ITALY - British Institute of International and Comparative Law

May 2013
IMMIGRATION DETENTION AND THE RULE OF LAW
NATIONAL REPORT: ITALY
Dr Elena Consiglio, University of Palermo
Table of contents
I. The decision to detain irregular migrants and asylum seekers
1.The law in force: primary and secondary legislation
2.The initial decision to detain: cases and issuing authorities
2.1. Pre-removal detention
2.2. Detention in the case of deferred push back (Article 10 (2) TU)
2.3. Other cases
2.4 Selected case-law
3. Administrative detention, constitutional law and European law
4. Detention of minors
5. The detention of persons requesting international protection
5.1. Accelerated procedure: grounds
6. The renewal/review of the decision to detain: cases, standards and maximum duration
of detention
6.1. Selected case-law
7. Administrative discretion
8. Is administrative detention effective? Proposals for reform
II. Procedural guarantees
1.
2.
3.
4.
5.
6.
7.
8.
The TCNs’ rights in the Constitution and the law
Right to be informed of the reasons for arrest or detention
Judicial control and confirmation of the detention order within 48 hours
Right to personal interview
Periodic review of the detention order and of appropriateness of detention
Right to take proceedings before a court/right to appeal
Right to legal assistance and interpretation
Right to compensation for unlawful arbitrary detention
III. Alternatives to administrative detention
1.
2.
3.
4.
5.
6.
7.
8.
Legislation in force
European Law
Italian law: voluntary repatriation
Contrast between European and Italian Law
Voluntary assisted repatriation
Non-custodial measures and their judicial validation
Foglio di via
Residence permit for asylum seekers
1
IV. Detention of irregular migrants and asylum seekers in a state of emergency
1.State of emergency: definition and examples
2.CIET (Temporary centres for identification expulsion): the derogation to legal
requirements concerning the decision to detain
3.Access restrictions to detention centres
4.Less strict application of the rules concerning procedural guarantees for the migrant
V. Conditions of detention of migrants and asylum seekers
1. Limitations of the right to freedom of person and freedom of movement
1.1. Open centers
Lampedusa
Centri di accoglienza per i richiedenti asilo
Reception of asylum seekers and refugees
1.2. Closed centers
1.2.1. Authorization to leave the center: authorities’ discretion
2. Standard detention conditions
3. Access to information, translation and interpretation services4. Access to lawyers,
telephone, and to relatives
5. Access to healthcare: medical services
6. Centers’ regulation and management
6.1. Independent monitoring and inspection
7. Selected case-law
2
List of abbreviations
CDA Centro di Accoglienza (Reception centre)
CARA Centro di Accoglienza per i Richiedenti Asilo (Reception centre for asylum seekers)
CIE Centro di Identificazione ed Espulsione (Centre for identification and expulsion) CPT
Centro di Permanenza Temporanea (Centre for temporary permanence)
CPSA Centro di Primo Soccorso ed Accoglienza (Centre for first rescue and reception)
DL Decreto legge (law decree)
D.lgs. Decreto legilsativo (legislative decree)
DPCM Decreto del Presidente del Consiglio dei Ministri (decree by the President of the
Council of Ministers)
DPR Decreto del Presidente della Repubblica (decree by the President of the Republic)
SPRAR Sitema di Protezione ed Accoglienza per i Richiedenti Asilo
TU Testo Unico (a law which regulates a specific matter in a comprehensive way)
TUI Testo Unico Immigrazione (D.lgs No 286/1998, regulating immigration and the the
status of foreign nationals)
TCN Third Country National
Glossary of terms
Commissione Territoriale (Territorial Commission): the commission responsible for the
first decision on requests for international protection.
Corte Costituzionale: Constitutional Court
Corte di Appello: the court that hears the appeals after the first trial.
Corte di Cassazione: the supreme jurisdiction on legal matters. It is not competent to
adjudicate the merits of the case.
Decreto Legge (DL): the decree issued by the government having force of law for a limited
time (60 days) after which it is void if it is not validated by the Parliament. The Parliament
has the power to turn it into a law.
Decreto Legislativo: a law issued by the government on the basis and within the limits of a
delegation law issued by the Parliament.
3
Giudice di pace: an honorary judge (inferior court) with jurisdiction on cases worth a small
amount of money.
Guardia di Finanza: Tax and customs police.
Prefetto: the officer representing the central government at the provincial level. It controls
local administrative organs and protects public order.
Prefettura: office of the Prefetto.
Pretore: it was a single judge with jurisdiction on controversies worth a small amount of
money. On 1998 it was substitute by the Giudice di pace.
Questore: Chief of Police under the Ministry of the Interior.
Questura: the of the Questore, Provincial Police Directorates
Removal: the enforcement of the obligation to return, namely the physical transportation out
of the Member State.
Return Decision: an administrative or judicial decision or act, stating or declaring the stay of
a third-country national to be illegal and imposing or stating an obligation to return.
Third Country National: any person who is not a citizen of the Union within the meaning of
Article 17(1)of the Treaty and who is not a person enjoying the Community right of free
movement, as defined in Article 2(5) of the Schengen Borders Code. (This is the definition
found in Article 3(1)).
4
_1_The law in force: primary and secondary legislation
Administrative detention
The first Italian law on immigration was promulgated in 1986 (L. No 943/1986). It regulated
access to work and welfare for foreign nationals, and disciplined their working relationships.
A few years later, the D.L. No 416 of 30 December 1989, converted into the L. No 39 of 28
February 1990 (also called 'Martelli' law) introduced norms on asylum, entry and stay of third
country nationals on the Italian territory and disciplined the process for the regularization of
the legal status of foreigners and stateless persons already living in Italy. The authority to
expel irregular migrants was attributed to the prefetto, the representative of the central
government at the provincial level. The expulsion was normally carried out by ordering the
irregular migrant to leave the Italian territory. Only in cases where the person failed to
voluntarily leave the country, was the expulsion carried out by forcibly accompanying the
person at the border.
In 1998 the law established for the first time detention facilities for irregular migrants, called
Centri di Permanenza Temporanea (Centres of Temporary Permanence, hereinafter ‘CPT’)
(L. No 40 of 6 March 1998, also called ‘Turco-Napolitano' law). An irregular migrant subject
to an expulsion decree could be detained in one of those facilities 'for the time strictly
necessary' if it was not possible to carry out immediately either the expulsion through
accompanying the person at the border, or the respingimento (push back), due to the need to
rescue the person, to carry out further checks on the person's identity or nationality, to acquire
travel documents or to the fact that no available carrier or other suitable mean of
transportation was available1. The questore, the head of Questura (the agency of the Ministry
of the Interior with competence on public order and public security at the provincial level),
was attributed the power to issue the first decision to detain by decree. This measure, duly
validated by the judicial authority, allowed detention of the person for 20 days; an extension
of a further 10 days could be allowed 'when the elimination of the obstacles impeding the
repatriation or the removal was imminent'2.
1
The text of the disposition in Italian: ‘Quando non e' possibile eseguire con immediatezza l'espulsione
mediante accompagnamento alla frontiera, ovvero il respingimento, perche' occorre procedere al soccorso dello
straniero, ad accertamenti supplementari in ordine alla sua identita' o nazionalita', ovvero all'acquisizione di
documenti per il viaggio, ovvero per l'indisponibilita' di vettore o altro mezzo di trasporto idoneo, il questore
dispone che lo straniero sia trattenuto per il tempo strettamente necessario presso il centro di permanenza
temporanea e assistenza piu' vicino, tra quelli individuati o costituiti con decreto del ministro dell'Interno, di
concerto con i ministri per la Solidarieta' sociale e del Tesoro.’ (Article 12 (1) L. No 40/1998).
2
The text of the disposition in ‘La convalida comporta la permanenza nel centro per un periodo di complessivi
venti giorni. Su richiesta del questore, il pretore puo' prorogare il termine sino a un massimo di ulteriori dieci
giorni, qualora sia imminente l'eliminazione dell'impedimento all'espulsione o al respingimento. Anche prima di
tale termine, il questore esegue l'espulsione o il respingimento non appena e' possibile, dandone comunicazione
senza ritardo al pretore.’ (Article 12 (5) L. No 40/1998).
5
The D.lgs. No 286 of 1998 (also called Testo Unico delle disposizioni concernenti la
disciplina dell'immigrazione e norme sulla condizione dello straniero, Law on immigration
and on the condition of the foreign person, hereinafter 'TU'), implemented by the regulation
D.p.r. 394/1999, collected the whole discipline on immigration into one single piece of
legislation by rationalizing, organizing and amending the existing dispositions. The TU
originally provided the duration of 20 days for the first decision to detain. Detention could be
extended once for further 20 days. This law has been repeatedly amended since 1998. The
consolidated version in force contains the basic dispositions on administrative detention of
irregular migrants, which are applicable to the case of asylum-seekers' detention provided by
D.lgs. 25/2008 (see § 2-2.3 and 5 below).
The L. No 189/2002 (also called 'Bossi-Fini' law) significantly amended immigration
legislation. The Bossi-Fini law reformed the repatriation system providing that the normal
way to carry out the expulsion was by forcibly accompanying the person at the border. In
such cases, administrative detention with a view of repatriation became obligatory rather than
discretional, as it was before, unless no places were available in the detention centres. The
same law extended the duration of detention to a maximum of 60 days: 30 days following the
first decision to detain validated by the judicial authority, with the possibility of one
extension for further 30 days ‘when the verification on the identity or the nationality of the
person is seriously difficult’ and when ‘serious difficulties arise in obtaining travel
documents’3. Under the Bossi-Fini law, when the maximum term of detention expired, the
foreign national had to be released and the questore ordered this person to leave the country
within five days4 (foglio di via, order to leave the country)5. If the foreign national already
reached by a foglio di via was then found again on the Italian territory, this person was liable
of a crime punishable by detention from 6 months up to one year.
The Bossi-Fini law established the cases in which asylum seekers could be detained in a
detention centre or retained in a Centro di Accoglienza per Richiedenti Asilo (Centre for the
Reception for Asylum Seekers, hereinafter 'CARA') (see below § 5) while their asylum
request was pending.
3
Article 13 (1) of L. No 189/2002 modified article 14 (5) TU as follows: ‘La convalida comporta la permanenza
nel centro per un periodo di complessivi trenta giorni. Qualora l’accertamento dell’identità e della nazionalità,
ovvero l’acquisizione di documenti per il viaggio presenti gravi difficoltà, il giudice, su richiesta del questore,
può prorogare il termine di ulteriori trenta giorni. Anche prima di tale termine, il questore esegue l’espulsione o
il respingimento, dandone comunicazione senza ritardo al giudice. ’
4
This term is now seven days (Article 14 (5-bis) TU).
5
Article 14 (5-bis) as amended by article 13 (1) (b) of the law No 189/2002, in the original language states:
‘Quando non sia stato possibile trattenere lo straniero presso un centro di permanenza temporanea, ovvero siano
trascorsi i termini di permanenza senza aver eseguito l’espulsione o il respingimento, il questore ordina allo
straniero di lasciare il territorio dello Stato entro il termine di cinque giorni. L’ordine è dato con provvedimento
scritto, recante l’indicazione delle conseguenze penali della sua trasgressione.’
6
The D. L. No 92 of 23 May 2008, converted into the L. No 125 of 24 July 2008 changed the
administrative detention centres' name from CPT into Centri di Identificazione ed Espulsione,
(Centres for Identification and Expulsions, hereinafter ‘CIE’).
The L. No 94 of 15 July 2009 (also called 'pacchetto sicurezza') extended the maximum
length of detention to 180 days6. The first decision to detain allowed detention for 30 days,
with the possibility of one further extension for 30 days. When this second term expired, the
questore could request a further extension for 60 days. The grounds for requesting a second
extension of detention were two, and in particular: the lack of cooperation with the authorities
with regards to the repatriation procedures by the detainee and the delay in receiving the
documentation from the detainee’s country of origin. Lastly, the questore could request one
more extension for further 60 days on the ground that the obstacles which justified the second
extension persisted.7
The D. L. No 89 of 23 June 2011, which transposes Directive 115/2008/EC into the Italian
legal system, converted into L. No 129 of 2 August 2011 extended the maximum duration of
detention up to 18 months8.
6
The text of the relevant disposition in Italian: ‘all'articolo 14, comma 5, sono aggiunti, in fine, i seguenti
periodi: «Trascorso tale termine, in caso di mancata cooperazione al rimpatrio del cittadino del Paese terzo
interessato o di ritardi nell'ottenimento della necessaria documentazione dai Paesi terzi, il questore può chiedere
al giudice di pace la proroga del trattenimento per un periodo ulteriore di sessanta giorni. Qualora non sia
possibile procedere all'espulsione in quanto, nonostante che sia stato compiuto ogni ragionevole sforzo,
persistono le condizioni di cui al periodo precedente, il questore può chiedere al giudice un'ulteriore proroga di
sessanta giorni. Il periodo massimo complessivo di trattenimento non può essere superiore a centottanta giorni.
Il questore, in ogni caso, può eseguire l'espulsione e il respingimento anche prima della scadenza del termine
prorogato, dandone comunicazione senza ritardo al giudice di pace»;’Article 1 (22) (l) L. No 94/2009
7
See the wording of the law in the note above. Paolo Bonetti, La proroga del trattenimento ed I reati di ingresso
o permanenza irregolare nel sistema del diritto degli stranieri; profili costituzionali e rapporti con la direttiva
comunitaria sui rimpatri, in Diritto, Immigrazione e Cittadinanza, No 4/2009, pp85-128, at 90. Paolo Bonetti
notes that in both cases a further extension of 30 days is possible theoretically, if the TCN submits a request for
international protection, in order to allow the processing of the request (article 21(2) D. lgs. 25/2008) In this
case the person should not be accompanied at the border pending the proceeding, but remains in detention. If the
request is approved the person must be released, If the request for international protection is rejected the person
must stay in detention for further 15 days (term for appealing the decision of the Territorial Commission, which
is the competent organ to examine the request). If an appeal is filed against the negative decision on the request
of international protection and no humanitarian protection is granted, and a request to suspend the effects of the
negative decision (repatriation) is filed as well, the person stays in detention until the tribunal decides whether to
suspend the effect of the appealed decision or not. The tribunal must decide within 5 days. (art 32 (4) and art 35
(7) D.lgs No 25/2008, as amended by D.lgs 159/2008).
8
The law currently in force regarding the duration of detention, including its maximum lenght, states: ‘La
convalida comporta la permanenza nel centro per un periodo di complessivi trenta giorni. Qualora
l'accertamento dell'identità e della nazionalità ovvero l'acquisizione di documenti per il viaggio presenti gravi
difficoltà, il giudice, su richiesta del questore, può prorogare il termine di ulteriori trenta giorni. Anche prima di
tale termine, il questore esegue l'espulsione o il respingimento, dandone comunicazione senza ritardo al giudice.
Trascorso tale termine, qualora permangano le condizioni indicate al comma 1, il questore può chiedere al
giudice di pace la proroga del trattenimento per un periodo ulteriore di sessanta giorni. Qualora persistono le
condizioni di cui al quarto periodo, il questore può chiedere al giudice un'ulteriore proroga di sessanta giorni. Il
periodo massimo complessivo di trattenimento non può essere superiore a centottanta giorni. Qualora non sia
7
Judicial Review
In 2004, the power to judicially validate administrative measures such as expulsion and
detention orders was transferred from the Tribunal (single judge) to the giudice di pace (judge
of the peace), which is an honorary judge (L. No 271/2004). While maintaining the guarantee
of a third and impartial control upon administrative measures, this transfer of competence to
the giudice di pace generally watered down the guarantees for irregular migrants vis-à-vis the
administration. In fact, the giudice di pace mostly exercises conciliatory functions. The
control on administrative measures which may potentially infringe upon fundamental rights
such as freedom of the person, guaranteed to everyone (including foreigners) by Italian
Constitution and ordinary law, would be more appropriately carried out by a non-honorary
judge9. The same law increased the penalty for the crime of violation of the questore's order
to leave the country, elevating the maximum from one to four years, and listed it as a crime
for which it was possible to execute the arrest in flagrancy. The Corte costituzionale
(Constitutional court, supreme jurisdiction entrusted with the power to control that ordinary
law conforms with superior constitutional norms and principles) declared null and void the
disposition providing the obligation to arrest the person in flagrancy in the case of violation
of the order by the questore to leave the country, as it was in contrast with the Constitution
(case No 223/2004). The Corte costituzionale held that it was unreasonable to provide the
obligation to arrest in flagrancy the suspect of this crime, because the crime was qualified as
'contravvenzione' (fine), not as ‘delict’.
Right to Asylum
The Italian Constitution recognizes and protects the right of asylum (Article 10 (3) of the
Italian Constitution). This right offers a broader protection compared to the one offered to
asylum-seekers and refugees by the Geneva Convention and by European law. However, this
right was never fully regulated by law. Before the EU asylum acquis was transposed into the
Italian legal system, the legislation on asylum was rather incomplete10. At present, the main
stato possibile procedere all'allontanamento, nonostante sia stato compiuto ogni ragionevole sforzo, a causa
della mancata cooperazione al rimpatrio del cittadino del Paese terzo interessato o di ritardi nell'ottenimento
della necessaria documentazione dai Paesi terzi, il questore può chiedere al giudice di pace la proroga del
trattenimento, di volta in volta, per periodi non superiori a sessanta giorni, fino ad un termine massimo di
ulteriori dodici mesi. Il questore, in ogni caso, può eseguire l'espulsione e il respingimento anche prima della
scadenza del termine prorogato, dandone comunicazione senza ritardo al giudice di pace.’ (Art. 14(5) TU)
9
Iside Gjerji, ‘Il Trattenimento dello Straniero in attesa di espulsione: una ‘Terra di nessuno’ tra ordine
giuridico e fatto poilitico, p. 26; available at http://www.costituzionalismo.it/docs/trattenimentostraniero.pdf
(accessed 18 April 2013); see also Paolo Bonetti, 'La proroga del trattenimento e i reati di ingresso o
permanenza irregolare nel sistema del diritto degli stranieri: profili costituzionali e rapporti con la direttiva
comunitaria sui rimpatri.' in Diritto, immigrazione e cittadinanza, 2009, No 4, pp. 85-128, at 96.
