El ciudadano extracomunitario: de “objeto material” a “tipo de autor” en el control penal de la inmigración

Abstract

The most important problem addressed by Professor Masimo Donini in this article, is to determine the extent to which the distinction between foreigners belonging to the community and the ones who don´t -within the European Community of Nations- implies serious discriminations to the rights of all accused of a crime should have. Given that foreigners are referred only as perpetrators of crimes or as “material” objects of behaviors of others and of disciplines of regulation of migration flows, it seems plausible to assert that equality has experienced a national inclination, a nationalist differentiation constitutionally admissible according to which foreigners do not have a legal and social treatment “equivalent” to that of citizens. Accordingly, the criminal law based in facts has been pushed, adopting instead a criminal law of the excluded: the illegal foreign not belonging to the community is therefore a person to exclude, an “enemy” in the sense that the instrument of punishment is used against him only to exclude him.