judges, which clearly also served to raise awareness among those who could request a pronouncement by the CJEU. For a list of some of the initiatives involving lawyers, see (among others) home_asgi.php?n=102&l=it&page=3; for those involving mainly judges, see
8. FN88) On 4 May 2011, the Commission expressed its concerns at the low level of implementation of the directive: see Communication on migration, COM(2011) 248, online at
9. FN99) As stated in the Preamble, recital 10, the directive is inspired by the principle of preference for voluntary return, which was already included in the Council of Europe’s Twenty Guidelines on Forced Return, adopted in September 2005 and available at RegConf/20_Guidelines_Forced_Return_en.pdf.
10. FN1010) In particular, if no period for voluntary departure was granted, or if the obligation to return was not complied with.
11. FN1111) On the negotiations which led to the adoption of the directive, see Acosta, D., 2009. The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly? 11 European Journal of Migration and Law, p. 19 ff. For an in-depth analysis of the directive, see Baldaccini, A. (2009) ‘The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive’, 11 European Journal of Migration and Law, p. 1 ff. Also see Schieffer, M. (2010). Directive 2008/115/EC, in EU Immigration and Asylum Law – a commentary. K. Hailbronner (Ed.), p. 1489 ff., Beck, München, Germany.
12. FN1212) See, for instance, the Position adopted by the UNHCR on the 16th of June 2008. ECRE, Information Note on the directive 2008/115/EC. Save the Children, Letter to the Members of the European Parliament of 11 June 2008, available online at On Latin American countries, see Acosta Arcarazo, D. (2009) Latin American reactions to the adoption of the Returns Directive, available at
13. FN1313) For a similar comment, see Viganò, F. & Masera, L. (2010) ‘Illegittimità comunitaria della vigente disciplina delle espulsioni e possibili rimedi giurisdizionali’, Rivista italiana di diritto e procedura penale, n. 2, pp. 560–596.
14. FN1414) The original text of article 13 of D. Lgs. 286/1998, as adopted on the 25th July 1998, was amended by law 30 July 2002, n. 189 (so called ‘Bossi-Fini’ law). The law was subsequently amended a number of times, and most recently, after the El Dridi judgment, by law decree 89/2011.
15. FN1515) The Prefetto represents the Government at the local level, in particular in each Province. He is the Chief of the local Government’s bureau, which forms part of the structure of the Ministry for Home Affairs, and is in charge of ensuring cooperation with local authorities. Moreover, the Prefetto has a number of powers related to public safety and security, including with regard to illegal immigration.
16. FN1616) The relevant provisions were amended by law decree 241/04, converted into law 271/04, after the Constitutional Court ruled that forcible removal is a measure affecting personal freedom and must respect the guarantees of the habeas corpus. See Constitutional Court, n. 222 of 8 July 2004, available at
17. FN1717) The justice of the peace is an alternative system of criminal (as well as civil) judges, who have jurisdiction over less serious cases; the procedure to be followed is more flexible and speedy than the ordinary one, given the fact that the defendant, if convicted, may not be sentenced to criminal detention, but only to alternative punishments (in particular, fines or home detention). Judges working as justice of the peace are not selected through the national competition for magistrates, but appointed for four years among qualified lawyers (having passed the bar exam) or persons who have a law degree and work experience in specific areas. See legislative decree 274/2000 on the criminal jurisdiction of the justice of the peace. The jurisdiction of the justice of the peace over irregular immigration has been strongly criticized, since it is deemed not to ensure respect of the immigrants’ rights: see for instance Pugiotto, A. (2009) Purchè se ne vadano. La tutela giurisdizionale (assente o carente) nei meccanismi di allontanamento dello straniero. Relazione al Convegno nazionale dell’Associazione Italiana Costituzionalisti, Also see Caputo A. & Pepino L. (2005) ‘Giudice di pace, riserva di giurisdizione e libertà dagli arresti’, Questione giustizia, n. 1, pp. 13–31.