10
L. No 39 of 28 February 1990, ‘Conversion into law, with amendments, of D.L. No 416 of 30 December 1989,
8
pieces of legislation regulating the procedure, the requirements, the treatment and the
guarantees for persons requesting international protection are the following:
- D.lgs. No 140 of 30 May 2005 (implementing Directive 2003/9/EC laying down minimum
standards for the reception of asylum seekers);
- D.lgs. No 251 of 19 November 2007 (implementing Directive 2004/83/EC on minimum
standards for the qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the content of the
protection granted);
- D.lgs. No 25 of 28 January 2008 (implementing Directive 2005/85/EC of 1 December 2005
on minimum standards on procedures in Member States for granting and withdrawing refugee
status), which was later modified and integrated by D.lgs. No 159 of 3 October 2008 and by
D.lgs No 150 of 11 September 2011. There is no regulation in place, implementing D.lgs. No
25/2008.
- D.L. No 89 of 23 June 2011 converted into the L. No 129 of 2 August 2011 (implementing
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008
on common standards and procedures in Member States for returning illegally staying thirdcountry nationals).
Asylum seekers are detained in the cases indicated in article 21 of D.lgs 25/2008; the
procedure is the same provided for the detention of irregular migrants, according to article 14
(1) TU (see § 5 below).
_2_The initial decision to detain: cases and issuing authorities
Under EU law, administrative detention can only be disposed when the person concerned is
subject to return procedures in order to prepare the return and/or carry out the removal
process. The circumstances indicated in the Directive 2008/115/EC (hereinafter: the “Returns
Directive”) in which detention can be ordered are: if there is a risk of absconding; if the third
country national (from now on TCN) concerned avoids or hampers the preparation of return
or the removal process (Article 14 (1) (a) and (b) Returns Directive). EU law requires that
detention is for as short period as possible. Moreover, it expressly states that ‘detention shall
be (…) only maintained as long as removal arrangements are in progress and executed with
due diligence (Article 14 (1) Returns Directive). Administrative detention is legitimate under
EU law when the conditions stated above are fulfilled. If one of those conditions ceases, the
TCN concerned should no longer be held in detention (Art 14 (5) Returns Directive).
Moreover, detention is only legitimate when it is necessary to ensure successful removal (Art
14 (5) Returns Directive), that is, when is effective, and when it is not possible to achieve the
same rsut with less cohercive measures.
In his report on the human rights of migrants11, the special rapporteur François Crepeau
providing urgent dispositions on political asylum, entrance and residence of third-country national and
regularization of third-country national and stateless persons present on the Italian territory. Disposition on
asylum’;
11
The report is available at: http://www.ohchr.org/EN/Issues/Migration/SRMigrants/Pages/AnnualReports.aspx
(accessed 18 April 2013).
9
recalls that administrative detention of irregular migrants should be prescribed by law and
necessary, reasonable and proportionate to the objectives to be achieved. The same principles
are specified in the Returns Directive. Among the valid objectives of administrative
detention, the special rapporteur indicates the following two: the need to prevent the risk of
someone escaping future legal proceedings or avoiding administrative process, and the need
to prevent the risk from personal and public security. However, detention for security
purposes should only be imposed after careful consideration of the case, in the shortest time
possible and in compliance with all the procedural safeguards.
Under the Council of Europe system, detention is allowed in two cases: to prevent illegal
entry on the territory of the state and when action is taken with the view to deportation or
extradition12.
Under Italian law, the decision to detain a foreign person who does not possess (or has lost)
the legal requisites to stay on the Italian territory is issued by the questore, the police
commissioner. Administrative detention is disposed when it is not possible to carry out the
expulsion by accompanying a person immediately at the border or to push the person back
immediately, due to temporary situations impeding the preparation of repatriation or the
actual execution of removal’13.
The prerequisites for issuance of a detention decree by the administrative authority are
alternatively: a valid expulsion decree issued by the prefetto14 or the measure by which the
questore orders to accompany the person immediately at the border in case of respingimento
differito (or deferred push back) (see § 2.1 and 2.2 below).
Normally, any TCN who comes to the Italian border without a permit to enter or stay, or
lacking a valid passport or other identification document, is sent back unless the prohibition
of refoulement applies in that case (for example, if the person requests international
protection)15. The respingimento differito is the case when the migrant enters the Italian
12
Article 5 (1) (f) of the European Convention on Human Rights: ‘the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken
with a view to deportation or extradition.’
13
The text of the disposition in Italian: ‘Quando non è possibile eseguire con immediatezza l'espulsione
mediante accompagnamento alla frontiera o il respingimento, a causa di situazioni transitorie che ostacolano la
preparazione del rimpatrio o l'effettuazione dell'allontanamento, il questore dispone che lo straniero sia
trattenuto per il tempo strettamente necessario presso il centro di identificazione ed espulsione più vicino, tra
quelli individuati o costituiti con decreto del Ministro dell'interno, di concerto con il Ministro dell'economia e
delle finanze. Tra le situazioni che legittimano il trattenimento rientrano, oltre a quelle indicate all'articolo 13,
comma 4-bis, anche quelle riconducibili alla necessità di prestare soccorso allo straniero o di effettuare
accertamenti supplementari in ordine alla sua identità o nazionalità ovvero di acquisire i documenti per il
viaggio o la disponibilità di un mezzo di trasporto idoneo.’ Article 14 (1) TU.
14
The prefetto issues the expulsion order in the cases provided by articles 13 and 14 (5-bis) TU. Expulsion of a
TCN may also disposed by the Minister of Interior to protect public order and the security of the State according
to Article 13 (1) TU.
15 The
Returns Directive (Article 2) allows Member States to exclude the application of the guarantees provided
10
territory eluding border control and is caught by the police ‘immediately after’ (Article 10 (2)
TU)16. The meaning of the expression ‘immediately after’ is unclear: the law does not specify
the time limit by which the person must be caught by the police after eluding border controls.
In cases of respingimento differito, the questore orders that the person is accompanied at the
border immediately and in this case the person can be detained with a prospect of being
removed. In this case the prerequisite for issuance of the detention order is the order to
immediately accompany the person at the border issued by the questore. These two
hypothesis (pre-removal detention and respingimento differito) will be described in more
details in §2.1 and 2.2 below. There are also other cases in which the questore orders
administrative detention of a foreign person, which will be briefly described in §2.3 below.
The form of the decision to detain is that of a written decree, motivated and translated into a
language understood by the person to which the decree is addressed17. The detention decree
must be either given to the person in his own hands or notified to him in a way respectful of
his privacy. If the person does not understand Italian, the main contents of the measure must
be translated into a language understood by the person, using predisposed forms if necessary.
If the translation is not possible because no translator is available, the measure must be
translated into French, English or Spanish according to the preference expressed by the
person concerned (see Chapters II § 2 and 7 below). The detainee must be informed of the
in this piece of European legislation when the TCN, who does not possess the requirements to enter the country,
is pushed back at the border.
16
Article 10 (2) TU, in the original language: Il respingimento con accompagnamento alla frontiera è altresì
disposto dal questore nei confronti degli stranieri:
a) che entrando nel territorio dello Stato sottraendoli ai controlli di frontiera, sono fermati all'ingresso o subito
dopo;
b) che, nelle circostanze di cui al comma 1, sono stati temporaneamente ammessi nel territorio per necessità di
pubblico soccorso.
17
DPR 394/1999, the regulation implementing the TU, establishes the formal and substantive requisites that the
expulsion and detention decrees (among other administrative provisions) must possess. Article 3 (3) D.p.r.
394/1999 states: ‘Il provvedimento che dispone il respingimento, il decreto di espulsione, il provvedimento di
revoca o di rifiuto del permesso di soggiorno, quello di rifiuto della conversione del titolo di soggiorno, la
revoca od il rifiuto della carta di soggiorno sono comunicati allo straniero mediante consegna a mani proprie o
notificazione del provvedimento scritto e motivato, contenente l'indicazione delle eventuali modalità di
impugnazione, effettuata con modalità tali da assicurare la riservatezza del contenuto dell'atto. Se lo straniero
non comprende la lingua italiana, il provvedimento deve essere accompagnato da una sintesi del suo contenuto,
anche mediante appositi formulari sufficientemente dettagliati, nella lingua a lui comprensibile o, se ciò non è
possibile per indisponibilità di personale idoneo alla traduzione del provvedimento in tale lingua, in una delle
lingue inglese, francese o spagnola, secondo la preferenza indicata dall'interessato. This norm is applicable to
the detention decree as provided by Article 14 (1-bis) TU: ‘Le misure di cui al primo periodo sono adottate con
provvedimento motivato, che ha effetto dalla notifica all'interessato, disposta ai sensi dell'articolo 3, commi 3 e
4 del regolamento, recante l'avviso che lo stesso ha facoltà di presentare personalmente o a mezzo di difensore
memorie o deduzioni al giudice della convalida.’
11
right to be assisted by a defence lawyer of his choice and to receive legal aid (if the
requirements provided by law No 217/1990 for the attribution of legal aid ‘gratuito
patrocinio a spese dello Stato’ ‘free legal aid paid by the State’ are met)18. If the person has
not appointed a defence lawyer of his choice, the judge must nominate one (also called
avvocato or difensore d’ufficio – court-appointed lawyer). The detainee must be informed that
that all the correspondence concerning the proceedings will be sent at the address of the
defence lawyer19. The information contained in the detention decree must include the
indication of the judicial authority to which the detainee can lodge the appeal against the
detention decree20. The decree contains the order to detain the person in the nearest CIE
where there is a place available. The CIE must be one of those instituted or constituted by the
Ministry of Interior, in agreement with the Ministry of Economy and Finance21.
_2.1_Pre-removal detention
Pre-removal detention of an illegally staying migrant is disposed of by the questore on the
basis of a valid expulsion order issued by the prefetto when it is not possible to carry out the
expulsion immediately by accompanying the person at the border due to temporary obstacles
which impede repatriation22.
18
Article 3 (4) Dpr 394/1999: ‘Nel provvedimento di espulsione e nella sintesi di cui al comma 3, lo straniero è
altresì informato del diritto di essere assistito da un difensore di Fiducia, con ammissione, qualora (le sussistano
i presupposti, al gratuito patrocinio a spese dello Stato a norma della legge 30 luglio 1990, n. 217 e successive
modificazioni, ed è avvisato che, in mancanza di difensore di fiducia, sarà assistito da un difensore di ufficio
designato dal giudice tra quelli iscritti nella tabella di cui all'articolo 29 del decreto legislativo 28 luglio 1989, n.
271, e che le comunicazioni dei successivi provvedimenti giurisdizionali saranno effettuate con l'avviso di
cancelleria al difensore nominato dallo straniero o a quello incaricato di ufficio.’.
19
Articles 3 and 20 d.p.r. 394/1999. Art. 20 – Trattenimento nei centri di permanenza temporanea e assistenza 1.
Il provvedimento con il quale il questore dispone il trattenimento dello straniero presso il centro di permanenza
temporanea e assistenza più vicino, in relazione alla disponibilità dei posti, ai sensi dell'articolo 14 del testo
unico, è comunicato all'interessato con le modalità di cui all'articolo 3, commi 3 e 4, unitamente al
provvedimento di espulsione o di respingimento. 2. Con la medesima comunicazione lo straniero è informato
del diritto di essere assistito nel procedimento di convalida del decreto di trattenimento, da un difensore di
fiducia con ammissione ricorrendone le condizioni al gratuito patrocinio a spese dello Stato. Allo straniero è
dato altresì avviso che in mancanza di difensore di fiducia, sarà assistito da un difensore di ufficio designato dal
giudice tra quelli iscritti nella tabella di cui all'articolo 29 del decreto legislativo 28 luglio 1989 n. 271 e che le
comunicazioni dei successivi provvedimenti giurisdizionali saranno effettuate con avviso di cancelleria al
difensore nominato dallo straniero o a quello incaricato di ufficio. 3. All'atto dell'ingresso nel centro lo straniero
viene informato che in caso di indebito allontanamento la misura del trattenimento sarà ripristinata con l'ausilio
della forza pubblica. 4. Il trattenimento non può essere protratto oltre il tempo strettamente necessario per
l'esecuzione del respingimento o dell'espulsione e comunque oltre i termini stabiliti dal testo unico e deve
comunque cessare se il provvedimento del questore non è convalidato. 5. Lo svolgimento della procedura di
convalida del trattenimento non può essere motivo del ritardo dell'esecuzione del respingimento. 5-bis. Gli
avvisi di cui al comma 2 sono altresì dati allo straniero destinatario del provvedimento di accompagnamento alla
frontiera, in relazione all'udienza di convalida prevista dall'articolo 13, comma 5-bis, del testo unico.
20
Article 3 (3) D.P. R. 394/1999, see footnote 16 above.
21
Article 14 (1) TU.
22
Article 14 (1) TU.
12
The law expressly provides that the decision to expel a foreign national who does not possess
or has lost the requisites for staying or remaining legally on the Italian territory should be
made on a ‘case by case’ basis (Article 13 (2) TU)23. Expulsion must be carried out by
accompanying the person at the border in the following cases (Article 13 (4) TU):
(a) If the Ministry of Interior issues an expulsion decree for reasons of public order or
national security;
(b) if the person is suspect of belonging to a criminal association such as ‘mafia’ or other
associations pursuing an illegal objective with criminal means;
(c) if there is the risk that the person absconds;
(d) if the person violated one of the measures prescribed by the questore when the term
for voluntary repatriation was granted;
(e) if the request for a residence permit has been rejected as fraudulent or manifestly ill
founded;
(f) if the person did not voluntary leave the country within the term prescribed without
justification;
(g) when expulsion is disposed as criminal sanction or as a consequence of a criminal
sanction;
(h) if the person, duly informed by the Questura of the possibility to be granted a term for
voluntary repatriation, did not request such a term.
In compliance with European law24, Italian law specifies the circumstances in which the risk
of absconding exists (article 13 (4bis) TU). This risk is presumed25 when one of the following
23
Article 13 (2) TU in the original language states: ‘L'espulsione è disposta dal prefetto, caso per caso, quando
lo straniero:
a) è entrato nel territorio dello Stato sottraendosi ai controlli di frontiera e non è stato respinto ai sensi
dell'articolo 10;
b) si è trattenuto nel territorio dello Stato in assenza della comunicazione di cui all'articolo 27, comma 1-bis, o
senza avere richiesto il permesso di soggiorno nel termine prescritto, salvo che il ritardo sia dipeso da forza
maggiore, ovvero quando il permesso di soggiorno è stato revocato o annullato o rifiutato ovvero è scaduto da
più di sessanta giorni e non ne è stato chiesto il rinnovo ovvero se lo straniero si è trattenuto sul territorio dello
Stato in violazione dell'articolo 1, comma 3, della legge 28 maggio 2007, n. 68; (2)
c) appartiene a taluna delle categorie indicate nell'articolo 1 della legge 27 dicembre 1956, n. 1423, come
sostituito dall'articolo 2 della legge 3 agosto 1988, n. 327, o nell'articolo 1 della legge 31 maggio 1965, n. 575,
come sostituito dall'articolo 13 della legge 13 settembre 1982, n. 646.’
24
The ‘risk of absconding’ means the existence of reasons in an individual case which are based on objective
criteria defined by law to believe that a third-country national who is the subject of return procedures may
abscond (Returns Directive article 2 (7)). This implies that the State must define by law the circumstances
that justify the believe that the risk of excape exists. These criteria must be objective.
25
There is an absolute presumption that the risk of escape exists if one of the circumstances provided by article
13 (4 bis) TU occurs. Article 7 (3) of the Returns Directive provides that ‘certain obligations aimed at avoiding
the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee,
submission of documents or the obligation to stay at a certain place may be imposed for the duration of the
period for voluntary departure’. As mentioned above, Italian law lists a number of circumstances in which the
risk of escape must be presumed. In the residual cases which do not fall under the scope of the provisions on the
risk of escape the authorities may grant a term for voluntary repatriation upon request of the person reached by
the expulsion order. If a time for voluntary repatriation is granted, the administrative authorities can impose
13
circumstances is verified case by case by the prefetto:
(a)the TCN does not possess a valid passport or any other equivalent ID26;
(b)the TCN did not show sufficient evidence of the availability of an accommodation
where he can be easily found by the authorities27;
(c)the TCN previously lied on his personal information or gave false personal
information;
(d)the TCN violated one of the measures issued by administrative authorities in relation
to voluntary repatriation, expulsion or to detention; or one of the measures disposed
by the questore to make sure that the person will voluntarily leave the country28 (the
person did not comply with the obligation to leave the territory of the state before the
term for voluntary repatriation expired, (art. 13 (5) TU), or re-entered illegally the
Italian territory after being expelled (art. 13 (13) TU) or escaped from administrative
detention (art. 14 TU), or violated the measures issued as alternatives to
administrative detention (art. 14 (1 bis) TU); or violated one of the measures ordered
by the questore when he granted a term for voluntary repatriation (art. 13 (5.2) TU).
These circumstances have the nature of legal presumptions. If any of the above mentioned
conditions occurs, expulsion must be carried out by accompanying the person at the border,
except if there are reasons justifying the permanence of the foreign person in the country29.
When none of the circumstances in which the expulsion must be carried out by immediately
accompanying the person at the border occurs, the questore can, upon request of the person
concerned, grant a period for voluntary repatriation30 (see Chapter III below). At the same
measures such as those provided in article 7 (3) (see Chapter II below).
26
This hypothesis represents a large number of cases.
27
Article 12 (5 bis) TU provides that any person who gives or locates a property of which he can dispose to a
TCN in exchange of money and with the aim of gaining an illicit profit is liable of detention from 6 months up
to three years.
