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Salute e Servizi: Articoli sulla prevenzione
Useful for Migrants in Italy
Since the approval of the Security Measures – pacchetto sicurezza, police anti-crime interventions have intensified on a wide scale. Time and again, bus ticket inspectors and the municipal police get on public buses in order to carry out inspections especially against immigrants. The army has also joined forces. Everyone accuses immigrants’citizens of being illegal immigrants but no one admits that the government is the only one responsible for irregular immigration. Those That the government, the media and part of the public so called “clandestine” are people who work but cannot legalize their status because the immigration law does not consent this. Several Italians who (hypocritically) complain of the danger of “illegal immigrants” employ them in their factories or as caretakers for their children and their parents.
The aim of the present information sheet is to let immigrants and other citizens know what the police can and cannot do in order to denounce possible abuses.
Written by the lawyers of “Supporto legale contro il razzismo” (legal support against racism) with the contribution of Arci Todo Cambia association for its publication.
Info: controilrazzismo@yahoo.it - todo.cambia@libero.it
PROOF OF IDENTITY Generally, police officials (the state police, the carabinieri and other forces of the army, the municipal police – only those qualified as security police officials) can oblige you to follow them in their office if you refuse to give them your personal particulars (name, surname place and date of birth) or show your identification document. This is called detention for identification (fermo di identificazione).
You can be taken to the police headquarters (questura) when the Police have sufficient evidence that your personal particulars are false (art. 11 of legislative decree 21.3.1978 n.59).
You can be held in custody at the police headquarters, police station or at the military police station for identification for a maximum of 24 hours, which also includes taking fingerprints. Generally, holding hours should not exceed 12 hours (article 4 of tulps[1]).
Your fingerprints can be taken even without your permission. But neither your hair nor your saliva can be taken without your permission unless authorised by a judge. Even if you are accused of one of the above crimes, you must be released, at maximum, after 24 hours. If you are held in custody or arrested, you have the right to appoint a lawyer.
Any Italian or EU citizen who refuses to give his/her personal particulars (name, surname, etc) can be arrested for 1 month (art. 651 penal code). If he/she refuses to show his/her papers, detention is possible for a maximum of two months (art. 294 reg. tulps and art. 221 tulps).
Any non EU citizens (extracomunitario) who refuses to show his/her papers (passport and residence permit) when asked to without any concrete reason to policemen and security agents can be arrested for 6 months; in case of doubt, he/she can be taken to the police headquarters for identification and held in custody for a maximum of 24 hours – art. 6 legislative decree n. 286/98.
The Security Measures also introduced severe punishment to anyone who gives false identity: if you state in speech or in writing false generalities to a public officer you may be imprisoned from a minimum of one year to a maximum of 6 years (articles 495 and 496 penal code) with the newly added sentence of being an illegal immigrant. In other words, the penalty for committing a crime can increase simply because you do not have a residence permit (art. 61, n.11 bis penal code).
Although the offence of insulting a public officer (oltraggio a pubblico ufficiale) has been decriminalised, the crimes of revilement i.e. insult or offence of a person (article 594 penal code) and obstruction of an officer of the law i.e. when a person violently offers resistance to or threatens a public officer while on duty (art. 337 penal code) are still in force and is often used by police authorities. Public service agents or private surveillance guards who work in train or subway stations and on buses can accuse you of the crime of obstruction for violent reaction or threats against them because they are considered public security reserve officers.
PRACTICAL ADVICEIn case a policeman or a carabiniere stops you:
The police cannot arrest you for the above-mentioned crimes (art. 384 c.p.p[1]); they can only take you to the police headquarters or to a police station for identification. If the agent checking you is in plain clothes, he/she must first identify him/herself (particulars, identification number and police unit) and show his/her identification card. If he/she does not do so, you are not obliged to follow his/her orders.
In general whenever the police stops you, it is always a good thing to ask for their identification tag, take note of the number plate of the car, write down the name of the policemen who question or show you a copy of the official notice and always ask a copy of what you are asked to sign.
These could serve to denounce eventual irregularities and/or arrogant behaviour by the police.
In case a military soldier stops you: Military soldiers that are actually present in varied cities serve as agents of public security but do not have the same role as the police. In other words, they can, just as the police and the carabinieri:
1) Ask for your particulars and identity papers
2) Take you to the police headquarters for further identification (detention for identification)
3) Body search you and search your car ONLY under the following circumstances:
a) Exceptional emergency cases whereby a judge cannot intervene;
b) Unjustifiable behaviour of a person that calls for the verification of the presence of arms or explosives.