18. FN1818) See Ministero dell’Interno, Dipartimento della Pubblica sicurezza, Circolare 17 dicembre 2010. 2011, Guida al diritto 5, pp. 20–23.
19. FN1919) Indeed, in the jurisprudence of the Court of Justice it is well established that implementing EU legislation through mere administrative practices, which are alterable at will by the authorities and are not given the appropriate publicity, does not properly fulfill the obligations of States, as they must remedy the incompatibility of national legislation with EU law through national provisions of a binding nature which have the same legal force as those which must be amended (see i.a. case 168/85, Commission v. Italy, 15 October 1986; case 334/94, Commission v. France, 7 March 1996).
20. FN2020) Besides, some Authors also argued that the Circolare was incompatible with the Constitution, since it contained rules on expulsion and pre-removal detention which, according to article 13 of the Italian Constitution (on personal freedom), as well as to article 5 of the European Convention of Human Rights, may only be set by law. See Vassalli Paleologo, F. (2010) Direttiva rimpatri e stato di diritto – un commento alla luce della circolare Manganelli, online at
21. FN2121) More serious cases were cases involving persons who illegally entered the country, did not request a residence permit, or whose permit was withdrawn or declared void; less serious cases concerned persons who did not request renewal of their residence permit, whose request was refused, or who did not comply with the obligation to register (in case of short visits and stays).
22. FN2222) Mention of due cause was included in article 14 para. 5 quater through a recent decision of the Constitutional Court based on article 3 of the Constitution: see judgment n. 359 of 13 December 2010, in
23. FN2323) An interpretation which was later confirmed by the Court of Justice in the Kadzoev case, as recalled for instance by Viganò, F. (2011) Disapplicazione dell’art. 14 co. 5 ter e quater: sette repliche ad altrettante obiezioni, at–disapplicazione_dell___art__14_co__5_ter_e_quater__sette_repliche_ad_altrettante_obiezioni/.
24. FN2424) See in particular the arguments brought by Viganò, F. & Masera, L. (2010) ‘Inottemperanza dello straniero all’ordine di allontanamento e “direttiva rimpatri” UE: scenari prossimi venturi per il giudice italiano’, Cassazione penale, v. 5, p. 1410 ff.; and Natale, A. (2011) La direttiva 2008/115/CE e i reati previsti dall’art. 14, D. Lgs. n. 286/98, at p. 31 ff. These Authors, while theorizing the existence of a clash between national criminal legislation and EU law, also mention the possibility to declare the administrative orders forming the basis of the crime as void.
25. FN2525) See for instance Tribunale di Aosta, 28 January 2011, in
26. FN2626) See for instance Amato, G. (2011) ‘Un sistema incompatibile con la direttiva Ue perché non privilegia il rimpatrio volontario’, Guida al diritto, v. 5, pp. 24–27; Focardi, F. (2011) Ancora sull’impatto della direttiva comunitaria 2008/115/Ce sui reati di cui all’artt. 14 co. 5-ter e 5 quater d. lgs. 286/98, at Viganò, F. & Masera, L. (2010) ‘Illegittimità comunitaria della vigente disciplina delle espulsioni e possibili rimedi giurisdizionali’, Rivista italiana di diritto e procedura penale, n. 2, pp. 560–596.
27. FN2727) For the various solutions that have been adopted, see for instance, i. a., Procura della Repubblica presso il Tribunale di Rovereto, 17 January 2011; Tribunale di Torino, 8 January 2011. All available at
28. FN2828) See Tribunale di Milano, 18 January 2011 (contesting however the retroactive application of the Returns Directive); Tribunale di Pavia, 18 January 2011 (according to which, while the period for voluntary repatriation of 5 days contrasts with the Directive, this does not prevent a criminal conviction, since the Directive also allows for exceptions); both available at /materia/3-legislazione_penale_speciale/41-stranieri/.