28
Article 13 (5.2) provides that when the questore grants a term for voluntary repatriation disposes one or more
of the following measures: deposit of passport or equivalent ID; obligation to reside in a previously identified
place where s/he can be easily found; obligation to report to the authorities at certain days and times. These
measures must be validated by the giudice di pace; they can be modified or revoked by the giudice di pace upon
request of the person concerned and with the agreement of the questore.
29
For example the duration of the stay in the Italian territory, the presence of minors attending school, or the
existence of other famiy or social links, Article 13 (5) TU.
30
The overall architecture of the Italian repatriation system seems no t in line with EU law. The return directive
(Directive 115/2008/EC) gives preference to voluntary repatriation in respect to forcefully accompanying the
person at the border. In the repatriation system designed by Italian law, voluntary repatriation is instead a
residual hypothesis. In fact, the person can request the prefetto to grant a period for voluntary repatriation
(including through programs of assisted voluntary repatriation provided by article 14 ter TU) if none of the
conditions provided by article 13 (4) TU occurs. The prefetto decides considering the circumstances of each
14
time, the questore must issue some measures with the aim to ensure that the person will leave
the country. These measures must be validated by the giudice di pace.
As already mentioned, administrative detention is disposed when there are temporary
obstacles which impede effecting immediate removal. The law in force does not specify a list
of circumstances that constitute ‘temporary obstacles’ impeding the removal and justifying
the detention. Instead, it indicates the following examples: the need to rescue the person; the
need to carry out further checks or verifications on the person’s identity or nationality; the
need to acquire travel documents or the availability of a suitable carrier31.
In those or similar situations, the questore orders that the foreign national is to be detained,
for the time strictly necessary, in the nearest detention centre among those identified or
established by decree of the Minister for the Interior, in agreement with the Ministers for
Social Solidarity and the Treasury, for the Budget and for Economic Planning32.
The system of expulsion and detention of illegal migrants clearly penalizes those who do not
possess any identification document. In fact, lack of ID constitutes a sufficient element to
presume that the risk of escape exists. In those cases, the questore does not grant a term for
voluntary repatriation and does not dispose measures alternative to detention, but can dispose
that the person stay in detention.
Theoretically, detention should not be prolonged beyond the time strictly necessary to remove
the obstacles impeding the execution of the expulsion33. However, since the law does not
expressly specify a list of the impediments which can lawfully justify administrative
detention, much room is left for administrative discretion (see § 6 below).
_2_2_Detention in the case of deferred push back (Article 10 (2) TU)
The police push back at the border any foreign person who does not possess the necessary
requisites to enter or stay on the Italian territory. When the foreign person entered the Italian
territory avoiding border control and is caught by the police (either in the act of crossing the
border or right after) or when the foreign person is temporarily admitted on the Italian
territory for the purpose of being rescued, the questore can issue a measure called
‘respingimento differito’ (deferred push back) 34. In this case, instead of pushing back the
case. If the prefetto grants a term for voluntary repatriation, the expulsion order contains the order to voluntarily
leave the country within a time limit between 7 and 30 days. This term can be prolonged in relation to the
specific circumstances of the case.
31
Article 14 (1) TU.
32
Article 14 (1) TU.
33
Article 14 (1) TU: ‘(…) il questore dispone che lo straniero sia trattenuto per il tempo strettamente necessario
presso il centro di identificazione ed espulsione più vicino (...)’.
34
The respingimento differito is regulated by article 10 (2) TU. This measure is issued by the questore in the
following cases: when the migrant is caught when is entering the Italian territory or right after the entrance, or
15
person at the border immediately, the push back is deferred to the moment when the person is
caught or after rescuing procedures have been completed. The push back is carried out by the
police accompanying the person at the border in compliance with the measure issued by the
questore. The execution of the measure implies the use of force towards the person and
possibly the restriction of personal liberty. There is no specification in the letter of the law on
whether the measure of respingimento differito must be approved by a judge. However it has
been argued that it does, because it entails a limitation of liberty and therefore must respect
constitutional guarantees (especially those provided by article 13 of the Italian Constitution),
including judicial control of the push back provision issued by the administration35. The law
does not set any time limit by which the questore must order that the person is accompanied
at the border in the hypothesis of respingimento differito. The questore can theoretically issue
this measure at any point in time. Meanwhile, the person stays in a situation of de facto
detention or semi-detention. In fact, when a TCN is caught while crossing the border or right
after, this person is deprived of his liberty (detained in a CIE, in a police station or in other
places which temporary serve the function of a CIE) or restricted in his freedom (retained in a
CARA, sometimes without being allowed to leaving the centre). The measure ordering the
push back is issued by the administrative authorities after a few days. In those cases the
migrant is de facto detained without respecting any of the constitutional guarantees of
personal liberty.
Since the law does not expressly regulate the matter, when appeals are filed against the
deferred push back measure issued by the questore, respect of constitutional guarantees is left
to the constitutionally oriented interpretation of law by the judges. For example, a in a case
recently decided on 8 July 2011 (Ruolo Generale No 1034/2011)36, an irregular migrant,
Boughanmi Hichan, a Tunisian national, was detained for 10 days in Lampedusa before the
questore disposed the measure of respingimento differito and ordered to immediately
accompany this person at the border. The giudice di pace in Agrigento (Alioto) annulled the
order of respingimento differito issued by the questore according to article 10 (2) TU, on the
ground that it violated the constitutional guarantees provided by Article 13 on personal
freedom.
When it is not possible to detain the TCN in a CIE or if the maximum term for detention
expired, the questore orders the person to leave the country within 7 days (Art 14 (5 bis) TU).
_2_3_Other cases
The detention in a CIE can be disposed by the questore in cases other than those provided by
when he is temporarily admitted for the purposes of rescuing him and providing him with first aid assistance.
35
Fulvio Vassallo Paleologo, Il respingimento differito disposto dal questore e le garanzie costituzionali, in
Diritto Immigrazione e Cittadinanza, FrancoAngeli, n. 2, 2009, pp. 15-30.
36
The full text of the case is available here: https://docs.google.com/file/d/0B404criiWBmNTdkNmNkMzQtZjhiZC00NDNkLTk4NDQtYzM4MDA0MDFjZGU5/edit?hl=en_US (accessed 18
April 2013).
16
article 14 (1) TU, which have been described above.
These cases are listed below:
A) when the person is involved in criminal proceedings, the questore must request the
authorization (‘nulla osta’) to the judge before executing the expulsion decree. While this
request is pending, the quesore may order the person to be detained. In this case the
maximum duration of the detention is of 7 days (art. 13 (3) TU, as amended by L. No
189/2002). If judicial authority does not respond within 7 days, the authorization is
considered granted37;
B) the questore may dispose the TCN to stay in detention while the request by the questore to
confirm the measure of accompagnamento forzato alla frontiera (accompanying the person at
the border) or the removal of a EU citizen’s TCN family member expelled for reasons of
public security is pending in front of the giudice di pace, unless the proceedings can be
completed in the place where the same measure was issued, before transferring the person to
the nearest CIE where there is availability of places (Article 13 (5 bis) TU38). In this case
detention cannot exceed the time limit of 72 hours.
_2_4_Selected case-law
On 26 April 2011 the giudice di pace of Milano decided an appeal against an expulsion order
issued by the prefetto of Milano, on the basis of article 13 (2) TU (entry eluding border
controls without being pushed back) [Ref. 29521/2011]39. The appellant requested the
expulsion order to be deemed invalid, because in his opinion it was adopted in violation of
art. 17 (4) Returns Directive. The judge held that the prefetto did not respect the principles
stated in the directive, among which the use of the less coercive effective measure. The
prefetto should have first granted a period for voluntary repatriation. As such, the expulsion
order was unlawful, because conflicting with European law. Consequently, the judge allowed
the appeal and annulled the expulsion order.
On 6 May 2011 the giudice di pace of Alessandria decided on the appeal against an expulsion
decree issued by the prefetto of Alessandria40. The expulsion decree was grounded on the
existence of the risk of absconding, which also justified the refusal to grant a term for
voluntary repatriation. At the time the Returns Directive had not been yet transposed in Italy,
37
This provision was modified by D.lgs 8 January 2007 No 5 and D.L. 23 May 2008 No 92.
38
This provision was amended by D.Lgs No 150 of 1 September 2011.
39
The decision is available here:
http://www.asgi.it/public/parser_download/save/giudice.di.pace.di.milano.sentenza.n.29521.2011.pdf (accessed
18 April 2013).
40
The decision is available here:
http://www.meltingpot.org/IMG/pdf/Direttiva_rimpatri_espulsione_GdP_Alessandria.pdf (accessed 18 April
2013).
17
however, many dispositions were considered self-executing. The judge held that, before the
directive was transposed into the Italian system the administration could not infer the
objective criteria to establish whether there is a risk of absconding from the provisions of the
directive (article 7 (3) of the Returns Directive states the conditions that the administration
can impose to the illegal migrant to prevent the risk of absconding). The judge held that the
administration lacks the power to determine whether the risk of absconding exists, which is a
prerogative of the legislatior. Consequently, the judge allowed he appeal against the expulsion
order.
On 11 February 2011 the giudice di pace of Salerno did not validate an expulsion decree
signed by the vice prefetto non-vicario without any formal delegation by the prefetto. The
judge held that without a formal explicit delegation of power the decree was not lawful.
_3_Administrative detention, constitutional law and European law
Some aspects of the legislation in force on administrative detention appear to be in conflict
with principles and norms of European law and witht constitutional dispositions.
First of all, as already mentioned, Article 15 of the Returns Directive provides that
administrative detention can be ordered only if repatriation proceedings are being carried out,
and only with the aim of preparing the repatriation or carry out the removal. European law
specifies two conditions under which administrative detention can be decided: the presence of
the risk of absconding and the fact that the irregular migrant avoids or impedes the
preparation of the repatriation or of the removal. These two circumstances seem to suggest
that the conditions legitimating administrative detention are those in which the obstacles to
repatriation proceedings are linked to the person’s behaviour. Italian law, instead, provides
that administrative detention can be disposed in cases upon which the irregular migrant does
not exercise any control, for example: the need to be rescued; the lack of a suitable carrier;
the need to acquire travel documents; the delay in obtaining documents from the authorities
of the Country of origin; or the fact that legal proceedings are being carried out.
The situations in which the risk of absconding (see above § 2.1) must be presumed under
Italian law appear not to be tightly linked to the TCN behaviour. The fact that a person does
not possess a valid passport or other equivalent document may not depend on the behavior of
the person but instead it can be due to the delay of the country of origin’s border authorities in
sending the documents. It has been argued41 that EU law refers to the difficulty in identifying
the person for altogether different reasons, that is, for the purpose of postponing the
expulsion, (Returns Directive, Article 9 (2) (b) TU). The second circumstance to presume the
risk of escape is when the irregular TCN does not produce any document showing the
availability of an accommodation where s/he could be easily found. This onerous burden is
difficult for a migrant to satisfy. One of the reasons is that, under Italian law, anyone who
agrees to rent or sell; or gives at any title a property of which he disposes to an irregular
41
http://www.corriereimmigrazione.it/ci/2012/11/ecco-perche-sono-illegali/ (accessed 18 April 2013) by
Alessandra Ballerini.
18
migrant in order to gain an unjust profit is liable of a crime punished with detention from six
months to three years (Article 12-bis TU). It has been argued42 that the dispositions justifying
administrative detention in cases not linked to the behaviour of the person to be detained in
the context of repatriation proceedings should be dis-applied by the judges because they are
not in line with the Returns Directive43.
Some scholars44 expressed the view that behind this disposition lays the specific intent to
detain the majority of irregular migrants, as in most cases they lack identification documents.
But there is also another reason of criticism. A foreign irregular migrant who has to be
expelled can request a term for voluntary repatriation. This term cannot be granted if the risk
of absconding exists. This is presumed whenever the person does not possess valid ID. As a
consequence, the possibility to be granted a term for voluntary repatriation remains a residual
hypothesis. In this way Italian authorities substantially elude the obligation to respect the
provisions of the Returns Directive and in particular seem to ignore that preference should be
accorded to voluntary repatriation in respect to expulsion by accompanying the person at the
border. The second circumstance has been also criticised as it may induce to fabricate false
documentation to prove housing availability, which is a crime under Italian law.
The legislation on administrative detention is not in line with Italian Constitutional law for a
number of reasons. Firstly, the Corte costituzionale held that administrative detention affects
personal freedom, and therefore it cannot be decided without observing the guarantees
provided by article 13 Constitution (Corte costituzionale, case No 105/2001). In this case the
Corte costituzionale affirmed that detention always mortifies human dignity, even when the
person is detained for assistance and rescue purposes. The Corte costituzionale stated that the
physical subjection to someone else’s power indicates always that the measure is interfering
with personal freedom’45. The Corte costituzionale, however, did not consider administrative
42
http://www.corriereimmigrazione.it/ci/2012/11/ecco-perche-sono-illegali/ (accessed 18 April 2013) by
Alessandra Ballerini.
43
http://www.corriereimmigrazione.it/ci/2012/11/ecco-perche-sono-illegali/ (accessed 18 April 2013) by
Alessandra Ballerini. See also: Andrea Natale in Diritto penale contemporaneo: A DIRETTIVA 2008/115/CE IL
DECRETO LEGGE DI ATTUAZIONE n. 89/2011 - PRIME RIFLESSIONI A CALDO and LA DISCIPLINA
DEI «C.I.E.» È INCOSTITUZIONALE Un pamphlet di Alberto di Martino in Diritto Penale Contemporaneo.
See also Rapporto sullo stato dei diritti umani negli istituti penitenziari e nei Centri di accoglienza e
trattenimento per migranti in Italia della Commissione Diritti umani del Senato del 6 marzo 2012.
44
Fulvio Vassallo Paleologo, Direttiva rimpatri e stato di diritto. Un commento alla luce della circolare
Manganelli prot. 400/B/2010 by the national head of police Prefetto Manganelli, on 7.1.2011; G. Savio, Breve
relazione introduttiva sulle differenze tra la direttiva rimpatri e la normativa italiana in termini di espulsioni
amministrative, Seminario di studi ASGI-MD, Verona 15.1.2011 – both available at www.meltingpot.org
(accessed 18 April 2013); and A. Liguori, L’attuazione della direttiva rimpatri in Italia, Diritto Immigrazione e
Cittadinanza, No 3, 2011.
45
The words of the Corte costituzionale in case No 105/2011 ‘il trattenimento “è misura incidente sulla libertà
personale, che non può essere adottata al di fuori delle garanzie dell’articolo 13 della Costituzione”,
determinando “anche quando questo non sia disgiunto da una finalità di assistenza, quella mortificazione della
dignità dell’uomo che si verifica in ogni evenienza di assoggettamento fisico all’altrui potere e che è indice
sicuro dell’attinenza della misura alla sfera della libertà personale”.
19
detention per se to be contrary to the Constitution: in the Corte costituzionale’s view, the
guarantees provided by article 13 Constitution (statutory reserve and judicial control of the
decision to detain within the prescribed time limit) are respected, administrative detention is
lawful.
However, many argue that the law in force and its interpretation in practice does not respect
the conditions set by Article 13 Constitution46. First of all, article 13 Constitution prescribes
that detention is legal when the requirements previously set by law are present (statutory
reserve)47. Article 14 TU, on the contrary, lacks precision and clarity in setting those
requirements. Secondly, the Constitution allows temporary limitations of personal freedom to
be disposed without the previous validation by a judge only in cases of ‘necessity and
urgency’. In other words, only compelling circumstances in exceptional and urgent situations
justify the adoption of measure restricting personal freedom by the public authority. The
measure must then be validated by the judicial authority within the following 48 hours from
the time when the measure was taken (Article 13 Constitution)48. It seems that article 14 TU
is in contrast with this provision. In fact, the measure disposing administrative detention is
ordinarily taken by the public security authority, and not only in cases of necessity and
urgency. The jurisdictional reserve (the guarantee that the limitation of liberty is only lawful
when it has been previously approved by a judge) is not respected in this case.
Article 110 of the Constitution attributes to the Minister of Justice the competence to organize
judicial offices and their functioning. Article 13 (5ter) TU, as amended by L. No 241/2004,
provides that within the limits of the resources available, the Questure provide the offices
where the validation hearing for of the detention decree takes place. This is in order to speed
up the validation proceedings. However, since the hearing takes place in offices belonging to
the police, public administration may exert some sort of subtle influence on the decision.
Some suggest that the hearings for the validation of the first decision to detain and further
requests of extension should instead take place in a neutral place, belonging to the
administration of justice instead49.
46
http://www.piuculture.it/2012/11/il-sistema-cie-e-la-violazione-dei-diritti-umani/ (accessed 18 April 2013).
47
The full text of article 13 Constitution: ‘La libertà personale è inviolabile. /Non è ammessa forma alcuna di
detenzione, di ispezione o perquisizione personale, né qualsiasi altra restrizione della libertà personale, se non
per atto motivato dell'autorità giudiziaria e nei soli casi e modi previsti dalla legge./In casi eccezionali di
necessità ed urgenza, indicati tassativamente dalla legge, l'autorità di pubblica sicurezza può adottare
provvedimenti provvisori, che devono essere comunicati entro quarantotto ore all'autorità giudiziaria e, se
questa non li convalida nelle successive quarantotto ore, si intendono revocati e restano privi di ogni effetto./È
punita ogni violenza fisica e morale sulle persone comunque sottoposte a restrizioni di libertà. /La legge
stabilisce i limiti massimi della carcerazione preventiva.’
48
http://www.piuculture.it/2012/11/il-sistema-cie-e-la-violazione-dei-diritti-umani/ (accessed 18 April 2013).
49
Paolo Bonetti, ‘Profili costituzionali della convalida giurisdizionale dell’accompagnamento alla frontiera’
Diritto, Immigrazione e Cittadinanza, Franco Angeli, 2002, 2.