Apart from these three cases, THEY CANNOT body search you and a search is against the law. In any case, they must write down an official notice and hand you a copy of it. (art. 4 L.22nd May 1975, n.152)
Municipal police officers are public officers who may also act, although not always, as reserve public security officers and perform the duties of the crime investigation or administrative police. They can stop and take you to the police headquarters, the police station or to the military police station for identification. When they do not perform the duties of the crime investigation police they CANNOT:
- Oblige you to make declarations or anything else
- Take you with force to the police station (CID)
Inspect your house, caravan, tent or inside your car unless explicitly authorised by the law (art. 13, last paragraph)
The Security Measures - “pacchetto sicurezza” have also extended Mayors’ powers who can now:
- Report any foreigner that does not have a permit of stay to police authorities and prompt them to issue an expulsion order (art. 6 leg. decree n.92/08 converted to Law n. 125/08 so-called security decree – decreto sicurezza);
- Intervene in order to “prevent and combat situations that block public viability/traffic or alter public decency in particular, unauthorised or unlawful occupancy of public area”.
Consequently, it is probable that they may issue measures which limit personal liberty (fines to those who drink alcohol on the streets or those who meet in groups in some areas, etc.) and that the municipal police will increase raids against hawkers.
In case a bus ticket inspector stops you:
According to art. 357 of the penal code, a bus ticket inspector is a public officer and can:
- ask your personal particulars (name, surname, etc.) and if you refuse to give them a bus ticket inspector can accuse you as per art. 651 of the penal code (arrest max. 1 month, see above);
- ask you to show your papers ONLY if he/she has to hand you a fine and the record. If you do not show your papers he/she can stop you and call the police in order to proceed with you identification.
It is always better to have a bus ticket on you person.
- Remember, a bus inspector is not a policeman even if he/she sometimes behaves so. If he/she accuses you of a crime, he/she must file a complaint like all ordinary citizens. Unless, as mentioned above, you do not show your papers and he/she has to fine you, a bus ticket inspector cannot use force or other means to oblige you to do something, cannot expel you nor can he/she stop you and hand you over to the police for an expulsion order.
In case of round-ups on buses, that is when bus ticket inspectors get on the bus with the police or traffic agents and ask for tickets and papers in particular to foreigners, you can denounce such actions to the police authorities as they are based on ethnic or national origin. This could be considered discriminatory. It is therefore important to:
- Document what is happening (take pictures, film). If there are any police vans, document how many there are and how many people are forced out of the bus and put on the police vans; take down the number plate;
- Find people on the spot willing to testify, both foreign citizens who experience such round-ups and Italians present on the bus;
- Identify what force the police agents belong to (state police, carabinieri, municipal police/traffic agents)
- Foreign citizens taken into police vans must show their passport/residence permit unless they have a justified reason (lost, stolen or provisionally retained by others, etc.) for not doing so. The police can take a foreign citizen to the police headquarters in case of doubt over his/her identity, which in any case, cannot be based only on his/her ethnic and national origin. It is therefore wise to demand explanations of the control and why the person is taken to the police headquarters immediately.
SEARCHING AND ACCESS IN A HOUSE
Generally the police cannot body search a person nor enter a private house or private premises without a search warrant issued by a judge. If they do have the search warrant, a person has the right to:
- have a copy of the search warrant issued by the judge before the searching starts;
- the presence of a lawyer or a reliable person (easily on hand) during the search;
A person or private premises can be searched without a search warrant only in the following cases:
1) While a crime is being committed, a jailbreak (flee) or when a preventive detention order, a detention order or an arrest order (art 352 c.p.p.) has to be executed;
2) People, premises, cars, luggage and personal belongings can be searched by the crime investigation police (state police, carabinieri, customs officers, foresters) to prevent or restrain drug trafficking (art. 103 presidential decree n. 309/1990);
3) Houses, public and private premises, single or blocks of buildings can be searched by the crime investigation police if it has well-grounded suspicions on the presence of weapons, munitions or explosives, a person hiding away from the police, an escapee linked to crimes committed by criminal organisations like the Mafia, drug trafficking or terrorism (art. 41 tulps and art. 25 leg. decree 8.6.1992, n.306);
The new security measures provide that, in exceptional and urgent cases, the army can carry out on-the-spot search on people whose behaviour and presence in a given time and place are unjustifiable, in order to verify the presence of weapons and explosives; they can also search means of transportation. Even in this case:
- They must give you a copy of the search record and even if nothing was seized they must indicate the operations undertaken, the reason for carrying out a search without an authorisation from a judge, names and qualification of the agents who carried out the search. If you cannot read, you are entitled to have an interpreter and always ensure they write down that you do not speak Italian;
- In case of seizure of objects and documents they must be specifically indicated in the search record.
