Daria Pesce
The
emergence that is taking place all over the national territory and concerning
the entrance in Italy of not belonging to the European Community people focus
the attention on the mere legislative aspect of the matter, that is the regularisation
of these immigrates. Recent crime news facts has had a strong impact over
the public opinion and so has reopened the discussion, lately weakened, about
whether it is the necessity or not to put a limit to the entrance in our country
of citizens not belonging to the European Union. To the supporters of a more
rigid immigration policy face the supporters of an integration that is not
impossible to reach, to foster with multilevel measures. In this context the
employment topic - already essential as regards to our country-fellows - takes
a meaningful importance since the job is an essential condition for the stay
in Italy. The consolidation act of the disposals concerning the immigration
discipline, introduced by the legislative decree n. 286 
July
25th 1998, gives a detailed discipline concerning employment relationship
between Italian State citizens and foreigners. Such normative resumes, integrates
and meanly expressly abrogates the previous legislation. In the case under
discussion the articles of the law of main interest concern first the 'obligations
of the host and the employer “; art. 7 of the legislative decree sanctions
expressly that whoever hires for any reason (the foreigner) must, within 48
hours, notice the fact on write to the local authority of Police force. The
follow art. 12 (disposals against the clandestine immigrations) at the first
paragraph sanctions that 'whoever performances practices directed to foster
the entrance of foreigners in the state territory violating the norms of this
consolidation act is punished to till three years imprisonment and a till
three millions fine”, and at the fifth paragraph “whoever draws unjustified 
profit
from the illegality condition of the foreigner, or who, within the practises
punished according to the contents of the present article, fosters the stay
of the foreigner in the territory of the State, violating the norms of the
present consolidation act, is punished to imprisonment till four years and
a till thirty millions fine”. The employer's violation finds instead its autonomy
discipline in another article of the consolidation act : the art. 22 at the
tenth paragraph, foresees the arrest from three months to a year or a fine
from two million till six millions for the employer who hires foreign workers,
without residence permit “. Such disposals even not referring directly to
behaviours of whom contracts not belonging to the European Community persons
as self-workers, seem can be applied extensively also to these cases, specially
whereas is taken into account the ratio of the new consolidation act, clearly
directed to discourage any practice abstractly able to foster the clandestine
immigration. 
Unfortunately
the lack of jurisprudence about this matter does not help to concretely configure
the punishable case in point, nevertheless, at first examination, in case
the employer does not perform the obligation of notice at the hereabove mentioned
art. 7, he could be deemed responsible of 'violation of the norms of the consolidation
act “ and then punished according to the next art. 12. So I deem that the
contractor who contracts self-workers, even with a commission contract, a
foreigner without residence permit, could perform the behaviour, punished
by art. 12 of consolidation act, of whom draws 'unjustified profit' coming
from the 'illegality condition of the foreigner “, and so falling in the case
in point, foreseen and punished by art. 22 of the legislative decree, established
for the employer but also extendible to other hypothesis.
Daria Pesce
Mensile di scienza medica e attualita`