The individual who has lost his place in the political community risks to drop out of the boundaries of humanity. (H. Arendt)

Foreword
"Boundaries" are to Etienne Balibar "anti-democratic premises of democracy": on the basis of "frontiers", in fact, the fifty-year-long Pax Europea developed, a single market, a currency, in-embryo elements of a public power of a federal type were built, a European Bill of Rights was drafted, an efficient multi-level protection of fundamental rights developed, and a parliamentarian Union created; moreover, many countries were taken from a pre-modern economic state to an active (and often very successful) participation in the greatest integrated system of trading exchanges in the world.

But it is beyond doubt that there have always been very unstable, mobile and elastic barriers, constantly brought into question; the majority of European citizens does not belong to the six founding countries, but to peoples once considered not involved in the original project of limiting national sovereignties. The very fact that negotiations are under way for the entrance of other Balkan countries or Turkey (and perhaps Ukraine too), that the French President has successfully launched the "Euro-Mediterranean" project, that we talk of the future State of Palestine and Israel as privileged partners of the Union, strongly conveys the feeling of "provisionality" of the territorial configuration of this unprecedented institutional body formed in 1957. Without mentioning the tight ties that presently hold together the Council of Europe (comprising as many as 47 States, many of them with strong "Asian" traits) and the EU.

For many of them the secret of Europe's success has been precisely the always-open and unaccomplished character of its integration project, a premise and anticipation for finally putting an end all over the planet to the stale and ever more problematic division in national States. The so-called globalization phenomenon makes the barriers separating the different countries ever more permeable and inconsistent, and shows how powerful the creolization and mixed-blood-generating processes are at a universal level. That is why people everywhere look at the supra-national and post-State public power being consolidated in the old continent as a model for world governance; other areas in the world are willing to group together, establishing common bodies that emulate the "communitarian quadrilateral". No one, however, can deny the "emergencies" that the immigration waves generate, the tensions they cause in the economic and institutional balances in the States that are flooded by them, the difficulty that integration policies have in mediating between the universal nature of rights and the peculiarities to be protected or to be just taken into consideration. Immigration shall no doubt be governed and checked, and the heroic spirit of the "no borders" movements (even though they have solid arguments on their side) or the good intentions alone of "candid souls" (unfortunately quite rare in this case), heirs of the European Enlightenment tradition are not sufficient to face up to the challenge. Policies by all 27 states are needed, making use in a rational and efficient fashion, even in such a thorny field, of those competences the Union is already endowed with and have long been "communitized" due to their intimate connection with the oldest tenets of the "European juridical order". In 2005 we certainly saw in the Netherlands and maybe in France also, with regard to the "no" to the old Constitutional Treaty, how big an alarm the idea (often unproven) of "mass" immigration processes out of control and not checked can produce in the public opinion. There is not only the risk of arousing ancestral fears, breeding ground of xenophobic and nationalist movements, but also a terrible "security-claiming" competition among States to drive those who Hannah Arendt called "denizens" (non-citizens, deprived of rights) to look for other places.

However, it looks certain that the Union cannot adopt whatever type of policy, even in contrast not only to its best traditions of tolerance, to the ratio essendi of the European construction as the answer to the Nazi catastrophe of the years 1930-1940¹, but also to those juridical principles embedded in our common constitutional traditions and in the two European Courts' decisions, in some cases even inherited from the ancient "ius gentium" of Greek-Roman origin.

The so-called "Return" Directive approved in Brussels on June 18 after an agreement, defined as "a compromise", between the European Parliament and the Council, on "returning illegally staying third-country nationals", does not look consistent with such traditions and, despite some lukewarm improvements wrought by the Parliament, it has rightly been named "the directive of shame". The Parliament, in the premise to the deliberation emending its text², states that "this Directive respects the fundamental rights and observes the principles recognized in particular by the Charter of Fundamental Rights of the European Union" (better known as the Nice Charter), but - as we will say - it is reasonable to have doubts about that statement, and one may hope that the Court of Justice, that has already made reference to the Nice Treaty in eight sentences, will use precisely the European Bill of Rights - independently of the final ratification of the Lisbon Treaty, Art. 6 of the Treaty on European Union that imposes the formal, compulsory validity of the Charter - in order to cancel the most questionable norms of the directive in question.