Searches CANNOT be carried out in a house or in closed areas in the immediate vicinity before seven o’clock and after eight o’clock. They can be carried out only in urgent cases with a search warrant issued by a judge. (art. 251 c.p.p.)
NOTE: a new provision of the Security measures provides “imprisonment from 6 months to three years for “whomsoever for a valuable consideration, derives unlawful benefit by renting or providing accommodation in his/her building to a foreigner, devoid of a residence permit”. The building can be confiscated unless the owner is unaware of the situation.
NOTE: Always ask why the search is carried out and remember that except for the above-mentioned cases, the police do not have the right to enter your house: for example, if the police present themselves in your house without a search warrant because your neighbours complain of noise and called them, you are not obliged to let them into your house. If the police enter your house with the pretext of searching for weapons or drug and issue an expulsion order, it is illegitimate as this violates art. 14 of the Italian constitution (see Court of Trieste, 24.7.2004) and you can file a petition.
It is always advisable to move in two or in groups and have someone in the house with you so that there are witnesses who can tell of eventual abuses committed by the police force.
[1] Codice di procedura penale – code of criminal procedure
sentence of being an illegal immigrant. In other words, the penalty for committing a crime can increase simply because you do not have a residence permit (art. 61, n.11 bis penal code).
Although the offence of insulting a public officer (oltraggio a pubblico ufficiale) has been decriminalised, the crimes of revilement i.e. insult or offence of a person (article 594 penal code) and obstruction of an officer of the law i.e. when a person violently offers resistance to or threatens a public officer while on duty (art. 337 penal code) are still in force and is often used by police authorities. Public service agents or private surveillance guards who work in train or subway stations and on buses can accuse you of the crime of obstruction for violent reaction or threats against them because they are considered public security reserve officers.
PRACTICAL ADVICEIn case a policeman or a carabiniere stops you:
The police cannot arrest you for the above-mentioned crimes (art. 384 c.p.p[1]); they can only take you to the police headquarters or to a police station for identification. If the agent checking you is in plain clothes, he/she must first identify him/herself (particulars, identification number and police unit) and show his/her identification card. If he/she does not do so, you are not obliged to follow his/her orders.
In general whenever the police stops you, it is always a good thing to ask for their identification tag, take note of the number plate of the car, write down the name of the policemen who question or show you a copy of the official notice and always ask a copy of what you are asked to sign.
These could serve to denounce eventual irregularities and/or arrogant behaviour by the police.
In case a military soldier stops you: Military soldiers that are actually present in varied cities serve as agents of public security but do not have the same role as the police. In other words, they can, just as the police and the carabinieri:
1) Ask for your particulars and identity papers
2) Take you to the police headquarters for further identification (detention for identification)
3) Body search you and search your car ONLY under the following circumstances:
a) Exceptional emergency cases whereby a judge cannot intervene;
b) Unjustifiable behaviour of a person that calls for the verification of the presence of arms or explosives.
Apart from these three cases, THEY CANNOT body search you and a search is against the law. In any case, they must write down an official notice and hand you a copy of it. (art. 4 L.22nd May 1975, n.152)
Municipal police officers are public officers who may also act, although not always, as reserve public security officers and perform the duties of the crime investigation or administrative police. They can stop and take you to the police headquarters, the police station or to the military police station for identification. When they do not perform the duties of the crime investigation police they CANNOT:
- Oblige you to make declarations or anything else
- Take you with force to the police station (CID)
Inspect your house, caravan, tent or inside your car unless explicitly authorised by the law (art. 13, last paragraph)
The Security Measures - “pacchetto sicurezza” have also extended Mayors’ powers who can now:
- Report any foreigner that does not have a permit of stay to police authorities and prompt them to issue an expulsion order (art. 6 leg. decree n.92/08 converted to Law n. 125/08 so-called security decree – decreto sicurezza);
- Intervene in order to “prevent and combat situations that block public viability/traffic or alter public decency in particular, unauthorised or unlawful occupancy of public area”.
Consequently, it is probable that they may issue measures which limit personal liberty (fines to those who drink alcohol on the streets or those who meet in groups in some areas, etc.) and that the municipal police will increase raids against hawkers.