20
The competent giudice di pace to decide on the legality of the detention decree is determined
in relation to the place where the office of the prefetto that issued the expulsion decree is
located - as already mentioned, the existence of a valid expulsion order is the condition for
issuing a detention decree. The decision of the place where the person has to be detained is
left entirely to the administrative authorities’ discretion. In fact, while the law provides that
the person is transferred to the closest detention centre (from the office of the questore who
issues the detention decree), it expressly exclude the decision of the administrative authorities
on this point from the scrutiny of the judge during the validation hearing. As a consequence,
the public administration can decide to transfer the person concerned in any detention centre
across Italy50. Therefore, the places where the person is detained and that where is located the
office of the giudice di pace competent in case of appeal against the detention order may be
different. In such cases, filing an appeal against the detention order may turn out to be
particularly difficult, as the lawyer in the place where the person is detained should bear the
costs of filing an appeal in another Court of Appeal’s district, which may be very far from
where he is based. The possibility that the CIE where the person is actually detained may not
be in the area where the office of the prefetto who issued the expulsion is located generates
another consequence. In the Italian legal system the function of giudice di pace is compatible
with that of lawyer. Therefore, there may be cases in which the giudice di pace must decide
upon the validity of a detention order on the bases of an expulsion order issued by the prefetto
in the area where he also practices as a lawyer. Now, it may happen that the giudice di
pace/lawyer eventually requests documents or administrative acts from the same prefetto.
There is here a potential latent conflict which is enough to undermine the impartiality of such
a giudice di pace in the cases he handles, due to the preoccupation to maintain positive
relations with the office of the prefetto51.
_4_Detention of minors52
Irregular foreign minors are persons under the age of 18 who are on the Italian territory
50
Article 14 TU.
51
Paolo bonetti, La proroga del trattenimento e I reati di ingresso o permanenza irregolare nel sistema del diritto
degli stranieri: profili costituzionali e rapporti con la direttiva comunitaria sui rimpatri. In Diritto immigrazione
e Cittadinanza, no 2/2009, p. 95.
52
The main normative documents regulating the legal treatment of foreign minors on the Italian terriroty are the
following: Convenzione delle Nazioni Unite sui Diritti del Fanciullo del 1989, il Codice Civile, la legge n.
184/83 sull'affidamento e l'adozione, T.U. sull'immigrazione n. 286/98 (as modified by D.lgs. 113/99, legge
189/2002 ecc.), regolamento concernente i compiti del Comitato per i Minori Stranieri D.P.C.M. n. 535/99;
Convenzione dell'Aja sulla Protezione dei minori del 5 ottobre 1961; Convenzione Europea relativa al rimpatrio
dei minori, Aja 28 maggio 1970;
Convenzione ONU sui diritti del fanciullo del 1989, ratificata e resa
esecutiva con legge 176/91; Risoluzione del Consiglio dell’Unione Europea del 26.6.97 sui minori non
accompagnati, cittadini di paesi terzi; L. 184/83 sull’adozione e l’affidamento e successive modifiche (legge
476/98, legge 149/2001); Codice Civile, Titoli X e XI; Regolamento di attuazione del T.U. 286/98, D.P.R.
394/99; Circolare del Ministero dell’Interno del 13.11.2000 relativa al permesso di soggiorno per minore età;
Circolare del Ministero dell’Interno del 9.4.2001 relativa al permesso di soggiorno per minore età e al
procedimento di competenza del Comitato per i minori stranieri; Nota del Comitato per i minori stranieri
sull’interpretazione dell’art. 25 della legge 189/2002 (14.10.2002); Linee Guida del Comitato per i minori
stranieri del 2003; Direttiva Amato del 2007.
21
without a residence permit. They arrive on the Italian coasts or at the borders with other
migrants; sometimes they travel alone53. An ‘unaccompanied minor’ is a minor who is not an
European citizen, who did not request asylum and is present on the Italian territory for any
reason, without any assistance or representation by parents or other adults legally responsible
for him/her (Article 1(2) of Decreto del Presidente del Consiglio dei Ministri 535/1999)54.
Foreign minors and foreign unaccompanied minors must be protected. Migrant minors are
entitled to receive a treatment appropriate to their condition of minors. There is a general
prohibition to expel minors except when it is in their higher interest. Foe example, foreign
minors have the right to follow their parents or guarantors in case they are expelled (articles
19 (2) (a) and 31 (4) TU) or they can be expelled for reasons of public order and state
security55. In general, when deciding a case where a minor is involved, any officer must
decide taking into account the higher interest of the minor56. The prohibition to expel a minor
implies that minors cannot be held in administrative detention.
As such, minors should not be detained57. In fact, if they are unaccompanied, they have the
53
Amnesty campaign ‘the invisible’, launched in 2007 highlighted the fact that there is a high number of minor
migrants
disembarking
on
Italian
coasts.
Available
at
http://www.amnesty.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/201 (accessed 19 April 2013).
54
Instead, a 'foreign unaccompanied minor temporarily received (‘accolto’) on the Italian territory’ is 'a minor
who is not an European citizen, who is in the age of 6 or older and is in Italy in virtue of solidarity programs of
temporary reception sponsored by associations, families, even if the minor or the group to which the minor
belongs is assisted by adults as guides and support’ Article 1 (3) of the DPCM 535/1999.
55
See articles 19 (2) (a) TU: ‘Non è consentita l'espulsione, salvo che nei casi previsti dall'articolo 13, comma 1,
nei confronti: a) degli stranieri minori di anni diciotto, salvo il diritto a seguire il genitore o l'affidatario espulsi.’
See also articles 31, 32, and 33 TU.
56
‘In all the judiciary and administrative proceedings involving minors, the superior interest of the minor must
be taken into account as prevalent’ (Article 28 (3) TU).
57
The UN Convention on the Right of the Child (Article 37 (b) (c) (d)) provides special guarantees for minors
in detention. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
also applicable to minor migrants, was ratified by Italy in 1998. However, there is not a disposition punishing
the crime of torture in the Italian criminal code. The Geneva Convention on the Status of Refugees 1951, is
applicable to minors. Linee guida sulla protezione e la cura dei minori rifugiati (Guidelines on the protection
and care of minor refugees) e le Linee guida sulle pratiche e le procedure riguardanti i minori non
accompagnati richiedenti asilo (Guidelines on the practices and procedures concerning unaccompanied minors
requesting international protection) point out how harmful detention can be for minor refugees and as such it
should only be used as a measure of last resort and for the shortest tume possible. Moreover, the guidelines
recommend that minor are not detained, especially when they are unaccompanied. Any effort must be made to
ensure that minors are released from detetnion and they are put in a facility which accommodate their needs. If
this is impossible, they must be put in detention facilities suitable for minors and their families. The approach
must be in the view of assistance and not in the view of detention. In February 2011 the Commissioner for
Human Rights at the Council of Europe Thomas Hammarberg, advocated the prohibition of detention for minor
migrants in the countries of the Council of Europe. http://www.dirittiglobali.it/home/categorie/28-diritti-umania-discriminazioni/10081-lstop-alla-detenzione-dei-minori-migrantir.html?ml=2&mlt=yoo&tmpl=component
(accessed 19 April 2013).
22
right to stay temporarily on the Italian territory. Unless there are the legal requisites for
issuing a residence permit at any title58, unaccompanied minors have the right to be issued
with a residence permit for minor age59. When accompanied by an adult (parent, relative or
carer), the general rule is that the minor stays with that person. However, if this person is
detained they should be accommodated in a specialized facility where the needs of the minor
can be better fulfilled.
The Comitato per i minori stranieri (Committee for foreign minors) is the national organ
responsible for the protection of foreign minors on the Italian territory (including minors who
have been received on the Italian territory and unaccompanied minors) instituted in 199960.
Currently, the functions of the Comitato per minori stranieri have been transferred to the
offices of the Public Administration to which the committee belongs, that is the Direzione
Generale dell’immigrazione e delle Politiche di Integrazione del Ministero del Lavoro e delle
Politiche Sociali at the end of 201261.
In general, any foreign minor with no immigration status arriving at the Italian border must
stay in a Centro di Accoglienza (Reception Centre, from now on CDA) or in a Centro di
Primo Soccorso e Accoglienza (Centre for First Rescue and Reception, from now on CPSA)
for the time strictly necessary to carry out first rescue operations. The minor must be then
58
This has been provided by the Circolare issued by the Ministry of Interior of 23.12.1999.
59
D.P.R. 394/99, art. 28 (1) (a), as modified by art. 22, comma 1, lett. a), of D.P.R. 18 October 2004, n. 334:
‘1. Quando la legge dispone il divieto di espulsione, il questore rilascia il permesso di soggiorno:
a) per minore età, salvo l'iscrizione del minore degli anni quattordici nel permesso di soggiorno del genitore o
dell'affidatario stranieri regolarmente soggiornanti in Italia. In caso di minore non accompagnato, rintracciato
sul territorio e segnalato al Comitato per i minori stranieri, il permesso di soggiorno per minore età é rilasciato a
seguito della segnalazione al Comitato medesimo ed é valido per tutto il periodo necessario per l'espletamento
delle indagini sui familiari nei Paesi di origine. Se si tratta di minore abbandonato, é immediatamente informato
il Tribunale per i minorenni per i provvedimenti di competenza. Circolare del Ministero dell’Interno del
13.11.2000. In December 2012 the Conferenza Stato-regioni signed an agreement, establishing the obligation to
register any unaccompanied minor who is present on the Italian territory to the National Health Services.
60
The Comitato per i minori stranieri provided by article 33 (1) TU was established by the DPCM 535/1999
with the purpose of protecting the rights of unaccompanied minors and minors who have been accepted, in
compliance with the provisions of the New York Convention on the Rights of the Child, 1989, which was
ratified and transposed in the Italian legal system with the law 27 May 1991 No 176. The main functions of the
Committee are as follows: a) monitoring the conditions of the minor’s stay; b) cooperation and coordination
with the administrative offices involved; c) decision on the minor’s temporary reception on the basis of the
requests from associations and families, or on temporary custody and repatriation of minors; d) prepares the list
of minors who have been received according to letter c); verification of the status of unaccompanied minor; f)
research of the relatives of unaccompanied minors in Italy and in their country of origin; g) disposal of the
assisted repatriation of unaccompanied minors when relatives are found in the unaccompanied minors’ country
of origin; h) individuation of the criteria for the evaluation of requests concerning minors in custody; i) the
committee also is responsible for unaccompanied minors’ census. Moreover, The Comitato per i minori stranieri
was attributed the competence to decide whether the best interest of the minor is to be repatriated or not. In this
case a special procedure called ‘assisted repatriation’ (rimpatrio assistito) is carried outArt. 33 (2) (b) T.U. as
amended by D. Lgs. No 113/99.
61
Article 12 (20), D.L. No 95/2012, converted into the L. No 135/2012.
23
transferred in a separated facility (‘struttura ponte’, bridge facility) – in which the minor will
receive care, education and protection – within 48 hours from his arrival at the reception
centre.
There is a positive obligation on any public official, or persons working in health care and
social services, who are aware that an unaccompanied minor is present on the Italian territory
to inform the Comitato per minori stranieri without delay, in such a way to safeguard the
minor's privacy62. The communication must include: personal data, nationality, physical
conditions, available means of subsistence, and a temporary address of the unaccompanied
minor (Article 5 DPCM 535/1999). The Comitato per minori stranieri must carry on
investigations to find the relatives of the minor in the country of origin or in third countries,
and verify whether the authorities of the country of origin are available to undertake the
minor’s custody, and decide whether it is in the best interest of the minor to stay in Italy or to
be repatriated. In this latter case repatriation is carried out through a special procedure for
vulnerable persons called 'assisted repatriation'. This decision should be taken within 60 days
but this term is not always respected63.
If the Comitato per minori stranieri does not intervene immediately, the organ responsible
must take the necessary measures promptly. For unaccompanied minors requesting asylum
the responsibility is attributed at a regional level. The responsibility for unaccompanied
minors who do not request international protection, instead, is attributed at a national level to
the soggetto attuatore64.
When an unaccompanied minor is found on the Italian territory, the public security authorities
must also immediately inform the judicial authority (Tribunale dei minorenni65, the Giudice
tutelare66) of the presence of the minor. There is an obligation to inform the offices of the
Procura della Repubblica as well. These organs must declare whether the minor is an
abandoned minor (‘stato di abbandono’, status of abandon, is the circumstance where there is
no adult who is legally responsible for the minor on the Italian territory)67. If the minor is
abandoned, the Giudice Tutelare must nominate a guarantor and the minor must be given in
62
Art. 33 TU; Articles 1 and 5 of D.P.C.M. 535/99.
63
See
http://www.lavoro.gov.it/NR/rdonlyres/587ED4F7-DCC7-434C-BE19ECCE5E3CC8E2/0/procedura_collocamento_minori.pdf (accessed 19 April 2013).
64
Circolare 13 Luglio 2011; Ordinanza Protezione Civile No 3933 of 2011.
65
Among the competencies of the Tribunale per i minorenni, composed by two honorary and two professional
judges are: adoptions, protection of abandoned minors, crimes committed by minors.
66
The Giudice tutelare is a civil judge competent for releasing a passport to the minor, nominating the
guarantor, authorizing minors to interrupt pregnancy, and carry out acts of extraordinary administration for the
minor.
67
Article 9 Law No 184/1983.
24
custody68. When the minor is given in custody to social services, s/he is entitled to a
residence permit for custody which can be converted when the minor reaches 18 years69.
As soon as possible a ‘struttura ponte’ (bridge facility) must be identified. This is a place
where the minor can be accommodated temporarily until the authorities identify the place
where the minor will stay until he reaches the age of majority. The function the struttura
ponte is to offer a safe place where the minor can be accommodated straightaway, allowing
time to design the programme for the minor’s integration. The minor in the struttura ponte
must be informed of his right to request international protection; a health check must be
carried on to safeguard the health of the minor and that of the local community70. Meanwhile,
the Major or its delegate must carry on the checks on identity, age, status of unaccompanied
minor and take information upon the eventual presence of relatives in Italy. The Comitato per
minori stranieri must check the availability of places in a reception community (among those
which better satisfy the need of the minor). Once the minor has been transferred to the
reception community, the local social services take care of the minor. They must start the
procedures provided by law (request to the Giudice Tutelare to nominate a tutor; residence
permit etc.) and they are responsible of the communication between the Comitato per minori
stranieri, the Procura della repubblica, the soggetto attuatore and the Giudice Tutelare71.
Unaccompanied minors requesting asylum should be promptly transferred from a ‘struttura
ponte’ to a specialized centre for minor asylum seekers or to a CARA. There is an obligation
to immediately inform the Giudice Tutelare any time an unaccompanied minor requests
asylum, so that a guarantor can be promptly nominated.
In practice, the assistance and protection that minors (unaccompanied or accompanied)
receive is inferior to the one they are entitled to receive according to the law.
One of the main difficulties in case a migrant lacking a valid identification document affirms
to be a minor is the age determination. There is no law regulating age determination outside
the domain of criminal law. The method currently used for age assessment is the wrist X-ray.
This tecnicuqe has a margin of error between 12 and 24 months, which may vary according
to the physical development of the minor and the place of origin. However, in the majority of
68
Articoli 343 and ss. Codice Civile; Article 3 L No 184/1983. A FRA report pubblished in 2010 indiates that in
Italy
guarantors
are
‘immediately
nominated
upon
arrival’
http://fra.europa.eu/sites/default/files/fra_uploads/1309-FRA-fullreport-sep-asylum-conference-2010_EN.pdf
(accessed 19 April 2013), p. 77 . However, in Italy children had ‘fragmented and confused perception of the
roles and duties of a guardian’. Ivi, p. 77. Among other insights in the report: guardians should be specifically
trained and should develop closer and more personal relationships with the children, ivi, p. 77 and 78. When
possible children should be allowed to be in touch with their families in their homecountry, ivi p. 90-91.
69
Article 2 of Law No 184/1983.
70
http://www.lavoro.gov.it/NR/rdonlyres/587ED4F7-DCC7-434C-BE19ECCE5E3CC8E2/0/procedura_collocamento_minori.pdf (accessed 19 April 2013).
71
http://www.lavoro.gov.it/NR/rdonlyres/587ED4F7-DCC7-434C-BE19ECCE5E3CC8E2/0/procedura_collocamento_minori.pdf (accessed 19 April 2013).
25
cases there is neither mention nor determination of the rate of error. No other check or test is
carried out. The exam takes place without the assistance of psychologists or other experts.
The 2007 report by the Commissione De Mistura of the Camera dei Deputati72 indicates that
the majority of irregular migrants affirming to be minors are between 16-18 years old, and
that there is therefore a risk that a certain number of minors is reached by an expulsion order
or held in administrative detention due to the erroneous determination of their age.
In the context of the humanitarian emergency in North Africa (started in 2011) minors were
escaping the war in Tunisia and Libya. Sometimes minors escaped to help their families that
were experiencing serious economic difficulties after the social, political and economic crisis
in their country of origin. Other minors came to find their relatives in Italy. Save the Children
Italia Onlus reported that 6.340 unaccompanied minors are in Italy and the majority of them
came from Afghanistan, Tunisia, Egypt and Morocco. 2.200 minors disembarked in Italy
following the crisis in North Africa in 201173. As denounced by the report of the Agenzia
delle Nazioni Unite per il monitoraggio della Convenzione a protezione dei diritti
dell'infanzia, in 2011, the guarantees provided by Italian law for minors (including
unaccompanied minors asylum seekers) were not often respected in practice, in particular in
respect to the determination of the age and the nomination of a guarantor74.
Save the Children reported cases of minors kept in reception centres for more than 15 days, in
particular in Lampedusa, where some of them were responsible of acts of self harm. In the
reception centre of Porto Empedocle 109 unaccompanied minors waited one week to be
accommodated in a in a different facility more respondent to their needs75. Other minors were
kept in other centres.
Save the Children recommended that the ‘strutture ponte’ are individuated promptly and the
minors transferred in communities; that the number of places in communities on the Italian
territory is increased, that the funding destined to establish communities for the
accommodation of minors is also incremented.