Dignity trampled on
In official statements, after the issue of the directive, the officials wanted to stress the least disturbing aspect of the new norm; great emphasis was given to the so-called "promotion" of "voluntary departure". In fact, the European law provides that the illegal immigrant is given the chance to leave voluntarily the country within an "appropriate" period ranging between 7 and 30 days, and that this possibility must be made known once the repatriation decision has been taken. But this is not at all a right: in case of risk of absconding or dangerous behavior of the subject, this kind concession may be omitted or anyway revoked at any moment, or be subject to precautionary measures, among which the incredible payment of caution money. The term is so drastic that one may think that in actual fact it will be just a theoretical case, as we cannot believe that somebody will get to the point of requiring from a "boat people" survivor on the Sicilian coast a payment at the Post Office while awaiting to start his journey back (with which means?).

After the edifying Art. 6, the following Art. 7 takes care to go back to the "aim" of the initiative that the Union's popular-suffrage body ended up voting: the use of coercive measures is authorized for expelling the third-country citizen who "resists removal" (having added "as a last resort" is deprived of any special meaning because the only practicable alternative is the voluntary departure that was mentioned above). The word "resistance" is clearly used in a different sense than normally understood, that seems to imply an active behavior of opposition, while in the great majority of cases those measures will be applied to individuals who are not in a position to take the first jet and go back to the countries they have been driven to leave to survive. European legislators, very kind of them, found it suitable to add that "the coercive measures shall be proportional and shall not exceed reasonable force. Measures shall be implemented as provided for in the national legislation, in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned". Opportunities are offered to eventual interventions by the Court of Justice (and perhaps by that of Strasbourg), but for sure they could have done better; the States' discretion in the use of force remains too large, no criteria are given but the very general ones of the respect of dignity and personal safety³. The expression "in accordance with fundamental rights" is highly inappropriate (fundamental rights are observed or are not infringed). Art. 8 takes care of offering some more precautions for the removal of minors, including that they "will be returned to a member of his/her family" or "adequate reception facilities in the state of return", on the functioning of which - in countries where State structures are almost non-existent - one can have strong reservations. The return decision (Art.9) is an act in written form and motivated in fact and in law, but information may be restricted "in order to safeguard national security, defence, public security and the prevention, investigation, detection and prosecution of criminal offences"; against the decision "effective remedies" are allowed (Art.13) "before a competent judicial or administrative authority or a competent body composed of members who are impartial" [sic], which can temporarily suspend its enforcement. Moreover, the concerned person can obtain legal advice, free of charge on request. During the period for voluntary departure granted in accordance with Article 7, family unity with family members present in the territory is maintained; minors are granted access to the basic education system, and emergency health care and essential treatment of illness is provided; this last sinister provision seems intended to avoid that a "full" treatment of illness be an obstacle to a speedy repatriation.