In case a bus ticket inspector stops you:
According to art. 357 of the penal code, a bus ticket inspector is a public officer and can:
- ask your personal particulars (name, surname, etc.) and if you refuse to give them a bus ticket inspector can accuse you as per art. 651 of the penal code (arrest max. 1 month, see above);
- ask you to show your papers ONLY if he/she has to hand you a fine and the record. If you do not show your papers he/she can stop you and call the police in order to proceed with you identification.
It is always better to have a bus ticket on you person.
- Remember, a bus inspector is not a policeman even if he/she sometimes behaves so. If he/she accuses you of a crime, he/she must file a complaint like all ordinary citizens. Unless, as mentioned above, you do not show your papers and he/she has to fine you, a bus ticket inspector cannot use force or other means to oblige you to do something, cannot expel you nor can he/she stop you and hand you over to the police for an expulsion order.
In case of round-ups on buses, that is when bus ticket inspectors get on the bus with the police or traffic agents and ask for tickets and papers in particular to foreigners, you can denounce such actions to the police authorities as they are based on ethnic or national origin. This could be considered discriminatory. It is therefore important to:
- Document what is happening (take pictures, film). If there are any police vans, document how many there are and how many people are forced out of the bus and put on the police vans; take down the number plate;
- Find people on the spot willing to testify, both foreign citizens who experience such round-ups and Italians present on the bus;
- Identify what force the police agents belong to (state police, carabinieri, municipal police/traffic agents)
- Foreign citizens taken into police vans must show their passport/residence permit unless they have a justified reason (lost, stolen or provisionally retained by others, etc.) for not doing so. The police can take a foreign citizen to the police headquarters in case of doubt over his/her identity, which in any case, cannot be based only on his/her ethnic and national origin. It is therefore wise to demand explanations of the control and why the person is taken to the police headquarters immediately.
SEARCHING AND ACCESS IN A HOUSE
Generally the police cannot body search a person nor enter a private house or private premises without a search warrant issued by a judge. If they do have the search warrant, a person has the right to:
- have a copy of the search warrant issued by the judge before the searching starts;
- the presence of a lawyer or a reliable person (easily on hand) during the search;
A person or private premises can be searched without a search warrant only in the following cases:
1) While a crime is being committed, a jailbreak (flee) or when a preventive detention order, a detention order or an arrest order (art 352 c.p.p.) has to be executed;
2) People, premises, cars, luggage and personal belongings can be searched by the crime investigation police (state police, carabinieri, customs officers, foresters) to prevent or restrain drug trafficking (art. 103 presidential decree n. 309/1990);
3) Houses, public and private premises, single or blocks of buildings can be searched by the crime investigation police if it has well-grounded suspicions on the presence of weapons, munitions or explosives, a person hiding away from the police, an escapee linked to crimes committed by criminal organisations like the Mafia, drug trafficking or terrorism (art. 41 tulps and art. 25 leg. decree 8.6.1992, n.306);
The new security measures provide that, in exceptional and urgent cases, the army can carry out on-the-spot search on people whose behaviour and presence in a given time and place are unjustifiable, in order to verify the presence of weapons and explosives; they can also search means of transportation. Even in this case:
- They must give you a copy of the search record and even if nothing was seized they must indicate the operations undertaken, the reason for carrying out a search without an authorisation from a judge, names and qualification of the agents who carried out the search. If you cannot read, you are entitled to have an interpreter and always ensure they write down that you do not speak Italian;
- In case of seizure of objects and documents they must be specifically indicated in the search record.
Searches CANNOT be carried out in a house or in closed areas in the immediate vicinity before seven o’clock and after eight o’clock. They can be carried out only in urgent cases with a search warrant issued by a judge. (art. 251 c.p.p.)
NOTE: a new provision of the Security measures provides “imprisonment from 6 months to three years for “whomsoever for a valuable consideration, derives unlawful benefit by renting or providing accommodation in his/her building to a foreigner, devoid of a residence permit”. The building can be confiscated unless the owner is unaware of the situation.
NOTE: Always ask why the search is carried out and remember that except for the above-mentioned cases, the police do not have the right to enter your house: for example, if the police present themselves in your house without a search warrant because your neighbours complain of noise and called them, you are not obliged to let them into your house. If the police enter your house with the pretext of searching for weapons or drug and issue an expulsion order, it is illegitimate as this violates art. 14 of the Italian constitution (see Court of Trieste, 24.7.2004) and you can file a petition.