The Council of Europe Commissioner for Human Rights Nils Muižnieks, in September 2012,
and the UN special Rapporteur on the rights of migrants François Crépeau, in October 2012,
urged Italy to refrain from summary returns to Greece, citing continuing concerns over the
72
It is the lower chamber of the Italian Parliament. Both chambers have the same powers. The report is available
here: http://www.interno.gov.it/mininterno/export/sites/default/it/assets/files/1/2007131181826.pdf (accessed 19
April 2013).
73
Save the Children Italia Onlus, 21 August 2012, Dossier on Trafficking: I piccoli schiavi invisibili available
at: http://images.savethechildren.it/IT/f/img_pubblicazioni/img153_b.pdf (accessed 19 April 2013), p. 9.
74
The report on foreign minors in Italy by Save the Children published in 2011 is available at:
http://images.savethechildren.it/IT/f/img_pubblicazioni/img59_b.pdf (accessed 19 April 2013), p. 31.
75
http://www.amnesty.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/201 (accessed 19 April 2013).
26
grave deficiencies in Greece’s asylum system76.
In a recent report issued in 2003, Human Rights Watch (hereinafter ‘HRW’) documented the
practice of summary returns of unaccompanied minors and asylum seekers from Italian ports
on the Adriatic Sea (Brindisi, Bari, Ancona and Venice mainly) to Greece77. 13 minors aged
between 13 and 17 interviewed by HRW were returned to Greece with a summary procedure.
They were not given a guarantor; they were not assisted by social services.
HRW reports that ‘Italian port officials do not always admit children to the territory to
determine their best interest. Nor do they consistently give children access to guardians. By
failing to carry out an age determination procedure, or by not giving those who claim to be
children the benefit of the doubt before sending them back to Greece, Italian port officials
also may not be giving migrants who could be children the protection they are due under
international law. In addition to screening failures, authorities routinely impede access for
migrants to lawyers, NGOs, service providers, interpreters, and other sources of information
and protection’78.
Human Rights Watch requested Italy to change the following practices and procedures
(among others)79:
-
cease immedially summary returns to Greece;
-
Guarantee to any person declaring to be an unaccompanied minor that he/she is received
on the Italian territory, that he/she is given access to a suitable procedure for the
determination of the age.
The special rapporteur of the Commission for human rights F. Crépeau, recently reported that
Afghan unaccompanied minors trying to reach Italian territory have been pushed back to
Greece (after the case MSS v Greece and Belgium was decided by the European Court of
Human Rights on 21 January 2011. In this case the Court defined Greece an 'unsafe country'
76
See http://www.hrw.org/sites/default/files/reports/italy0113ForUpload_0.pdf (accessed 19 April 2013) p. 15.
77
http://www.hrw.org/sites/default/files/reports/italy0113ForUpload_0.pdf (accessed 19 April 2013), p. 14. On
January 2011, the European Court of Human Rights decided the cases M.S.S v Belgium and Greece (Application
no. 30696/09). The Court held that the return of an Afghan asylum seeker to Greece under the provisions of of
Council Regulation (EC) No 343/2003 (the “Dublin II” Regulation) by Belgium violated article 3 of the
European Convention of Human Rights. On 21 December 2011, the Court of Justice of the European Union
decided the case N.S v Secretary of State for the Home Department, concerning the operation of the “Dublin II”
Regulation. The Court held that “it would not be compatible with the aims of Regulation No 343/2003 were the
slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an
asylum seeker”. By contrast, if there are “substantial grounds for believing that there are systemic flaws in the
asylum procedure and reception conditions for asylum applicants…resulting in inhuman or degrading
treatment, within the meaning of Article 4 of the Charter…the transfer would be incompatible with that
provision” (at para. 84 and 86. Emphasis added).
78
http://www.hrw.org/sites/default/files/reports/italy0113ForUpload_0.pdf (accessed 19 April 2013), p. 8-9.
79
http://www.hrw.org/sites/default/files/reports/italy0113ForUpload_0.pdf (accessed 19 April 2013), p. 5-6.
27
for asylum seekers). The unaccompanied minor migrants may potentially have been asylum
seekers. The special rapporteur stressed that when a decision involving unaccompanied minor
migrants is taken, the highest interest of the minor must be taken into account, and
recommended to assess whether there is any possibility for family reunion or for an
application for international protection.
The special rapporteur suggested improvement of the coordination of the activities for the
protection of unaccompanied minors. For example, unaccompanied minors should be evenly
distributed in the specialized facilities throughout the national territory.
In a report published in 2006, Amnesty International indicated that unaccompanied minors
were not detained after being transferred from the reception centre in Lampedusa. However,
if minors were with their family and their family was detained, minors stayed in detention80.
In consideration of this practice, Amnesty International advocated that the whole family
should be transferred in open reception centres, in every case in which the superior interest of
the minor required it81. This campaign also denounced the absence of personal with sufficient
legal training on minors' rights operating at the Italian borders. The campaign also criticized
the method used to determine the age of a person who declared to be minor and did not
possess any documentation attesting the age (wrist x-ray). Minors erroneously considered of
age, instead of receiving protection, face the risk of administrative detention with adults
and/or forced removal82. Amesty International stressed the need to improve the identification
system in order to reduce errors and reduce the waiting time in which minors are detained in
conditions which do not meet their special needs83.
As mentioned above, the law states that a guardian or adviser must be appointed as soon as
the unaccompanied minor is identified. The guardianship arrangements have to be maintained
until the child has either reached the age of majority or has permanently left the territory of
the state. However, the minor is not always entrusted with a guarantor. Left on his own, the
minor is exposed to the risk of being marginalized or involved in criminal activities.
Save the Children currently monitors reception activities in the Centro di Soccorso e Prima
Accoglienza (CSPA) in Lampedusa, in order to verify the respect of international standards.
This CSPA has the function of offering first aid and rescue to the migrants, before they are
transferred to other immigration centres (see Chapter V below). The permanence in this kind
of centres should be short and in any case the migrants should be transferred within 48 hours.
Save the Cildren reports that between May and December 2008 the average time of
permanence of minors in the centre was of 5 days, and some minors were kept in the centre
80
http://www.amnesty.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/201 (accessed 19 April 2013).
81
http://www.amnesty.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/201 (accessed 19 April 2013).
82
http://www.amnesty.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/201 (accessed 19 April 2013).
83
http://www.interno.gov.it/mininterno/export/sites/default/it/assets/files/1/2007131181826.pdf
April 2013) p. 21.
(accessed
19
28
for more than 20 days. This practice created a virtually dangerous situation for minors and
other vulnerable migrants84, because they could potentially be detained with adults.
Other sources report the condition of unaccompanied minors in Lampedusa, qualifying it as
'dramatic': minors between 14 and 17 years old are retained in the CPSA of Contrada
Imbriacola, or the ex military base Loran (which was qualified as CIE since 2009 by the
Ministry of Interior, but it is in fact used as an appendix of CPSA of Contrada Imbiracola)85.
Other sources report delays in transmitting the minors' requests for international protection to
the competent Questura 86.
It has been reported that some cases, minors present in the reception centre of Lampedusa
were treated differently according to their nationality: those coming from Maghreb received a
better treatment compared to those from Sub-Saharan regions87. This practice was probably
based upon the erroneous presumption that migrants from Tunisia, Algeria and Egypt were
not entitled to asylum.
Fulvio Vassallo Paleologo recalls that the presence of minors in the detention centre Vulpitta
of Trapani was reported repeatedly before 2007: minors were unduly detained with adults88.
A minor of 13 years old has apparently been detained in a soccer field in Linosa, where it
seems that he tried to hang himself using the goal’s net89.
It has been reported that minors who escape from the reception centre while waiting for
identification in Lampedusa were caught and subject to physical violence by the public order
authorities90.
Terre des Hommes denounced that in 2011 the authorities lost track of 835 minor migrants91.
84
Rapporto
de
Mistura
2007:
http://www.interno.gov.it/mininterno/export/sites/default/it/assets/files/1/2007131181826.pdf (accessed 19 April
2013), p. 20.
85
86
http://www.altrodiritto.unifi.it/frontier/prassi/ (accessed 19 April 2013).
http://www.meltingpot.org/articolo16974.html (accessed 19 April 2013).
87
http://www.meltingpot.org/articolo16974.html (accessed 19 April 2013) this document reports that if it was
found that the minor’s nationality was Tunisian or Egyptian, this person was repatriated collectively with
persons of the same nationality.
88
http://www.altrodiritto.unifi.it/frontier/prassi/minori.htm (accessed 19 April 2013).
89
http://www.altrodiritto.unifi.it/frontier/prassi/minori.htm (accessed 19 April 2013).
90
http://www.altrodiritto.unifi.it/frontier/prassi/minori.htm (accessed 19 April 2013).
91
Terre des Hommes, Rapporto finale di attività, www.famigliacristiana.it (accessed 19 April 2013).
29
Vulnerable migrants
Besides minors, there are other categories of vulnerable migrants, such as women; victims of
trafficking; victims of torture; unaccompanied older persons; persons with a mental or
physical disability; persons living with HIV/AIDS. Italian law provide some form of
protection for some of these groups.
If during a police operation or investigation, or in the context of social services’ activities it is
verified that a foreign person is victim of violence or severe exploitation and this person’s
safety is at risk (in case this person wants to escape from the control of a criminal association,
the questore can issue a special residence permit. The aim of this provision is to offer to the
victim a way out from the circuit of violence and the opportunity to take part in a program of
assistance and social integration92. This residence permit is valid for six months and it can be
renewed for a year or for longer periods ‘according to reasons of justice’. The residence
permit can be revoked if the person does not take part in the activities of the program or
behaves in a way which is not compatible with the aim of the program. This residence permit
gives access to education and health services; it can be extended if the person is regularly
employed or enrolled in a course when the permit expires93. This permit can be issued to
foreign minors convicted for crimes after serving their sentences if they participated actively
in a program of assistance and social integration94.
There is a general prohibition in Italian law to expel pregnant women, or before six month
from their child’s birth95. This implies that they should not be held in administrative
92
Article 18 (1) TU: ‘Quando, nel corso di operazioni di polizia, di indagini o di un procedimento per taluno dei
delitti di cui all'articolo 3 della legge 20 febbraio 1958, n. 75, o di quelli previsti dall'articolo 380 del codice di
procedura penale, ovvero nel corso di interventi assistenziali dei servizi sociali degli enti locali, siano accertate
situazioni di violenza o di grave sfruttamento nei confronti di uno straniero, ed emergano concreti pericoli per la
sua incolumità, per effetto dei tentativi di sottrarsi ai condizionamenti di un'associazione dedita ad uno dei
predetti delitti o delle dichiarazioni rese nel corso delle indagini preliminari o del giudizio, il questore, anche su
proposta del Procuratore della Repubblica, o con il parere favorevole della stessa autorità, rilascia uno speciale
permesso di soggiorno per consentire allo straniero di sottrarsi alla violenza ed ai condizionamenti
dell'organizzazione criminale e di partecipare ad un programma di assistenza ed integrazione sociale’.
93
Article 18 (5) TU: ‘Il permesso di soggiorno previsto dal presente articolo consente l'accesso ai servizi
assistenziali e allo studio, nonché l'iscrizione nelle liste di collocamento e lo svolgimento di lavoro subordinato,
fatti salvi i requisiti minimi di età. Qualora, alla scadenza del permesso di soggiorno, l'interessato risulti avere in
corso un rapporto di lavoro, il permesso può essere ulteriormente prorogato o rinnovato per la durata del
rapporto medesimo o, se questo è a tempo indeterminato, con le modalità stabilite per tale motivo di soggiorno.
Il permesso di soggiorno previsto dal presente articolo può essere altresì convertito in permesso di soggiorno per
motivi di studio qualora il titolare sia iscritto ad un corso regolare di studi’.
94
Article 18 (6) TU: ‘Il permesso di soggiorno previsto dal presente articolo può essere altresì rilasciato, all'atto
delle dimissioni dall'istituto di pena, anche su proposta del procuratore della Repubblica o del giudice di
sorveglianza presso il tribunale per i minorenni, allo straniero che ha terminato l'espiazione di una pena
detentiva, inflitta per reati commessi durante la minore età, e già dato prova concreta di partecipazione a un
programma di assistenza e integrazione sociale’.
95
Article 19 (2) (d) TU. The Constitutional Court declared the illegitimacy of article 19 TU concerning the part
where it does not extend to the husband living with the pregnant woman or with a woman who has given birth
less than six months before the expulsion the prohibition of expulsion (Case No 376, 27 July 2000, available
30
detention.
Another norm on vulnerable persons provides that the push back or the removal of persons
with a disability, older persons, minors, single parents and their child/ren, victims of serious
psychological, physical or sexual violence must be carried out in ways which are compatible
with the individual circumstances96.
Good practices
The FRA comparative report on ‘Separated, asylum seeking children in European Union
Member States’ issued in November 2010 documented an innovative experimental practice to
place separated children in foster families with the same cultural background as the child.
This practice started in 2000 in Parma and then adopted by other cities such as Venice,
Bolzano, and Cremona. When foster family members are relatives within the fourth degree,
the child becomes eligible for permission to work, which can be renewed beyond the age of
18 years. Educators and cultural-linguistic mediators support the fostering process through
the crucial initial phases of identification, evaluation and training, supporting foster families
and accompanying the child along the path to autonomy97. Another good practice of some
accommodation facilities for minors is that of employing cooks from Morocco, Tunisia or
Sub-Saharan Africa98. Overall, the report highlights the significance of respecting, protecting
and fulfilling the right to freedom of thought, conscience, religion or belief of separated,
asylum-seeking children, their right to manifest and practice their religion and the respect for
cultural and religious practices (concerning igene, food, prayer, etc.) for the well being,
healthy and balanced growing up of unaccompanied minor migrants. The report recommends
that in the provision of care and services to these children, particularly with regard to food,
due consideration should be given to meeting their religious requirements, especially as they
relate to practice and observance99.
_5_The detention of persons requesting international protection
Irregular migrants who request international protection in Italy are entitled to remain until the
local Commissione Territoriale (Territorial Commission) decides on their request. The request
should be processed within 15/30 days; however, this time limit is not often respected. The
person requesting international protection may appeal to the Tribunal against an initial
here:
a
http://www.meltingpot.org/Corte-costituzionale-Sentenza-27-luglio-2000-n376.html#.UXK6ADebWAY, accessed 20 April 2013).
96
Article 19 (2-bis) TU.
97
http://fra.europa.eu/sites/default/files/fra_uploads/1309-FRA-fullreport-sep-asylum-conference-2010_EN.pdf
p. 37-38 (accessed 20 April 2013).
98
http://fra.europa.eu/sites/default/files/fra_uploads/1309-FRA-fullreport-sep-asylum-conference-2010_EN.pdf
p. 40 (accessed 20 April 2013).
99
http://fra.europa.eu/sites/default/files/fra_uploads/1309-FRA-fullreport-sep-asylum-conference-2010_EN.pdf,
p 62 (accessed 20 April 2013).
31
negative decision by the Territorial Commission, asking for the suspension of the initial
decision's effects, if this suspension is not automatic100. If the asylum seeker is in
administrative detention the appeal does not suspend the effect of the initial negative decision
of the Territorial Commission.
As a general rule, asylum seekers cannot be detained for the sole purpose of examining their
request101. The asylum seeker is entitled to receive a temporary residence permit while the
request for international protection is being processed. However, the questore may order the
asylum seeker to be accommodated in a CARA (sometimes even in a CDA) or detained in a
CIE in the cases specified respectively by articles 20 and 21 of D.lgs. 25/2008 (see below). In
both cases, the questore issues a document certifying the status of ‘person requesting
international protection’ (with the name of the person on it) (article 26 (5) D.lgs. 25/2008).
When the asylum seeker is not detained, the questore issues a temporary residence permit
which is valid for three months102. This residence permit can be renewed until the end of the
procedure for the recognition of international protection. The prefetto determines the place of
residence or the area where the asylum seeker is free to move until the end of the
proceedings. This provision was introduced by D.lgs. 159/08. Before 2008, asylum seekers
and persons requesting international protection were free to move within the Italian borders
until the end of the proceedings. The freedom of movement of the asylum seekers and people
requesting international protection has been restricted since then. However, this provision is
not uniformly applied, as the region where the asylum seeker is free to move is not always
specified by the prefetto.
The person requesting international protection must stay in a reception centre (CARA) in the
following cases103:
100
Art. 19 (4) and (5) of the D.lgs 1 September 2011 , n. 150 regulates the suspensive effects of the appeal as
follows: ‘4. La proposizione del ricorso sospende l'efficacia esecutiva del provvedimento impugnato, tranne
che nelle ipotesi in cui il ricorso viene proposto: a) da parte di soggetto ospitato nei centri di accoglienza ai
sensi dell'articolo 20, comma 2, lettere b) e c), del decreto legislativo 28 gennaio 2008, n. 25, o
trattenuto ai sensi dell'articolo 21 del medesimo decreto legislativo, ovvero b) avverso il provvedimento che
dichiara inammissibile la domanda di riconoscimento dello status di rifugiato o di persona cui e' accordata la
protezione sussidiaria, ovvero c) avverso il provvedimento adottato dalla Commissione territoriale
nell'ipotesi prevista dall'articolo 22, comma 2, del decreto legislativo 28 gennaio 2008, n. 25, ovvero d)
avverso
il
provvedimento
adottato
dalla
Commissione territoriale che ha dichiarato l'istanza
manifestamente infondata ai sensi dell'articolo 32, comma 1, lettera b-bis), del citato decreto legislativo. 5. Nei
casi previsti dal comma 4, lettere a), b), c) e d), l'efficacia esecutiva del provvedimento impugnato puo'
essere sospesa secondo quanto previsto dall'articolo 5. Quando l'istanza di sospensione viene accolta, al
ricorrente e' rilasciato un permesso di soggiorno per richiesta di asilo e ne viene disposta l'accoglienza ai sensi
dell'articolo 36 del decreto legislativo 28 gennaio 2008, n. 25.’
101
Article 20 (1) D.lgs. 25/2008: ‘ Il richiedente non può essere trattenuto al solo fine di esaminare la sua
domanda.’
102
Article 4 (1) D.lgs. 140 of 30 May 2005.