But the core of the new discipline is no doubt the regime of "detention... in order to prepare return" (Art.14 and following): the third-country national for whom there is the risk of absconding or who "avoids or hampers the preparation of return or the removal process" may be kept in detention by administrative or judicial order for a period which may not exceed six months. When detention has been ordered by administrative authorities, a judicial review is possible. But that already abnormal period may be extended by national legislation to as many as 18 months "in cases where regardless of all their reasonable efforts the removal operation is likely to last longer due to a lack of co-operation by the third-country national concerned, or due to delays in obtaining necessary documentation from third countries". In sum, one year and a half of privation of personal freedom which is carried out "as a rule" in specialized temporary-detention facilities but, if not possible, even in penitentiaries tout court. To put a limit to a prison-type detention, it is foreseen that illegal immigrants shall be separated from ordinary prisoners, and families shall be provided with separate accommodation (but this provision too may be derogated from in emergency situations). Competent NGOs and international bodies shall have the possibility to visit detention facilities, but visits may be subject to authorization; nothing is added on the subject of penitentiaries. Those are the norms that most visibly violate the principles of personal dignity and respect of private and family life, that the directive asserts not to trample on. It is indeed a regime of absolute privation of freedom, resembling in all aspects a state of detention, and in fact it can be carried out in penitentiaries for an abnormal and unreasonable period of time. The directive does not give any indication about the treatment regime, therefore leaves total discretion to the States, a very questionable choice because, while pleno iure prisoners are generally protected by well-defined norms (subject also to the screening of the Court of Strasbourg), for immigrants there looks to be no rule whatsoever. Thus, there is the risk of putting in jeopardy the fundamental principles of modern right, like that of the non-punishability of objectively non-offensive behaviors (offensive are those behaviors that willfully or culpably impair interests and goods of juridical third parties) or of situations of mere personal status. The immigrant is detained up to one year and a half together with individuals for whom the commission of a crime has been ascertained or is being ascertained, with no indication about his treatment as a citizen of States not belonging to the Union (one could add: with a judgment of presumed dangerousness), in the fallacious hope that the threat of such a long state of detention (with no rules) will act as a deterrent for the many guiltless, distressed people arriving at the Union's borders. In fact, even before being a violation of several articles of the European Charter of human rights, of the Nice Charter⁴ and of many decisions passed on this matter by the two supra-national Courts, the regression we are witnessing seems to put at stake the "sacred" right to (and its related duty of) hospitality that constituted the core of the ancient "right of the peoples (ius gentium)", asserting that a stranger shall not be considered and treated as a criminal, as a "presumed enemy", with reference only to his status as non-citizen of the State where he happens to be. Precisely the same European Union that for decades has been promoting in the field of cooperation-to-development policies the respect of human rights, requiring the third-world countries asking for subsidies to underwrite the so-called human rights clauses, goes as far as considering the citizens of those countries (once they have crossed the EU frontiers) the same as dangerous criminals, only for the fact that they tried to flee from the very conditions that the EU proclaims it wants to combat to their roots. On the other hand, many member States have, because of their shameful colonial past, a "special responsibility", to quote Habermas, towards the citizens of their former possessions, a responsibility they cannot shake off by simply enclosing themselves into the entrenched territory of a "fortress Europe".

In conclusion, this is a very sad page in continental history, of which the Strasbourg Parliament has made itself an accomplice too easily, wringing only some marginal norms on legal advice for individuals subject to a return decision and detained as criminals⁵. The "living" European constitutional system has contemplated for a long time "a judge in Berlin": but in order for a significant amendment to this text from a jurisprudential point of view to really be in a position to impose itself, it looks absolutely necessary that beforehand there be a clear critical stand taken by all the liberal, democratic and guarantee-friendly forces of the old continent, which brings forward once again the fundamental values of the European project.


1 On these roots, see the double special issue of German law journal vol. 2 and 3/2005: Confronting memories: European "bitter experiences" and the constitutional process (C. Joerges, P. Blocker and C. Engert eds.), and European integration in the shadow of Europe's darker pasts (D. Augenstein ed.); in a nice Adornian style, see C. Joerges, Working through bitter experiences towards constitutionalism. A critique of the disregard for history in European constitutional theory, WP EUI, n.15/2005, and also Dario Castiglione's reply: Comment on Joerges: are those who forget the past doomed to repeat its mistakes?, both in Law and democracy in the post-national Union, Arena report, n.1/2006, E. O.Eriksen, C. Joerges and F. Rödl eds.
2 Consideration n. 20.
3 The principle of non refoulment is confirmed in the case of refugees, albeit in general the norms on the right of asylum and on refugee rights are out of the directive's application domain.
4 In the first place there is to mention Art. 1 of the Charter: the protection of personal dignity.
5 Those improvements are not sufficient at all to overturn the directive's sense, that for illegal immigrants contemplates in essence repatriation decisions only, keeping them in a semi-detention state and expulsion with the use of force. Defence guarantees find unfortunately a very limited application space, although certainly their inclusion in the text has made a little more guarantee-friendly the Council's original proposal.