It is always advisable to move in two or in groups and have someone in the house with you so that there are witnesses who can tell of eventual abuses committed by the police force.
[1] Codice di procedura penale – code of criminal procedure
[1] TULPS – Testo Unico delle Leggi di Pubblica Sicurezza - Unified Laws on Public security
The aim of the present information sheet is to let immigrants and other citizens know what the police can and cannot do in order to denounce possible abuses.
Written by the lawyers of “Supporto legale contro il razzismo” (legal support against racism) with the contribution of Arci Todo Cambia association for its publication.
Info: controilrazzismo@yahoo.it - todo.cambia@libero.it
PROOF OF IDENTITY Generally, police officials (the state police, the carabinieri and other forces of the army, the municipal police – only those qualified as security police officials) can oblige you to follow them in their office if you refuse to give them your personal particulars (name, surname place and date of birth) or show your identification document. This is called detention for identification (fermo di identificazione).
You can be taken to the police headquarters (questura) when the Police have sufficient evidence that your personal particulars are false (art. 11 of legislative decree 21.3.1978 n.59).
You can be held in custody at the police headquarters, police station or at the military police station for identification for a maximum of 24 hours, which also includes taking fingerprints. Generally, holding hours should not exceed 12 hours (article 4 of tulps[1]).
Your fingerprints can be taken even without your permission. But neither your hair nor your saliva can be taken without your permission unless authorised by a judge. Even if you are accused of one of the above crimes, you must be released, at maximum, after 24 hours. If you are held in custody or arrested, you have the right to appoint a lawyer.
Any Italian or EU citizen who refuses to give his/her personal particulars (name, surname, etc) can be arrested for 1 month (art. 651 penal code). If he/she refuses to show his/her papers, detention is possible for a maximum of two months (art. 294 reg. tulps and art. 221 tulps).
Any non EU citizens (extracomunitario) who refuses to show his/her papers (passport and residence permit) when asked to without any concrete reason to policemen and security agents can be arrested for 6 months; in case of doubt, he/she can be taken to the police headquarters for identification and held in custody for a maximum of 24 hours – art. 6 legislative decree n. 286/98.
The Security Measures also introduced severe punishment to anyone who gives false identity: if you state in speech or in writing false generalities to a public officer you may be imprisoned from a minimum of one year to a maximum of 6 years (articles 495 and 496 penal code) with the newly added sentence of being an illegal immigrant. In other words, the penalty for committing a crime can increase simply because you do not have a residence permit (art. 61, n.11 bis penal code).
Although the offence of insulting a public officer (oltraggio a pubblico ufficiale) has been decriminalised, the crimes of revilement i.e. insult or offence of a person (article 594 penal code) and obstruction of an officer of the law i.e. when a person violently offers resistance to or threatens a public officer while on duty (art. 337 penal code) are still in force and is often used by police authorities. Public service agents or private surveillance guards who work in train or subway stations and on buses can accuse you of the crime of obstruction for violent reaction or threats against them because they are considered public security reserve officers.
PRACTICAL ADVICEIn case a policeman or a carabiniere stops you:
The police cannot arrest you for the above-mentioned crimes (art. 384 c.p.p[1]); they can only take you to the police headquarters or to a police station for identification. If the agent checking you is in plain clothes, he/she must first identify him/herself (particulars, identification number and police unit) and show his/her identification card. If he/she does not do so, you are not obliged to follow his/her orders.
In general whenever the police stops you, it is always a good thing to ask for their identification tag, take note of the number plate of the car, write down the name of the policemen who question or show you a copy of the official notice and always ask a copy of what you are asked to sign.
These could serve to denounce eventual irregularities and/or arrogant behaviour by the police.
In case a military soldier stops you: Military soldiers that are actually present in varied cities serve as agents of public security but do not have the same role as the police. In other words, they can, just as the police and the carabinieri:
1) Ask for your particulars and identity papers
2) Take you to the police headquarters for further identification (detention for identification)
3) Body search you and search your car ONLY under the following circumstances:
a) Exceptional emergency cases whereby a judge cannot intervene;
b) Unjustifiable behaviour of a person that calls for the verification of the presence of arms or explosives.