103
Article 20 (2) D.lgs. 25/2008: Il richiedente e' ospitato in un centro di accoglienza richiedenti asilo nei
32
a) If it is necessary either to verify or to determine his/her nationality or his/her identity,
when the person does not possess any identity or travel document or if he showed
false or counterfeited documents at his arrival at the border;
b) If he/she presented the request for international protection after the police stopped
him/her in the act of eluding or attempting to elude border controls or immediately
after;
c) If he/she presented the request for international protection after the police stopped
him/her and found out he/she did not have immigration status;104
The law states that in case (a) the asylum seeker must stay in a CARA for the time strictly
necessary to carry out the verifications and checks on his identity and nationality. In any case
this term must not exceed 20 days. In cases (b) and (c) the person must stay for the time
strictly necessary to process the request of international protection, which in any case must
not exceed 35 days. When the above mentioned terms expire, the questore must issue a
temporary residence permit valid for three months, renewable until the decision on the
request for international protection is taken by the Territorial Commission105.
If the person requesting international protection leaves the centre (CARA) without
justification, the reception conditions are interrupted and the Commissione Territoriale
decides on the request on the basis of the documents already produced or acquired (article 22
(2) Dlgs 25/2008).
The person requesting international protection can be detained in a CIE in the following
cases106:
seguenti casi:
a) quando e' necessario verificare o determinare la sua nazionalità o identità, ove lo stesso non sia in possesso
dei documenti di viaggio o di identità, ovvero al suo arrivo nel territorio dello Stato abbia presentato documenti
risultati falsi o contraffatti;
b) quando ha presentato la domanda dopo essere stato fermato per aver eluso o tentato di eludere il controllo
di frontiera o subito dopo;
c) quando ha presentato la domanda dopo essere stato fermato in condizioni di soggiorno irregolare.’ The fact
that the person is retained in a CARA does not affect any of the guarantees connected to the request for
international protection.
104
The letter d): ‘If he presented the request after an expulsion order has been issued for the person or no
permission to enter has been given and the person has been sent back (under article 13 (2) (a) and (b) of Dlgs No
286 of 1998 and article 10 of Dlgs No 286/1998) even if he/she was already detained in one of the centres under
article 14 TU’ has been quashed by D.lgs. No 159/2008.
105
Article 20 (3) D.lgs. 25/2008: ‘Nel caso di cui al comma 2, lettera a), il richiedente e' ospitato nel centro per
il tempo strettamente necessario agli adempimenti ivi previsti e, in ogni caso, per un periodo non superiore a
venti giorni. Negli altri casi il richiedente e' ospitato nel centro per il tempo strettamente necessario all'esame
della domanda innanzi alla commissione territoriale e, in ogni caso, per un periodo non superiore a trentacinque
giorni. Allo scadere del periodo di accoglienza al richiedente e' rilasciato un permesso di soggiorno temporaneo
valido tre mesi, rinnovabile fino alla decisione della domanda.’
106
Article 21 (1) of D.lgs. No 25/2008, as amended by D.lgs. No 159/2008: E' disposto il trattenimento, nei
centri di cui all'articolo 14 del decreto legislativo 25 luglio 1998, n. 286, del richiedente:
33
a) If the conditions provided by article 1 (f) of the Geneva Convention on the status of
refugees (serious reasons to believe that the person has committed a serious non
political crime outside the country of refuge prior to his admission to that country as a
refugee; he is guilty of acts contrary to the purposes and principles of the UN – for
example he committed crimes against humanity, against peace or war crimes) are
present;
b) If the person was sentenced in Italy for one of the crimes ex art 380 (1)(2) of the
criminal procedure code (crimes for which the police must/is allowed to arrest the
person in flagrancy, which are related to narcotic; sexual freedom; aiding illegal
immigration to Italy or illegal migration from Italy to other countries, or for crimes
related to the recruitment of people for prostitution, its exploitation or to the
recruitment of minor for illegal activities);
c) If an expulsion order has been issued for the person, or if the person person has been
reached by a removal order.
In those cases the questore issues a detention order following the procedure set for the
administrative detention of illegally staying TCN (Article 14 TU (1)).
When the asylum seeker is detained in a CIE or a CARA, the questore issues a nominal
certificate, attesting his status, indicating the name of the centre where the person stays107.
The D.lgs. No 159/2008 increased the number of cases in which an asylum seeker can be
detained, by adding to Article 21 (1) (c) the case in which the person was reached by a
removal order, in addition to the case in which the person has been reached by an expulsion
order. The same law provided that the appeal against the initial negative decision on the
request for international protection no longer suspended the effects of the decision (execution
of the removal) in all cases (see note 99 above).
The Commissioner for human rights of the Council of Europe already in 2011 denounced
serious problems related to the detention of asylum seekers in the CIEs108. The main critique
a) che si trova nelle condizioni previste dall'articolo 1, paragrafo F, della Convenzione di Ginevra;
b) che e' stato condannato in Italia per uno dei delitti indicati dall'articolo 380, commi 1 e 2, del codice di
procedura penale, ovvero per reati inerenti agli stupefacenti, alla libertà sessuale, al favoreggiamento
dell'immigrazione clandestina verso l'Italia e dell'emigrazione clandestina dall'Italia verso altri Stati, o per reati
diretti al reclutamento di persone da destinare alla prostituzione o allo sfruttamento della prostituzione o di
minori da impiegare in attività illecite;
c) che e' destinatario di un provvedimento di espulsione o di respingimento.
107
Article 4 (2) D.lgs. No 140 of 30 May 2005.
108
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214246
0&SecMode=1&DocId=1925946&Usage=2, at 168 (accessed 20 April 2013).
34
in this respect is that there is no record of the number of asylum seekers detained, and of the
number of the requests for international protection by the detainees. UNHCR denounced
irregularities and shortcomings in the formalization of requests for international protection by
people detained in CIEs, due to the lack of adequate information and legal assistance, but also
due to obstacles of bureaucratic nature109. The Commissioner recommended that Italian
authorities ensure that the request for international protection is registered without delay and
that the person requesting international protection is provided with adequate information on
the procedure and with legal assistance110.
If a person requests international protection while in administrative detention, the questore
requests the Tribunal (single judge) an extension of detention for further 30 days in order to
carry out the examination of the request (through the esame prioritario or 'accelerated
procedure'; article 28 D.Lgs 25/2008). If the request is validated the person stays in detention.
The communications concerning the proceedings must be sent to the address of the centre
where the requesting person is detained.
In 2007 the Commissione De Mistura pointed out that on the basis of the data available to the
commission at the time, among the migrants who requested asylum after receiving an
expulsion decree a high number was then recognized refugee status. In the view of the
commission, the migrants request asylum at a later stage because they do not receive
appropriate information or guidance before the notification of the expulsion decree. As a
result of misinformation, potential asylum seekers are held in administrative detention. In the
view of the commission this could and should be avoided111.
When the maximum terms for the detention in a CIE or permanence in a CARA expires, the
asylum seeker must inform the Questura and the Commissione Territoriale of his new
address and the communications related to the proceedings for the recognition of
international protection must be sent to the new address. If the person does not provide any
address, the communications must be sent to the person’s last address (article 22 (1) Dlgs
25/2008).
109
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214246
0&SecMode=1&DocId=1925946&Usage=2, at 169 (accessed 20 April 2013).
110
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214246
0&SecMode=1&DocId=1925946&Usage=2, at 181 (accessed 20 April 2013).
111
http://www.cestim.it/argomenti/25cpt/2007_01_rapporto_commissione_de_mistura.pdf, p. 20 (accessed 20
April 2013).
35
There are special rules set out for unaccompanied minors requesting international protection.
When the request is presented, the authorities put the proceedings on hold and inform the
Tribunale per i minorenni and the Giudice tutelare. The Tribunal nominates a tutore
(tutor/guardian or advisor) who immediately contacts the Questura, in order to confirm the
request and carry on with the proceedings (Article 26 (5) Dlgs 25/2008). At the time of the
request, the authorities must immediately inform the Servizio Centrale del sistema di
protezione per i richiedenti asilo e rifugiati (SPRAR)112 so that the minor can be received in
one of the facilities set up for the reception of asylum seekers and refugees. In case the
requesting minor cannot be received in one of the SPRAR facilities, the Major of the
municipality where the minor is present has a positive obligation to provide reception and
assistance to the minor. The law prohibits in any case to put an unaccompanied minor
requesting international protection either in a CARA or in a CIE (article 26 (6) Dlgs
25/2008).
_5.1_Accelerated procedure: grounds
When a request for international protection is made, the Questura sends it to the competent
Commissione Terriotriale. In the following cases the Commissione Territoriale must examine
the request for international protection following the accelerated procedure (in via
prioritaria)113:
a) The request is manifestly founded;
b) The person requesting international protection qualifies as vulnerable person as he/she
belongs to one of the categories listed in article 8 of D.lgs. 140/2005 (unaccompanied
minors; disabled persons, elderly, pregnant women, single parent with child/children,
victims of torture, rape, or severe physical, psychological or sexual violence);
c) The person requesting international protection is retained/detained in a CIE or a CARA
under articles 20 and 21 of D.lgs. 25/2008 (see § 4 above), unless the reception was
disposed in order to verify or ascertain the identity of the requesting person.
In case the person is detained in a CIE the Commissione Territoriale must carry out the
personal interview within 7 days from the reception of the request from the Questura. The
Commissione territoriale in this case must decide within 2 days after the interview (article 28
(2) Dlgs 25/2008).
The Territorial Commission declares the request inadmissible and does not carry out its
112
See article 1-sexies of D.L. No 416 of 30 December 1989, n. 416, converted and modified by L. No 39 of 28
February 1990. The SPRAR is the system for the reception of asylum seekers who have not enough means to
provide for themselves. The overall system of reception for asylum seekers in Italy includes the Cara, SPRAR,
emergenza Nord Africa, multifunctional centres in the metropolitan areas of Rome, Milan Turin, and Florence.
These institutions are not operating in coordination among each other and the Conferenza delle Regioni held on
10 July 2012 advocated some form of cooperation/ coordination among them.
113
Article 28 (1) D.lgs. 25/2008.
36
examination if114:
a)The requesting person has been recognized as refugee by another State party to the
Geneva Convention and can still avail himself of the same protection.
b)The requesting person filed a request after the Commissione Territoriale decided on
the same case, and did not provide any new information or regarding his personal
condition or his Country of origin.
_6_The renewal/review of the decision to detain: cases, standards and maximum
duration of detention
When administrative detention was first instituted, a valid detention decree justified detention
for 20 days. This initial term could then be extended for further 10 days if the elimination of
the obstacles impeding the repatriation was imminent (Article 12 (5) L. No 40/1998).
Progressively in time the duration of detention following the first decision to detain was
extended to 30 days and the circumstances in which it was possible to request an extension of
the initial term were increased115 (see Chapter I § 1).
Currently, the first detention order duly validated by the giudice di pace, constitutes the title
to detain a person in a CIE for 30 days. Administrative detention can be extended for the first
time for further 30 days116. The request for the first extension of administrative detention is
114
Article 29 D.lgs. 25/2008.
The TU originally provided duration of 20 days for the first decision to detain. Detention could be extended
once for further 20 days. L. No 189/2002 (also called 'Bossi-Fini' law) extended the duration of detention to a
maximum of 60 days: 30 days following the first decision to detain validated by the judicial authority, with the
possibility of one extension for further 30 days 'when the verification on the identity or the nationality of the
person is seriously difficult' (Article 13 (1) L. No 189/2002). Law No 94 of 15 July 2009, called ‘pacchetto
sicurezza’ (security package), article 1 (22), maintained 30 days for the initial detention but extended to 60 days
the duration of further prorogations of the detention, setting the maximum duration of detention in 180 days.
The D. L. No 89/2011 (transposing the return directive into the Italian system) amended article 14 (5) TU and
extended the maximum duration of detention to 18 months.
115
116
The wording of the law in force concerning the length and prorogations of detention is the following: ‘5. La
convalida comporta la permanenza nel centro per un periodo di complessivi trenta giorni. Qualora
l'accertamento dell'identità e della nazionalità ovvero l'acquisizione di documenti per il viaggio presenti gravi
difficoltà, il giudice, su richiesta del questore, può prorogare il termine di ulteriori trenta giorni. Anche prima di
tale termine, il questore esegue l'espulsione o il respingimento, dandone comunicazione senza ritardo al giudice.
Trascorso tale termine, qualora permangano le condizioni indicate al comma 1, il questore può chiedere al
giudice di pace la proroga del trattenimento per un periodo ulteriore disessanta giorni. Qualora persistono le
condizioni di cui al quarto periodo, il questore può chiedere al giudice un'ulteriore proroga di sessanta giorni. Il
periodo massimo complessivo di trattenimento non può essere superiore a centottanta giorni. Qualora non
siatato possibile procedere all'allontanamento, nonostante sia stato compiuto ogni ragionevole sforzo, a causa
della mancata cooperazione al rimpatrio del cittadino del Paese terzo interessato o di ritardi nell'ottenimento
della necessaria documentazione dai Paesi terzi, il questore può chiedere al giudice di pace la proroga del
trattenimento, di volta in volta, per periodi non superiori a sessanta giorni, fino ad un termine massimo di
37
justified if it is still not possible to accompany the person at the border due to ‘serious
difficulties in verifying the identity or the nationality of the detainee or in obtaining a travel
document’117. Once this term expired, if the difficulties persist and the obstacles are not
removed, the questore may request a further extension of administrative detention for 60
days118. If, at the end of this term the same difficulties persist, the questore may request an
additional extension of administrative detention for further 60 days. If, at the end of the first
180 days of detention (30+30+60+60), notwithstanding the fact that 'any possible effort' was
made by the administrative authorities, the removal cannot be carried out either because the
person concerned is not cooperating or because there are delays in acquiring the necessary
documentation from the country of origin, the questore can request further extensions for 60
days each, up to a maximum of 12 months119. The maximum period for administrative
detention is 18 months in total120.
The first decision to detain and further extensions must be validated by the judge after an oral
hearing. In order to obtain an extension of detention, the questore submits a request for
extension to the giudice di pace for validation. If the judge validates the request, the person
stays in detention. In any case, the questore can carry out the removal at any time when the
obstacles cease, even before the new term expires, informing the giudice di pace without
delay.
The law does not require an oral hearing for the validation of the questore’s request to extend
detention. However, the Corte di Cassazione clarified that it would be in contrast with
superior constitutional dispositions to interpret the norms in the sense that they allow the
extension of detention to be granted without an oral hearing (ex multis Cassazione Prima
Sezione Civile No 4544, of 24 February 2010)121. Following this case-law, some judges set a
date for the validation hearing before deciding on the request for the extension of detention,
ulteriori dodici mesi. Il questore, in ogni caso, può eseguire l'espulsione e il respingimento anche prima della
scadenza del termine prorogato, dandone comunicazione senza ritardo al giudice dipace.’ (Article 14 (5) TU).
117
Article 14 (5) TU These two presupposition for the first renewal are narrower than those justifying the initial
decision to detain, however they potentially last longer. The judge in this case should only verify that the
impediment to accompanying the person at the border derives only from the need to verify the foreign person’s
identity or from the necessity to acquire the travel documents and that it constitutes a serious difficulty.
118
Article 14 (5) TU In this case the judge must verify that the difficulties which remain are the same which
were justifying the first and second period of detention, and not new ones.
119
Article 14 (5) TU In this case the judge would have to verify that evry reasonable effort has been done by the
questore to remove the obstacles impeding the removal, that the effort was reasonable considering the obstacles
to the removal and that the reasons for the permanent difficulty in removing the person are due to the lack of
cooperation by the person, for example because s/he withholds documents in her/his possession, or due to delays
exceeding the expected time for obtaining the documents (which the Italian authority should timely request).
120
Article 14 (5) TU.
121
The full text of this judgment is available here: http://www.eius.it/giurisprudenza/2010/012.asp (accessed 20
April 2013).
38
in order to ensure that the detainee is heard, that crossed examination (contraddittorio) takes
place to guarantee the right to defence. Italy is a civil law country; therefore judicial
precedents are not binding as in common law countries. Consequently, compliance with the
rule stated by the Cassazione is very uneven: some judges decide to hold a validation hearing
while others decide on the extension request without holding a validation hearing.
Article 32 of l. No189 of 2002 introduced the simplified procedure for recognition of asylum
and established the possibility to detain the asylum seeker in a detention centre for 30 days.
The law refers to article 14 TU for the procedure to dispose administirative detention. As
such the validation regime for the initial decision to detain should be the same as for the
detention of irregular migrants who do not request asylum (see § 4 above)122. The judge must
validate the detention decree and the request to extend detention; the detainee has the right to
appeal against the judge’s validation and extension decrees in front of the Corte di
Cassazione. The law in 2002 provided that the detention could be extended for further 30
days. D.P.R. No 303 of 2004, implementing law No 189/2002 did not provide anything in
relation to the procedure for validation and extension of the detention in case of simplified
procedure to require asylum.
If the person violates the conditions of the detention order, that is, if the person escapes, the
questore restores the detention by adopting another measure (article 14 (7) TU). The new
period of detention is counted in the maximum duration of detention of 18 months indicated
in article 14 (5) TU.
Article 15 (4) of the Returns Directive provides that when there is not any reasonable
prospect of removal for legal reasons, or other kind of reasons, or that there are not anymore
the impediments to removal ceased, detention is no longer justified and the person must be
immediately released. This provision has not been transposed into Italian law, however, this
norm is directly enforceable in the national system and should be applied as self-executing123.