29. FN2929) See for instance Tribunale di Verona, 20 January 2011; Corte di Appello di Ancona, judgment of 31 January 2011; Tribunale di Bologna, 29 December 2010. These decisions are available online, at
30. FN3030) The interpretation of article 2 of the Italian criminal code is a particularly complex issue, giving rise to widely varying interpretations. Here, it seems useful to recall the position taken by the Corte di Cassazione, sitting in Grand Chamber (Sezioni Unite), in a judgment rendered on 27 September 2007 (judgment n. 2451). Even this case concerned article 14, para. 5 ter: the crime had been committed by persons who, at the time of the commission of the crime, were third country nationals, but who had in the meanwhile acquired EU citizenship, given the enlargement to Rumania. The Court concluded that acquisition of citizenship after the commission of the crime did not affect the possibility to punish it, as it did not involve the principle of retroactive application of more lenient criminal provisions. See the judgment in Cassazione penale, 2008, 3, p. 898.
31. FN3131) See Tribunale di Bologna, 16 March 2011; Tribunale di Torino, 3 January 2011; Prosecutor of Rome, document of 7 February 2011. All available online, at
32. FN3232) See in particular Viganò, F. & Masera L., op. cit., p. 1415; Natale, A., op. cit., p. 36; Viganò, F. (2011) Il dibattito continua: ancora in tema di direttiva rimpatri e inosservanza dell’ordine di allontanamento, online at
33. FN3333) See, together with the Authors cited above, Court of Cassation, decision n. 11050/2011, 18 March 2011 (reference for a preliminary ruling to the Court of Justice); Procura della Repubblica presso il Tribunale di Firenze, Document of 18 January 2011; Procura della Repubblica presso il Tribunale di Milano, Guidelines of 11 March 2011. All documents available online, at
34. FN3434) See Natale, A., op. cit., p. 38.
35. FN3535) And, potentially, then again as an administrative measure and so forth, in a circle which only came to an end when the person was finally expelled: see Viganò, F. (2011) Disapplicazione dell’art. 14, c. 5 ter e quarter, op. cit. More generally, on the risk that irregularly staying immigrants could be subjected to a ‘spiral of convictions’, see Caputo, A. (2009) ‘Ingiustificata inosservanza dell’ordine di allontanamento del questore’, in S. Corbetta, A. della Bella, G.L. Gatta (eds), Sistema penale e sicurezza pubblica, Milan, p. 273.
36. FN3636) See in particular d’Ambrosio, L. (2011) Qualche ulteriore considerazione sulla illegittimità comunitaria della vigente disciplina amministrativa e penale in materia di espulsioni, at
37. FN3737) See Epidendio, T.E. (2011) Direttiva rimpatri e articolo 14 t.u. immigrazione and Focardi, F., (2011), op. cit. Both articles available online, Also see the reference to the Constitutional Court by Tribunale di Busto Arsizio, 21 January 2011, Gazzetta Ufficiale della Repubblica Italiana, I Serie Speciale, n. 19, 4 May 2011, p. 37.
38. FN3838) See for instance Tribunale di Milano, Decision of 18 January 2011, in
39. FN3939) See Procuratore Generale di Torino, Ricorso per Cassazione avverso la sentenza del Tribunale di Torino del 5 gennaio 2011, 4 February 2011 (Grounds for Appeal to the Court of Cassation). Available at
40. FN4040) Cited above, in particular paras. 45 and 48.
41. FN4141) See Epidendio, T., 2011. Cit.
42. FN4242) See Corte d’Appello di Trento, Ordinanza nel procedimento a carico di Ei Dridi Hassen, 2 February 2011, at
43. FN4343) The decision of the Court on this point seems, however, very questionable: according to art. 3(7) of the directive, a risk of absconding implies ‘the existence of reasons in an individual case which are based on objective criteria defined by law’. Italian law, on the contrary, did not define such objective criteria: a decision on the existence of a risk of absconding could thus not be taken in accordance with the directive.