Apart from these three cases, THEY CANNOT body search you and a search is against the law. In any case, they must write down an official notice and hand you a copy of it. (art. 4 L.22nd May 1975, n.152)
Municipal police officers are public officers who may also act, although not always, as reserve public security officers and perform the duties of the crime investigation or administrative police. They can stop and take you to the police headquarters, the police station or to the military police station for identification. When they do not perform the duties of the crime investigation police they CANNOT:
- Oblige you to make declarations or anything else
- Take you with force to the police station (CID)
Inspect your house, caravan, tent or inside your car unless explicitly authorised by the law (art. 13, last paragraph)
The Security Measures - “pacchetto sicurezza” have also extended Mayors’ powers who can now:
- Report any foreigner that does not have a permit of stay to police authorities and prompt them to issue an expulsion order (art. 6 leg. decree n.92/08 converted to Law n. 125/08 so-called security decree – decreto sicurezza);
- Intervene in order to “prevent and combat situations that block public viability/traffic or alter public decency in particular, unauthorised or unlawful occupancy of public area”.
Consequently, it is probable that they may issue measures which limit personal liberty (fines to those who drink alcohol on the streets or those who meet in groups in some areas, etc.) and that the municipal police will increase raids against hawkers.
In case a bus ticket inspector stops you:
According to art. 357 of the penal code, a bus ticket inspector is a public officer and can:
- ask your personal particulars (name, surname, etc.) and if you refuse to give them a bus ticket inspector can accuse you as per art. 651 of the penal code (arrest max. 1 month, see above);
- ask you to show your papers ONLY if he/she has to hand you a fine and the record. If you do not show your papers he/she can stop you and call the police in order to proceed with you identification.
It is always better to have a bus ticket on you person.
- Remember, a bus inspector is not a policeman even if he/she sometimes behaves so. If he/she accuses you of a crime, he/she must file a complaint like all ordinary citizens. Unless, as mentioned above, you do not show your papers and he/she has to fine you, a bus ticket inspector cannot use force or other means to oblige you to do something, cannot expel you nor can he/she stop you and hand you over to the police for an expulsion order.
In case of round-ups on buses, that is when bus ticket inspectors get on the bus with the police or traffic agents and ask for tickets and papers in particular to foreigners, you can denounce such actions to the police authorities as they are based on ethnic or national origin. This could be considered discriminatory. It is therefore important to:
- Document what is happening (take pictures, film). If there are any police vans, document how many there are and how many people are forced out of the bus and put on the police vans; take down the number plate;
- Find people on the spot willing to testify, both foreign citizens who experience such round-ups and Italians present on the bus;
- Identify what force the police agents belong to (state police, carabinieri, municipal police/traffic agents)
- Foreign citizens taken into police vans must show their passport/residence permit unless they have a justified reason (lost, stolen or provisionally retained by others, etc.) for not doing so. The police can take a foreign citizen to the police headquarters in case of doubt over his/her identity, which in any case, cannot be based only on his/her ethnic and national origin. It is therefore wise to demand explanations of the control and why the person is taken to the police headquarters immediately.
SEARCHING AND ACCESS IN A HOUSE
Generally the police cannot body search a person nor enter a private house or private premises without a search warrant issued by a judge. If they do have the search warrant, a person has the right to:
- have a copy of the search warrant issued by the judge before the searching starts;
- the presence of a lawyer or a reliable person (easily on hand) during the search;
A person or private premises can be searched without a search warrant only in the following cases:
1) While a crime is being committed, a jailbreak (flee) or when a preventive detention order, a detention order or an arrest order (art 352 c.p.p.) has to be executed;
2) People, premises, cars, luggage and personal belongings can be searched by the crime investigation police (state police, carabinieri, customs officers, foresters) to prevent or restrain drug trafficking (art. 103 presidential decree n. 309/1990);
3) Houses, public and private premises, single or blocks of buildings can be searched by the crime investigation police if it has well-grounded suspicions on the presence of weapons, munitions or explosives, a person hiding away from the police, an escapee linked to crimes committed by criminal organisations like the Mafia, drug trafficking or terrorism (art. 41 tulps and art. 25 leg. decree 8.6.1992, n.306);
The new security measures provide that, in exceptional and urgent cases, the army can carry out on-the-spot search on people whose behaviour and presence in a given time and place are unjustifiable, in order to verify the presence of weapons and explosives; they can also search means of transportation. Even in this case:
- They must give you a copy of the search record and even if nothing was seized they must indicate the operations undertaken, the reason for carrying out a search without an authorisation from a judge, names and qualification of the agents who carried out the search. If you cannot read, you are entitled to have an interpreter and always ensure they write down that you do not speak Italian;
- In case of seizure of objects and documents they must be specifically indicated in the search record.