The judge should therefore assess whether there are obstacles to the removal, whether any
reasonable effort to overcome them has been made, but also whether there are or not
reasonable perspectives to carry out the removal. In fact, if there are permanent obstacles to
removal and there is no reasonable prospect that the person can be removed in the future, the
person should be released. For example, the special rapporteur for the Commission of Human
Rights François Crépeau reported that in Bari, the practice is that if a person is not identified
after six months, this person is released, even if the law allows to detain an illegal migrant up
to 18 months. In Trapani, by contrast, a Tunisian citizen met his Country’s authorities 14
122
For asylum seekers, the appeal against the decision on the request for international protection is decided by
the Tribunal and not by the giudice di pace (the procedure has been amended by article 35 c 19 (d) of D.lgs
150/2011). Even if the person, after requesting asylum, has a different status than a foreign irregular migrant, the
guarantees of judicial control of the decision to detain remain the same as for other irregular migrants: for
example, the competence to validate the detention order remains that of the giudice di pace, which is an
honorary judge, and offers a lower guarantee than the ordinary Tribunal.
123
See http://www.altrodiritto.unifi.it/ricerche/migranti/happache/cap6.htm (accessed 20 April 2013) for a
commentary on the transposition of the ‘Returns’ Directive in the Italian legal system.
39
times without them confirming his identity. This person therefore remained in detention
without any reasonable prospect for release. The special rapporteur also recommends that the
border agency within prisons should identify illegal migrants who are detained there
immediately, otherwise they end up serving a double sentence: one in the CIE and one in
prison124.
When the migrant does not possess any valid ID, there is the need to identify the person.
Identification procedures may take a long time. In such cases, the justification for detention
may be the delay of diplomatic authorities in carrying out the identification procedures. In a
note dated 8 August 2011, the assistant vice-questore remarked that each individual local
office is authorized by the Dirigente del servizio immigrazione della Direzione Centrale to
provide the giudice di pace with information on the situation concerning the consular
identification of citizens who claimed to be citizens from Tunisia and who are detained in a
CIE. In the note, the vice-prefetto indicated that the telex transmissions to Tunisian authorities
of the decision to accompany a person at the border should constitute a sufficient proof that
justifies the extension of detention for claiming Tunisian citizens, because this would show
that the authorities are in the process of identifying the irregular migrants. The note invited
the judges to concede the extension of detention so that the Direzione could carry on with the
work and maintain good relationships with Tunisia.
_6_1_Selected Case-law
Italian law does not explicitly require an oral hearing to validate the questore’s request for the
extension of administrative detention, and does not specify the legal standards for the judicial
validation of this request. The Corte di Cassazione with two recent judgments clarified that
an oral hearing must be held before the validation of the extension request (Sezione Prima
Civile No 4544 of 24 February 2010 and No 4869 of 1 March 2010). The parties in those
cases appealed against the measure ordering the extension of detention, based on article 21
(2) d.lgs No 25/08 (detention of asylum seeker) in one instance, and on article 14 (5) TU
(detention of irregular migrant) in the other. In the first case the extension of detention was
justified by the need to complete the examination of the asylum request (through the
accelerated procedure) and in the other case the justification of the extension was the need to
carry on further checks on the identity of the person concerned. The appellants claimed that
the extension was illegitimate because the appellants and their defence lawyers were not
heard by the judge before the validation of the measure. This seriously violated their right of
defence. The Court held that an informal procedure for the validation of the extension request
without the necessary participation of the defence lawyer, and without the possibility for the
person concerned to be interviewed by the judge was ‘patently against constitutional norms’,
as violating the right of defence (guaranteed by article 24 Constitution) and the principles of
the due process of law (Article 111 Constitution)125. The Court stated that the extension of
124
Report of the Special Rapporteur on the human rights of migrants, François Crépeau, 2 April 2012, available
at: http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=502e0bb62 (accessed 20 April 2013).
125
In the words of the Court: ‘Devesi premettere che sarebbe di solare evidenza la incostituzionalità della lettura
della norma sulla proroga che facesse di essa un meccanismo di controllo officioso della richiesta, al di fuori
40
administrative detention must be confirmed by the competent judge after an oral hearing at
the presence of the person concerned, unless this person waives this right, with full respect of
the right of defence, and with the necessary participation of the detainee’s defence lawyer. In
the motivation, the Court specified that a different interpretation of the law would be
unreasonable. In fact, it would be contradictory not to apply the same guarantees provided for
the validation of the first decision to detain126 to the extension of detention, in both cases
resulting in the limitation of liberty of the person concerned127. Consequently, this person
must be given the possibility to be heard by the judge, a basic and fundamental principle of
natural justice.
The Court set the following standards which have to be respected by the public
administration (questore):
a) the questore must send the request along with the supporting documents to the
competent giudice di pace allowing reasonable time in order to complete the
procedure before the original term for detention expires;
b) the judge must promptly set a date for the hearing, inform the parties and the person
concerned;
c) the hearing must take place and the judge must issue a motivated decree before the
original expiry date;
d) if the initial term for detention expired before the validation hearing took place, the
delle garanzie della difesa nel regolare contraddittorio e con possibilità di audizione dell'interessato: i principii
dettati dalla sentenza n. 222 del 2004 e prontamente recepiti dal legislatore del 2004, per i quali il
contraddittorio è garanzia indefettibile le volte in cui il soggetto debba essere pur temporaneamente ristretto in
stato di limitazione della libertà, non possono essere applicati per la convalida (di durata oggi non superiore a 30
giorni) e ignorati per la proroga, di altri 30 giorni per i trattenuti in richiesta di asilo, e che, nelle sue tre
scansioni per il trattenimento pre espulsivo, perviene a giorni 150 di durata ulteriore.’ The full text of the
judgment is available here: http://www.eius.it/giurisprudenza/2010/012.asp (accessed 20 April 2013).
126
The obligation to hold a validation hearing was introduced by L. No 271/2004, following judgment 222/2004
by the Corte costituzionale, where the Court affirmed that the discipline on the validation of the detention decree
violated the fundamental right of defence as it did not guaranteed the possibility for the person concerned to be
interviewed by the judge at the presence of the defence lawyer.
127
In the words of the Corte di Cassazione: ‘L'incidenza evidente di tal interpretazione sull'art. 24 Cost. si
accoppierebbe ad una macroscopica disparità di trattamento (art. 3 Cost.), ove si riservasse il pieno
contraddittorio e l'adeguata difesa alla verifica delle condizioni di accesso alla misura e si affidasse al singolare
colloquio cartaceo tra Amministrazione e giudice di pace il controllo della permanenza e dell'aggravamento
delle condizioni autorizzanti la protrazione del vincolo (cfr. il testo vigente dell'art. 14, comma 4, con le
modifiche apportate dalla legge del 2009). /Ma non ritiene il Collegio che siffatta conclusione debba essere
attinta sulla base della lettura delle norme sopra esposte né che, pertanto, la strada della rimessione alla Corte
Costituzionale, come proposto con il terzo motivo del ricorso, sia la strada obbligata: a tanto non si perviene infatti - là dove sia possibile una lettura secundum constitutionem delle norme, una lettura che la disamina
attenta
e
sistematica
delle
norme
stesse
consente
senza
difficoltà.’
http://www.eius.it/giurisprudenza/2010/012.asp (accessed 20 April 2013).
41
person must be released.
The Cassazione’s view, these hearings cannot be postponed (Cass civ. 4544/2010).
The Court recalled that although the Return Directive was not yet transposed into the Italian
system, article 15 (2)128 of the same is a self executing norm and therefore should be applied.
The administration and the judiciary do not constantly and uniformly apply the principles and
standards indicated by the Corte di Cassazione in the above mentioned judgments.129
On 9 June 2011, the giudice di pace of Palazzo San Gervasio approved a request of extension
submitted by the questore. The judge disposed the extension of administrative detention for
30 days in the CIE of Palazzo San Gervasio for 57 Tunisian citizens because the requisites for
extension provided by the law were verified. In this case, the motivation merely reports the
content of the norms, therefore this decision should not be considered sufficiently motivated.
Moreover, in this case the specific adjudicating function seems to be flattened on the
administrative function.
In the case No 13767 of 8 June 2010, the Corte di Cassazione affirmed once again that the
judge must receive the extension request and all the supporting documents by the questore
before the expiry of the original period of detention, to allow time for the convocation of the
defence lawyer and the concerned person at the validation hearing on the date set by the
judge within the 48 hours from the reception of the request as it is provided by the law. The
court established that the judge must deposit the validation decree within 48 hours from the
request and before the expiry of the original term for detention.
In a case decided recently (case No 8026/2012)130 the Tribunal in Torino decided on the
request for extension of detention, motivated by the fact that the person in detention
requested international protection. In this case the law provides that the questore requests the
extension of detention for 30 days while the request for international protection is being
processed through the accelerated procedure (see § 5 and 5.1 above). The person requesting
128
Article 15 (2) Return Directive states: ‘Detention shall be ordered by administrative or judicial authorities.
Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been
ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the
lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the
third-country national concerned the right to take proceedings by means of which the lawfulness of detention
shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the
relevant proceedings. In such a case Member States shall immediately inform the third-country national
concerned about the possibility of taking such proceedings. The third-country national concerned shall be
released immediately if the detention is not lawful.’
129
Guido Savio, La procedura di proroga del trattenimento alla verifica di legittimità, in Diritto, Immigrazione e
Cittadinanza, No 2, 2010.
130
http://www.asgi.it/public/parser_download/save/1_2012_tribunale_to_no_trattenimento.pdf (accessed 20
April 2013).
42
international protection requested the giudice di pace to suspend the effects of the expulsion
order and the judge granted the suspension. The Tribunal of Torino held that a valid and
effective expulsion order is a precondition for administrative detention. The effects of the
expulsion decree were suspended, therefore the precondition was lacking. Consequently, the
Tribunal did not validate the request for prorogation.
_7_Administrative discretion
Italian law attributes a certain degree of discretion to administrative authorities in relation to
the first decision to detain and the request(s) for its prorogation. The margin of discretion was
increased with recent amendments to the discipline on entry, stay and expulsion of migrants
by the L. No 94/2009 and L. No 129/2011. As mentioned above, the presupposition of the
first decision to detain is a valid expulsion decree issued by the prefetto or a valid decree
ordering to accompanying the person at the border in the case of ‘deferred push back' (see
above § 2.2) issued by the questore. The conditions for issuing a valid detention degree are
set in article 14 (1) TU. The original formulation of this norm specified a list of
circumstances in which the questore could lawfully order to detain a person. This list
included: the need to rescue; the need to carry out further verifications in order to determine
identity or nationality; the need obtain travel documents; the unavailability of a suitable
carrier or any other suitable transportation’. The L. No 129/2011 amended article 14 (1) TU.
The current wording of this article only exemplifies the circumstances which qualify as
‘impediments’ to carry out immediately expulsion or deferred push back, and which therefore
justify the detention order. In the amended version of article 14 (1) TU, the exemplification of
circumstances justifying the detention includes: the existence of a risk of absconding131 ; the
need to rescue the person; the need to carry out further checks on the identity or nationality of
the person, the need to acquire travel documents or to provide a suitable carrier. Other
circumstances may potentially justify a decision to detain. As such, the administrative
authorities' discretion in this respect has been significantly widened.
In addition to that, while detention of irregular migrants reached by an expulsion order was
originally provided as a discretional measure, the ‘Bossi-Fini law’ (in 2002) made it
obligatory to dispose detention if the circumstances provided by law occur.
The new formulation of article 14(1) TU appears to be in conflict with the principle of
legality. In fact, any measure entailing a limitation of liberty issued by a public authority is
strictly subject to statutory reserve and therefore it must be regulated by a previously
promulgated ordinary law. In this case, by contrast, the determination of the circumstances
which can be lawfully regarded as ‘obstacles’ or ‘impediments’ and which justify detention is
131
The requirement to specify the cases in which the risk of escape has to be presumed is found in EU law.
Italian law specifies the cases in which the risk of escape must be presumed in Article 13 (4-bis) (see § 2.1
above). The way in which the obligation to specify the cases in which the risk of escape is presumed seems to be
in contrast with EU law. In fact, there is an absolute presumption that the risk of escape exists in one of the
circumstances provided by article 13 4-bis TU. Those circumstances are such that it seems that the risk of
escape is presumed whenever the measures imposing duties provided in the Repatriation Directive to reduce the
risk of escape are verified. The disposition of the directive is therefore reversed.
43
largely left to the administrative authorities’ determination and appreciation.
Administrative authorities also exercise a wide discretion when they request an extension of
detention. The evaluation of the existence of the presupposition to request the extension is
left to the questore. Under Eropean and Italian law, the administration must operate with
diligence in carrying out speedily the repatriation procedure. Italian law provides as a
condition to request the extension of detention that the administration made ‘any reasonable
effort’. The meaning of this expression, however, is not specified by law or regulations.
Another condition to request an extension is the ‘lack of cooperation to the repatriation’ from
the detainee. Again, the law does not clearly indicate the conduct or behaviour which may
reasonably show the detainee's intention to obstacle repatriation or to cooperate with the
authorities: law and regulations do not define when the cooperation of the foreign person
must be considered ‘insufficient’ or ‘lacking’.
A certain degree of control on the exercise of administrative discretion should be guaranteed
by the obligation to motivate the decree and the request for extension and by the procedure
for their verification by the judicial authorities. However, it has been denounced that in most
of the cases the motivation of the detention decree is standardized or it just reports the content
of legal dispositions132. Also, quite often the control by the giudice di pace does not
effectively verify whether any reasonable effort has been put in place by administrative
authorities in order to remove the obstacles to repatriation.
When an irregular migrant is caught by the police, normally they keep this person in
detention, usually at the police station, in order to carry out checks on the TCN's status and
identity (photo shot, fingerprint matching, etc.). This crucial and delicate phase is not
regulated by law as the dispositions of criminal law do not apply. Consequently, the
guarantees established by criminal law in order to protect the dignity and fundamental rights
of a person in the state of arrest are not applied.
In addition to that, in the enforcement of law the public security authorities exercise wide
discretion often unrestrained by external control.
The decision on the particular CIE where the TCN is to be detained is left to the complete
discretion of the administration. The law expressly excludes this decision from judicial
control (Article 14 (1) TU). The law also provides that appeals against the detention decree
must be filed to the giudice di pace of the place where the prefetto who issued the expulsion
order is located – the presupposition of the detention. Before 2004, article 13 TU provided
that the appeal could be filed alternatively to the giudice di pace in the place where the
person was detained or in the place where the prefetto who issued the expulsion order had his
office. If these two places are different, it may become very difficult for the defence lawyer of
the detainee to file the appeal against the detention order in a different place. As a
132
Interview with Avvocato Giuseppe Buscaino, senior immigration lawyer practicing in Trapani, Italy, 27
December 2012.
44
consequence, the detainee is in fact deprived of the enjoyment of his defence rights. The
amendments widened to a great extent the discretion of the administration, frustrating
legitimate rights of the migrants.
The law clearly states that administrative detention can only take place in the CIEs. This
notwithstanding, irregular migrants have been detained unlawfully in police stations. In fact,
in some cases public order authorities keep a person in custody without issuing any measure
restricting personal freedom, in some other cases the measure is issued, but it is not validated
by a judge within 48 hours. In both circumstances the TCN's detention is unlawful. As a
result, there have been episodes of self-inflicted desperate violence: suicides, attempts at
suicide, self-mutilation. Arbitrary detention in the security rooms of the Questura (the offices
of the police) and in reception centres (CPSA centres of first rescue and reception), for
example in Pozzallo, Sicily, have been reported133. It has been reported that in the CPSA in
Lampedusa minors have been kept for more than 48 hours in a centre with adults134. In 2011
was set up a camp on a landing field no longer in use in contrada Kinisia, a place between
Trapani and Mazzara del Vallo in Western Sicily. This camp was used as a CIE until the
construction of the new CIE in contrada Milo was completed in 2012.
During the emergency caused by the massive influx of migrants from North Africa, a
reception centre was set up in a camp used to play sport near Mazzara del Vallo, as well as in
Pozzallo and Capo Pachino. These camps are not legally qualified as detention centres,
therefore the authorities escape the obligation to respect the time limits, the procedures and
the guarantees provided by law in relation to administrative detention. In all the cases
mentioned above the limitation of the irregular migrant's liberty is unlawful and arbitrary.
Fulvio Vassallo Paleologo denounces a practice by public order authorities, which unjustly
discriminate on the basis of nationality. The authorities apply a sort of ‘economic migrant’
presumption based on nationality and deem that migrant coming from Tunisia and Egypt are
economic migrants and not asylum seekers135. Therefore, these migrants are pushed back
immediately if they lack the legal requisites to enter or stay and there is the risk of violating
international norms.
In the enforcement of law public security authorities in charge of keeping order within the
CIEs exercise a wide and uncontrolled discretion. The functioning and the rules concerning
any aspect of the life within detention centres are decided by the prefetto in agreement with
the questore and in compliance with the directives of the Ministry of Interior (Article 21 (8)
133
Available
at:
http://www.corriereimmigrazione.it/ci/2012/09/sbarchi-e-detenzioni-arbitrari/;
http://espresso.repubblica.it/dettaglio/io-clandestino-a-lampedusa/2104770//7 both accessed 20 April 2013.
134
Available
at:
http://www.corriereimmigrazione.it/ci/2012/09/sbarchi-e-detenzioni-arbitrari/;
http://espresso.repubblica.it/dettaglio/io-clandestino-a-lampedusa/2104770//7 both accessed 20 April 2013.
135
Available
at:
http://www.corriereimmigrazione.it/ci/2012/09/sbarchi-e-detenzioni-arbitrari/;
http://espresso.repubblica.it/dettaglio/io-clandestino-a-lampedusa/2104770//7 both accessed 20 April 2013.
45
DPR No 394/1999, the regulation implementing the TU). The questore is allowed to use
public force to prevent the persons detained in a CIE to leave the center. The rules and the
measures on security, public order, identification of the persons and security in accessing the
centre, as well as the measures to impede that detainees escape or to restore detention after
the detainee escaped are issued by the questore (Article 21 (9) DPR No 394/1999) who is
responsible of the detention centres’ functioning. There is a broad delegation of powers to the
police concerning the ways to carry on the surveillance in the centres, and the ways to restore
the measures restricting personal freedom in case detainees attempt to escape. The law does
not prescribe judicial control of the measures taken by the police concerning security and
order within the CIE.