44. FN4444) See the View of Advocate General Mazàk, 1 April 2011.
45. FN4545) Moreover, the AG also added that a Member State which has not adopted the provisions transposing a directive cannot rely on the application of a right deriving from that directive, such as the right to restrict its scope ratione personae, as otherwise the State would be able to benefit from rights deriving from the directive without fulfilling its obligations to transpose it: see para. 28 of the view.
46. FN4646) See para. 41 of the view.
47. FN4747) Paras 42 ff. of the view.
48. FN4848) In particular, the Advocate General makes reference to Joined Cases C-338/04, C-359/04 and C-360/04, Placanica and Others, 2007, ECR I-1891.
49. FN4949) See paragraph 32 f. of the ruling.
50. FN5050) See in particular para. 41 of the judgment.
51. FN5151) See paragraph 43 of the decision: the Court also makes reference to the jurisprudence of the European Court of Human Rights, and in particular to its judgment in the case Saadi v. United Kingdom, 29 January 2008.
52. FN5252) See the ruling, para. 45.
53. FN5353) Thus confirming the view which was implicitly at the basis of its decision in the Kadzoev case.
54. FN5454) See for instance Focardi, F., 2011. Cit. Epidendio, T.E., 2011. Cit.
55. FN5555) See para. 49 of the judgment.
56. FN5656) A conclusion which may be used to call into question the compatibility of the Italian legislation criminalizing illegal immigration (and, as of today, violation of return orders) and sanctioning it with immediate expulsion. For a more in-depth examination of this question, see below.
57. FN5757) See para. 52 of the judgment.
58. FN5858) See paragraph 59.
59. FN5959) And, we may add, which is expressly recognized by article 49(1) of the Charter of Fundamental Rights of the European Union.
60. FN6060) See in particular Viganò, F. and Masera L., op. cit., p. 1415; Natale, A., op. cit., p. 36; Viganò, F. (2011) Il dibattito continua, op. cit. The view according to which the Returns Directive would aim at protecting the immigrants’ fundamental rights is also to be found in de Pasquale, P. (2010) ‘Respingimenti, rimpatri e asilo: la tutela degli immigrati irregolari nell’UE’, Diritto dell’Unione Europea, v. 1., p. 19. Also see Corte di Cassazione, 8 March 2011, Ngagne (Reference for a preliminary ruling to the CJEU), in
61. FN6161) Thus, States would be allowed to criminalize violation of a re-entry ban (issued in accordance with article 11 of the directive) on the part of a third-country national who was effectively expelled: in this case, it seems, the directive would no longer apply. See for instance article 13, para. 13 and 13 bis, of the Italian immigration law.
62. FN6262) As was underlined in particular by Mincheva, E. (2010) ‘Case report on Kadzoev, 30 November 2009’, 12 European Journal of Migration and Law, p. 361 ff.
63. FN6363) See Corte di Cassazione, Sez. I penale. Notizie di decisione.
64. FN6464) See for instance Tribunale di Milano, 29 April 2011, judgment withdrawing a conviction judgment, at Also see the position adopted by the Office of the Prosecutor at the Court of Cassation on the 2nd May 2011, in which the General Prosecutor invited all national prosecutors to file requests to obtain withdrawal of judgments convicting detainees for the crimes which have been declared incompatible with the Returns Directive, available in
65. FN6565) See article 314 of the Code of Criminal Procedure, allowing to claim compensation for unlawful detention.
66. FN6666) See, already before the adoption of the present judgment, Giudice di Pace di Milano, 26 April 2011, available at; Giudice di Pace di Cremona, 25 March 2011, in; Giudice di Pace di Napoli, 11 April 2011, in Also Miraglia, R. (2011) Cosa resta della Bossi Fini dopo la sentenza El Dridi della Corte di Giustizia Europea?, at post_html.
67. FN6767) Law Decree 89/2011, adopted on 23 June 2011 and transposed, with amendments, into Law 129/2011, adopted on 2 August 2011. According to Article 77 of the Italian Constitution, the Government may only adopt law decrees in exceptional and urgent cases; such decrees must be approved by the Parliament in 60 days, otherwise they become void.