Searches CANNOT be carried out in a house or in closed areas in the immediate vicinity before seven o’clock and after eight o’clock. They can be carried out only in urgent cases with a search warrant issued by a judge. (art. 251 c.p.p.)
NOTE: a new provision of the Security measures provides “imprisonment from 6 months to three years for “whomsoever for a valuable consideration, derives unlawful benefit by renting or providing accommodation in his/her building to a foreigner, devoid of a residence permit”. The building can be confiscated unless the owner is unaware of the situation.
NOTE: Always ask why the search is carried out and remember that except for the above-mentioned cases, the police do not have the right to enter your house: for example, if the police present themselves in your house without a search warrant because your neighbours complain of noise and called them, you are not obliged to let them into your house. If the police enter your house with the pretext of searching for weapons or drug and issue an expulsion order, it is illegitimate as this violates art. 14 of the Italian constitution (see Court of Trieste, 24.7.2004) and you can file a petition.
It is always advisable to move in two or in groups and have someone in the house with you so that there are witnesses who can tell of eventual abuses committed by the police force.
[1] Codice di procedura penale – code of criminal procedure
sentence of being an illegal immigrant. In other words, the penalty for committing a crime can increase simply because you do not have a residence permit (art. 61, n.11 bis penal code).
Although the offence of insulting a public officer (oltraggio a pubblico ufficiale) has been decriminalised, the crimes of revilement i.e. insult or offence of a person (article 594 penal code) and obstruction of an officer of the law i.e. when a person violently offers resistance to or threatens a public officer while on duty (art. 337 penal code) are still in force and is often used by police authorities. Public service agents or private surveillance guards who work in train or subway stations and on buses can accuse you of the crime of obstruction for violent reaction or threats against them because they are considered public security reserve officers.
PRACTICAL ADVICEIn case a policeman or a carabiniere stops you:
The police cannot arrest you for the above-mentioned crimes (art. 384 c.p.p[1]); they can only take you to the police headquarters or to a police station for identification. If the agent checking you is in plain clothes, he/she must first identify him/herself (particulars, identification number and police unit) and show his/her identification card. If he/she does not do so, you are not obliged to follow his/her orders.
In general whenever the police stops you, it is always a good thing to ask for their identification tag, take note of the number plate of the car, write down the name of the policemen who question or show you a copy of the official notice and always ask a copy of what you are asked to sign.
These could serve to denounce eventual irregularities and/or arrogant behaviour by the police.
In case a military soldier stops you: Military soldiers that are actually present in varied cities serve as agents of public security but do not have the same role as the police. In other words, they can, just as the police and the carabinieri:
1) Ask for your particulars and identity papers
2) Take you to the police headquarters for further identification (detention for identification)
3) Body search you and search your car ONLY under the following circumstances:
a) Exceptional emergency cases whereby a judge cannot intervene;
b) Unjustifiable behaviour of a person that calls for the verification of the presence of arms or explosives.
Apart from these three cases, THEY CANNOT body search you and a search is against the law. In any case, they must write down an official notice and hand you a copy of it. (art. 4 L.22nd May 1975, n.152)
Municipal police officers are public officers who may also act, although not always, as reserve public security officers and perform the duties of the crime investigation or administrative police. They can stop and take you to the police headquarters, the police station or to the military police station for identification. When they do not perform the duties of the crime investigation police they CANNOT:
- Oblige you to make declarations or anything else
- Take you with force to the police station (CID)
Inspect your house, caravan, tent or inside your car unless explicitly authorised by the law (art. 13, last paragraph)
The Security Measures - “pacchetto sicurezza” have also extended Mayors’ powers who can now:
- Report any foreigner that does not have a permit of stay to police authorities and prompt them to issue an expulsion order (art. 6 leg. decree n.92/08 converted to Law n. 125/08 so-called security decree – decreto sicurezza);
- Intervene in order to “prevent and combat situations that block public viability/traffic or alter public decency in particular, unauthorised or unlawful occupancy of public area”.
Consequently, it is probable that they may issue measures which limit personal liberty (fines to those who drink alcohol on the streets or those who meet in groups in some areas, etc.) and that the municipal police will increase raids against hawkers.
In case a bus ticket inspector stops you:
According to art. 357 of the penal code, a bus ticket inspector is a public officer and can:
- ask your personal particulars (name, surname, etc.) and if you refuse to give them a bus ticket inspector can accuse you as per art. 651 of the penal code (arrest max. 1 month, see above);
- ask you to show your papers ONLY if he/she has to hand you a fine and the record. If you do not show your papers he/she can stop you and call the police in order to proceed with you identification.
