La tutela penale del minore migrante in Italia

Abstract

Providing specific criminal protection for migrant minors requires the balance of two legal aspects related to the specific weaknesses of the children; on the one hand, the condition of the minor is characterized by the inadequate experience and specific risks of victimization; on the other hand, the migrant status is related to the lack of social and family references, economic need and diversity of culture. The protection the two mentioned legal aspects requires the enforcement of both different rules to be combined; the application of existing regulations, with the evaluation of the crime’s circumstances, as well as the definition of new criminal figures, who identify some peculiar forms of possible aggression or endangerment, are both useful solutions for the very problematic balance of the two goods. In order to provide effective protection for migrant minors, it is essential to fully implement the principle of “last resort”. Criminal protection, in fact, should only intervene in support and completion of priority preventive administrative safeguards; the administrative protection has to intervene before the commission of serious crimes, which risk compromising, even irremediably, the personality of the vulnerable minor. Otherwise, the administrative action would provide only indirect protection, with no effects on weak persons; an efficient intervention aims to preserve the fragility of the migrant child taking into account the objective risks, often very serious, due to the simultaneous of the two conditions (minor age and migration status). Criminal protection alone would not prevent the maturing of trauma, harassment, exploitation, material and educational deprivation. The law of 7 April 2017, n. 47 «Provisions regarding the protection measures for unaccompanied foreign minors» is significant in this regard.