68. FN6868) However, less coercive measures are only applicable to third-country nationals who have a valid passport and are to be applied, in lieu of expulsion, at the discretion of the police superintendant. Such measures include (article 14, para. 1 bis): seizure of passport (to be returned to the person before he/she leaves the national territory); obligation to live in a specified place; obligation to present himself periodically at a police station.
69. FN6969) Indeed, an evaluation of the existence of a risk of absconding may be based on any of the following: lack of valid passport; lack of documents proving that the immigrants have an accommodation where they can be found; having falsely declared their identity; breach of administrative orders; violation of less coercive measures applied in lieu of detention. Thus, since expulsions are to be carried out forcibly if there is a risk of absconding, requests for a period for voluntary departure may be rejected in a high number of cases. According to some scholars, the new provisions also do not comply with the Returns Directive, since they create a sharp divide between third-country nationals who have a valid passport and those who do not have any document: see for instance Masera, L. (2011) Il riformato art. 14 co. 5 ter d.lgs. 286/98 e la sua applicabilità nei procedimenti per fatti antecedenti all’entrata in vigore del d.l. 89/2011, at
70. FN7070) See in particular Natale, A. (2011) La direttiva 2008/115/CE e il decreto legge di attuazione n. 89/2011. Prime riflessioni a caldo, at
71. FN7171) For instance, the maximum period of pre-removal detention has now been extended to the maximum allowed by the Returns Directive, that is, 18 months: thus, transposition of the directive has led Italy to lower its human rights standards, in violation of a specific statement made by the Council and annexed to the Directive, according to which the implementation of the Directive ‘should not be used in itself as a reason to justify the adoption of provisions less favourable to persons to whom it applies’. See document n. 16166/08 ADD 1 REV 1.
72. FN7272) For a more in-depth analysis of the reasons why the new offence could be deemed to elude the scope of application of the Directive, depriving it of its effectiveness, see infra, para. 9.2.
73. FN7373) See for instance Articles L. 621-1 and L-621-2 of the French immigration law (Code de l’entrée et du séjour des étrangers et du droit d’asile), punishing illegal immigration by detention and a fine; § 95 of the German immigration law (Aufenthaltsgesetz), punishing illegal immigration by detention or a fine.
74. FN7474) It is true that this conclusion does not automatically follow from the Court’s judgment, as this has not clarified when the return procedure is meant to begin; at the same time, assuming that States may defer issuance of a return decision in order to punish a person for the very same conduct (irregular entry or stay) which should form the basis of a return decision according to article 6 runs counter the spirit of the directive and may jeopardize the attainment of the objectives it pursues.
75. FN7575) This reasoning has already been adopted by a number of French judges: see for instance Cour d’Appel de Douai, Ordonnance, 6 May 2011, and the other judgments cited supra, note 5. Since the interpretation of the Returns Directive was unclear, in particular with regard to its applicability to the crime of illegal immigration (article L-621-1 of the CESEDA), the Cour d’Appel de Paris has finally decided to refer the question to the CJEU: see Ordonnance, 29 June 2011, Alexandre Achughbabian, at The Court will therefore soon have another opportunity to rule on the scope of application of the Returns Directive.
76. FN7676) This speech of the Minister, On. Roberto Maroni, is available at 470?stenog=/_dati/leg16/lavori/stenbic/30/2008/1015&pagina=s020#Maroni%20Roberto%204%202.
77. FN7777) See para. 49 of the judgment.
78. FN7878) On the issue of the compatibility of article 10 bis of the Immigration law with the Returns Directive, see for instance Viganò & Masera (2011). Also see Giudice di Pace di Torino, 22 February 2011 (ruling that the crime does not comply with the directive as it is punishable even before the irregular migrant has been given a term for voluntary return, as requested by article 7 of the directive). Also see the reference for a preliminary ruling from the Giudice di pace di Mestre lodged on 24 March 2011, Criminal proceedings against Asad Abdallah, Case C-144/11 (concerning the compatibility of article 10 bis with the Returns Directive).

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