It is always better to have a bus ticket on you person.
- Remember, a bus inspector is not a policeman even if he/she sometimes behaves so. If he/she accuses you of a crime, he/she must file a complaint like all ordinary citizens. Unless, as mentioned above, you do not show your papers and he/she has to fine you, a bus ticket inspector cannot use force or other means to oblige you to do something, cannot expel you nor can he/she stop you and hand you over to the police for an expulsion order.
In case of round-ups on buses, that is when bus ticket inspectors get on the bus with the police or traffic agents and ask for tickets and papers in particular to foreigners, you can denounce such actions to the police authorities as they are based on ethnic or national origin. This could be considered discriminatory. It is therefore important to:
- Document what is happening (take pictures, film). If there are any police vans, document how many there are and how many people are forced out of the bus and put on the police vans; take down the number plate;
- Find people on the spot willing to testify, both foreign citizens who experience such round-ups and Italians present on the bus;
- Identify what force the police agents belong to (state police, carabinieri, municipal police/traffic agents)
- Foreign citizens taken into police vans must show their passport/residence permit unless they have a justified reason (lost, stolen or provisionally retained by others, etc.) for not doing so. The police can take a foreign citizen to the police headquarters in case of doubt over his/her identity, which in any case, cannot be based only on his/her ethnic and national origin. It is therefore wise to demand explanations of the control and why the person is taken to the police headquarters immediately.
SEARCHING AND ACCESS IN A HOUSE
Generally the police cannot body search a person nor enter a private house or private premises without a search warrant issued by a judge. If they do have the search warrant, a person has the right to:
- have a copy of the search warrant issued by the judge before the searching starts;
- the presence of a lawyer or a reliable person (easily on hand) during the search;
A person or private premises can be searched without a search warrant only in the following cases:
1) While a crime is being committed, a jailbreak (flee) or when a preventive detention order, a detention order or an arrest order (art 352 c.p.p.) has to be executed;
2) People, premises, cars, luggage and personal belongings can be searched by the crime investigation police (state police, carabinieri, customs officers, foresters) to prevent or restrain drug trafficking (art. 103 presidential decree n. 309/1990);
3) Houses, public and private premises, single or blocks of buildings can be searched by the crime investigation police if it has well-grounded suspicions on the presence of weapons, munitions or explosives, a person hiding away from the police, an escapee linked to crimes committed by criminal organisations like the Mafia, drug trafficking or terrorism (art. 41 tulps and art. 25 leg. decree 8.6.1992, n.306);
The new security measures provide that, in exceptional and urgent cases, the army can carry out on-the-spot search on people whose behaviour and presence in a given time and place are unjustifiable, in order to verify the presence of weapons and explosives; they can also search means of transportation. Even in this case:
- They must give you a copy of the search record and even if nothing was seized they must indicate the operations undertaken, the reason for carrying out a search without an authorisation from a judge, names and qualification of the agents who carried out the search. If you cannot read, you are entitled to have an interpreter and always ensure they write down that you do not speak Italian;
- In case of seizure of objects and documents they must be specifically indicated in the search record.
Searches CANNOT be carried out in a house or in closed areas in the immediate vicinity before seven o’clock and after eight o’clock. They can be carried out only in urgent cases with a search warrant issued by a judge. (art. 251 c.p.p.)
NOTE: a new provision of the Security measures provides “imprisonment from 6 months to three years for “whomsoever for a valuable consideration, derives unlawful benefit by renting or providing accommodation in his/her building to a foreigner, devoid of a residence permit”. The building can be confiscated unless the owner is unaware of the situation.
NOTE: Always ask why the search is carried out and remember that except for the above-mentioned cases, the police do not have the right to enter your house: for example, if the police present themselves in your house without a search warrant because your neighbours complain of noise and called them, you are not obliged to let them into your house. If the police enter your house with the pretext of searching for weapons or drug and issue an expulsion order, it is illegitimate as this violates art. 14 of the Italian constitution (see Court of Trieste, 24.7.2004) and you can file a petition.
It is always advisable to move in two or in groups and have someone in the house with you so that there are witnesses who can tell of eventual abuses committed by the police force.
[1] Codice di procedura penale – code of criminal procedure
[1] TULPS – Testo Unico delle Leggi di Pubblica Sicurezza - Unified Laws on Public security