8_Is administrative detention effective? Proposals for reform
In 2012 the overall number of migrants held in administrative detention in the CIE on the
Italian territory was of 7.944 (7.012 men and 932 women) . Approximatively half of them,
4.015 in total, were repatriated136.
In 2011, 7.735 migrants were detained in CIEs (6.832 men and 903 women) across Italy. In
total, 3.880 of them have been repatriated137. According to MEDU, administrative detention
proved not to be effective for the pursposes of repatriation.
It is very difficult to have a truthful estimate of the number of illegal migrants present on the
Italian territory. According to ISMU (Iniziative di studi sulla multietnicita' Initiative of
studies upon multiethnicity), the number of persons without immigration status on 1 January
2012 was of 326.000138. Comparing the ratio between the total number of irregular migrants
and the overall number of TCN repatriated following administrative detention (4.015) in
2012, it seems that administrative detention is not effective in contrasting irregular migration.
This can also be said for 2011 when the total number of irregular migrants on the Italian
territory was 443.000 (data supplied by ISMU) and the total number of of people repatriated
through CIE was 3.880 (data supplied by MEDU).
According to Medici per i Diritti Umani (MEDU) the proportion of detained migrants
repatriated in 2008, when the maximum lenght of administrative detention was 60 days, was
higher than that in 2012, when the maximum lenght of detention was extended up to 18
months. In fact, in 2008, the overall number of detained migrants was of 10.539 people,
4320 of them were effectively repatriated.
136
Available at http://www.mediciperidirittiumani.org/comunicato_30_gen2_13.html, accessed 20 April 2013.
137
Data
from
MEDU’s
report
L’iniquo
ingranaggio
dei
CIE
available
http://www.mediciperidirittiumani.org/pdf/LINIQUO_INGRANAGGIO.pdf, accessed 20 April 2013.
here
See also: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004444, accessed 20 April 2013.
138
Source: data supplied by the state police to the NGO Medici per i Diritti Umani (MEDU), which included
these data in their last report available here:
http://www.mediciperidirittiumani.org/pdf/Tabella_comparativa_2011-2012.pdf (accessed 20 April 2013).
46
The ratio between detainees effectivly repatriated and total number of detainees has
increased of 2,3% in 2011 compared to 2010 (when the maximum lenght of administrative
detention was of six months). In 2012 compared to 2011, this rapport was of 0,3% only. This
is a further proof of the inefficacy of the increased lenght of administrative detention.
MEDU points out that the efficiency of administrative detention, understood as the ratio
between number of detainees and number of repatriations effectively carried out, varies
according to the nationality of the detainees. For example, in 2011 it was 83% for Albanian
citizens and 35% for Chinese citizens. In consideration of this, MEDU concludes that the
possibility to effectively carry out the expulsion seems to depend more on the cooperation of
the TCN’s countries of origins towards repatriation than on the possibility to extend the
period of detention up to 18 months.
According to MEDU, detention is also ineffective as a mean to contrast illegal immigration
as seems not to represent a deterrent to illegal migration. Instead, the report denounces how
administrative detention in the CIEs stigmatizes the migrant as it transmits to the public
opinion the wrong association between criminality and migration (or irregular migration).
Therefore it should be avoided.
Medu criticises the extension of the maximum lenght of detention to 18 months for yet
another reason. In their report, Medu indicates that when migrants stay in a detention centre
for a prolonged period of time, it is more likely that there will be tension and occurrences of
riots. In total episodes of violence increased within the centres. Moreover, the extension of
the maximum lenght of detention to 18 months has the effect of potentially keeping the
migrant in detention for longer in circumstances where their fundamental rights are likely to
be violated.
A high number of detainees attempt escaping from the CIE where they are restricted. The
number of people attempting or actually escaping from detention increased: 787 migrants
escaped from a CIE in 2011 compared to 321 in 2010. In 2012, a total 1049 migrants escaped
the centres and were not captured by the police139. According to Medu, the percentage of
people who escaped increased of 33% compared to 2011140.
Particularly disconcerting is the number of EU citizens detained in CIEs: in 2011 494
Romenian citizens were held in administrative detention141.
In the light of data from 2011 and in consideration of the serious problems generated by the
system of administrative detention over the years, MEDU ‘deems necessary to abandon the
current system of administrative detention and a substantive and comprehensive revision of
139
See: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004975 accessed 20 April 2013.
140
See: http://www.mediciperidirittiumani.org/comunicato_30_gen2_13.html;
http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004975 both accessed 20 April 2013.
141
European citizens can be expelled for reasons of national security, public security and public order.
47
the fundamental law on immigration’142.
The efficacy of CIEs should be assessed in relation to factors which are not directly related to
the application of the measure of detention, such as the existence of readmission agreements
with the country of origin; the degree of cooperation of the consolar authorities, the
cooperation of the detainee.
The efficacy of detention should be assessed taking into consideration the number of removal
and detainees per country of origin143. In fact, some detaines are never repatriated for reasons
linked to their nationality or origin. For them, detention is of no use. In addition to that, a
cospiquous number of migrants held in administrative detention are ex detainees who were
not identified whilst they were serving their criminal sentence144. (see below Proposal for
reform)
The costs of CIEs
A comprehensive analysis of the costs of CIEs should take into account the expenses and the
efficacy of administrative detention as a mean to execute repatriation. The Commissione De
Mistura in 2007 strongly recommended to carry out a thorough analysis, which was not
available at the time, reckoning that the costs of the CIEs is high. Through a more efficient
use of the detention centres, according to the Commissione’s report, it would be possible to
reinforce reception measures and measures alternative to expulsion145. The commission was
of the view that the extension of the maximum term of detention did not balance the overall
costs for each detainee.
According to a non comprehensive study carried out by Andrea Stuppini, the main costs of
the CIEs are represented by the costs of construction/renovation of the buildings where
administrative detention takes place; the costs for the centre’s management and the expenses
for repatriation. Normally, former barrakcs are renovated and destined to administrative
detention. The expenses for construction and renovation (which are una tantum) are estimated
around 140 milion of euros approximately. This does not include expenses for renovation of
the centres damaged as a result of fire or episodes of riots.
142
The full report is available at http://www.mediciperidirittiumani.org/pdf/LINIQUO_INGRANAGGIO.pdf
accessed 20 April 2013; see also http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004444 accessed
20 April 2013.
143
Available at: http://www.cestim.it/argomenti/25cpt/2007_01_rapporto_commissione_de_mistura.pdf p 17
(accessed 20 April 2013).
144
Available at: http://www.cestim.it/argomenti/25cpt/2007_01_rapporto_commissione_de_mistura.pdf p 17
(accessed 20 April 2013)..
145
Available at: http://www.cestim.it/argomenti/25cpt/2007_01_rapporto_commissione_de_mistura.pdf
(accessed 20 April 2013).
48
Stuppini estimates that management expenses amount to 30 million of euro per year146.
Andrea Stuppini estimates that the expenses for repatriation amount to approximately 34
million of euros in total every year147
As such, the total cost per annum is approximately of 204 million of euros per year.
Considering that construction/renovation is not an annual cost, the expenses amount
approximately to € 16.666 per detainee every year148.
Stuppini interestingly compares this cost with the expenses afforded by the municipalities for
social integration (cultural mediators, Italian language courses) of TCNs in Italy, which
amounted to 200 million of euros in 2010. The number of TCN allowed in the country was
of 100.000 (according to the decreto flussi). So the expenditure per person amounts
approximately to € 2.000 each year149 which can be said is the pro capite cost of the
integration policy.
The ratio between the cost per person for the CIE and the cost per person for integration is
8,3 to 1 (16.600 : 2.000). With the lowered treshold set in the public tenders, which is now of
10.500, the ratio would be 5,3 to 1 (10.555 : 2.000).
Proposals for reform
The low percentage of effective repatriations following administrative detention and the
shortcomings and insufficiencies of the repatriation system contribute to increase the overall
number of illegal migrants present on the Italian territory. Instead, if they were given the
possibility to become regular migrants, they could positively benefit the country in which
they work.
The Commissione De Mistura suggested in 2007 a few ideas to reform the system of
administrative detention. The principle suggested by the Commissione was to empty the
detention centres of those categories of persons who did not need to be held in detention,
such as: ex prisoners; people in need of social protection; family assistants who were
146
Approximately Euro 45 per person, which is now brought down to Euro 28,50 due to the reduction of the
tender’s offers times 1.800 places in total. When the procedure for the new tenders will be completed the total
amount of expenses for management will be around 19 million of euros. This does not include the cost for
public security agents.
147
The estimate is based on data collected in 2010, when 3.399 people were repatriated. The estimate includes
the costs of the fuel used by the carrier, of the airplain tickets for the migrant and two agents who accompany
the person to the country of origin.
148
This sum is obtained by dividing the annual expenses (amounting to 30 million euros) by the number of
places in the CIEs (1.800 in total). When the new tender procedures will be implemented the sum will be
reduced to 10.555 euros per detainee every year.
149
Al di fuori di essa vi sono solo i fondi europei per l’asilo ed i fondi del FEI per l’italiano, (entrambi gestiti
dal ministero degli Interni).
49
regularly employed and overstayed a visa.
Former prisoners
For former prisoners, the Commissione suggested that checks and verifications on identity
and nationality must be carried out whilst the person is serving the sentence, starting when
the person entres the prison. For the cases in which this is not possible for a justified reason
(for example the risk of persecution from the authorities in the Country of origin or the need
to receive necessary medical treatment), the commission proposes to issue a residence permit
for humanitarian reasons to the person.
The practice of bringing irregular migrants who served their sentence in prison to detention
centres is highly disfuncitonal as it extends without reason the limitation of freedom of the
person concerned and increases unnecessarily the overall costs of administrative detention.
There are not available data on the number of TCN who are held in administrative detention
right after serving their term of imprisonment. Certainly a high percentage of people detained
in CIEs has been previously held in criminal detention, both for crimes related to their
migration status and other crimes. The time spent in prison (sometimes longer than the
maximum lenght of administrative detention), is often of a suitable duration to initiate
identification and expulsion procedures. This practice would have at least two good effects:
fist, it would limit the deprivation of liberty for irregular migrants; second, it would
significantly reduce the costs of administrative detention as less people would be detained in
the CIEs150.
Recently the concerns of the commission have been raised by other organizations. IOM
recommends to create a permanent immigration police office within prisons. In that way there
would be the possibility of identifying the migrants while they are serving their sentence
avoiding the following period of detention in a detention centre for the need to carry out
further checks on the person's identity. The cooperation between the ministry of interior and
the ministry of justice would eliminate this practice of putting person in administrative
detention after criminal detention which realizes an irrational because unnecessary extension
of detention.
IOM recommends151 a) The promotion of a comprehensive legal regulation of fundamental
aspects of the life of migrants within the CIEs, like visits, legal assistance and the possibility
to communicate with the outstide.
b) to reduce the use of informal detention places (camps, gyms, etc.) where the migrants are
detained for several days whern they disembark on the Italian territory.
150
Available at: http://www.corriereimmigrazione.it/ci/2013/02/2012-un-altro-anno-nero-per-i-cie/ accessed 20
April 2013.
151
Available at: http://www.cirdi.org/documenti-internazionali/oim-rivedere-il-sistema-dei-cie-in-italia/
accessed 20 April 2013.
50
c) To guarantee the effective application of the Reeturns Directive, promoting voluntary
repatriation and the cancellation of the prohibition to enter the country subject to the
condition that the migrant cooperates to identification.
The UN Special Rapporteur on the human rights of migrants, François Crépeau, recently
visited Italy for a nine day mission. The Rapporteur urged the Italian authorities to “Develop
a speedier identification system, including commencing the identification of foreign inmates
whilst in prison, in order to make sure that detention of migrants for identification is limited
to the shortest time possible, with a maximum of 6 months152.
Persons in need of social protection
For people in need for social protection, for example victims of trafficking or severe labour
exploitation, the Commissione indicated that the interviews with the person in the view of
persuading her to initiate a social protection programme should take place outside the
detention facility. Consequently, these persons should not be detained.
Furthermore, persons with a serious illness should not be detained because this causes an
organizative burden on the centre’s management, but also because in case of repatriation the
person could be deprived of the necessary medical treatment if that is not available in his
country of origin and this would contrast with national and international norms. In regard to
this specific issue, Italian law appear to be unclear and excessive discretion is attributed to the
authorities.
The Commissione suggested to incentivate programs of agreed and assisted repatriation as an
alternative to forced expulsion and repatriation. If the person agrees to participate into a
program of assisted repatriation then this person should not be held in administrative
detention.
The Commissione specified that it is absolutely necessary that specifically trained staff
different from the police (psychologists, social workers, legal advisers, cultural and linguistic
mediators) be present in the Questure, at the borders and in the detention/reception centres. In
fact, their presence can facilitate a positive interaction with the foreign person.
The key point in the report is that ‘It is important to understand the peculiar psychological
condition of an economic migrant, who is seriously frustrated by the perspective of returning
the country of origin without the possiblity to realize his life project. Some kind of economic
support given to the migrant, and that would allow him to go back and start a new project of
employment in his home country should allow to accept agreed repatriation and to see it as an
effective and convenient measure. In order to avoid the risk of abuses (...) the assistance
agreed should only be bestowed once the person reached his country of origin. The assistance
152
Available at: http://oppenheimer.mcgill.ca/UN-Special-Rapporteur-urges-Italy; and
http://oppenheimer.mcgill.ca/UN-Special-Rapporteur-on-the-Human accessed 20 April 2013.
51
should aim at supporting a project for the reintegration in the community of origin (...)’153.
Overstayers
The Commissione suggests that TCNs who overstayed a working visa should not be held in
administrative detetnion, unless they constitute a danger for public order and public security.
Migrants in this category habitually lived and/or worked in Italy, sometimes for long periods
of time and only in a subsequent time they become irregular migrants. The solution proposed
by the commission is to issue a temporary residence permit as jobseekers. If, once the permit
expired, the person is not in regular work and there are no other reasons for granting him a
residence permit, a programme of voluntary assisted repatriation should be agreed with the
person. The advantage of adhering to this programme is that there is no prohibition to enter
the country again. If the irregular migrant overstayer does not want to participate into a
program of assisted repatriation the authorities can issue an expulsion order. If expulsion
cannot be carried out immediately, the irregular migrant overstayer can be detained for the
time strictly necessary for the execution of the removal and in any case for a period not
exceeding 5 days.
Permit ‘ad personam’
The Commission then suggests to introduce a residence permit ad personam. This residence
permit should be given to migrants outside the cases expressly provided by law, for example
if there are relatives living or residing regularly on the Italian territory, or if there are
vulnerable situations such as age, health conditions, the lenght of stay on the Italian territory.
Other proposals for reform
A number of associations working in the field of immigration advocate the full closure of
detention centres154. The president of the Unione delle Camere penali italiane, Valierio
Spigarelli, affirmed that the CIEs are ‘una bruttura da eliminare’155, as the conditions in the
administrative detntion centres are worse than those in a detention centre. Administrative
detention is not provided with the guarantees of criminal detention. For example, the
possibility of serve a lesser sentence in case of good conduct156. Lastly, UCPI’s president
reckons that the maximum lenght of detention of 18 months is not reasonable157.
Asgi requests that judicial validation of the detention request and extension of detention be
153
Availablae at: http://www.interno.gov.it/mininterno/export/sites/default/it/assets/files/1/2007131181826.pdf,
p. 28, accessed 20 April 2013.
154
Melting Pot, Asgi, MEDU,
155
Available at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004747 accessed 20 April 2013.
156
Available at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004747 accessed 20 April 2013.
157
Available at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004747 accessed 20 April 2013.
52
the competence of a professional judge instead of a honorary judge. It also requests: that
identification of persons who constitute a risk for social security be made during their
detention in prosons, avoiding administrative detention after the prison; limiting expulsion
and therefore administrative detention to cases in which the circumstances are particularly
serious; encourage an extensive use of voluntary repatriation; submit to the National
Parliament any riadmission agreement with Third Countries; abrogate the crimes punishing
unauthorized entry and stay158.
158
Available at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004909 accessed 20 April 2013
ASGI (Associazione studi giuridici sull’immigrazione) is a centre of study and research for immigration from a
legal perspective. ASGI legal experts elaborated a proposal for reforming the immigration system in Italy.
53
Chapter II
Procedural guarantees
_1_ The TCNs’ rights in the Constitution and the law
The protection of personal freedom from arbitrary arrest and detention in the Italian legal
system includes substantive rights and procedural safeguards with general subjective
application, and others specifically provided for foreigners both in the Constitution and in
ordinary law.
The Constitution enshrines the right of personal freedom (Article 13 Constitution) and
provides a number of general guarantees to protect this right, which are applicable to any
person under the Italian jurisdiction, including non-Italian citizens, whether they are legally
staying or not, in virtue of the principle of equality (formal and substantial, Article 3
Constitution). The clauses of the due process of law (Article 111) and, the guarantees of
defence rights (article 24) are applicable to persons in detention, including irregular migrants
and asylum seekers on the Italian territory.
Other constitutional dispositions regulate specifically the legal status of foreigners on the
Italian territory. Article 10 (1) (2) of the Italian Constitution prescribes that the national legal
system must ‘comply with generally recognized norms of international law’ and that ‘the
legal status of foreigners must be regulated by law in compliance with relevant international
norms and treaties. The right of asylum is provided by Article 10 (3) of the Italian
Constitution: ‘any foreigner to whom the effective enjoyment of the substance of the
democratic liberties and freedoms enshrined in the Italian Constitution is prevented in his
country of origin, has a right of asylum on the territory of the Italian Republic, in compliance
with the conditions established by ordinary law’159. This provision theoretically guarantees a
much wider protection compared to the provisions contained in the Geneva Convention on
the Status of Refugees. In fact, the right of asylum in the Italian Constitution covers virtually
the whole range of cases in which the effective exercise of any democratic freedom provided
in the Italian Constitution is precluded to any person in his County of origin. The
Constitution states that the conditions of this protection must be established by law. However,
this provision was not implemented and now the matter of asylum is mostly regulated by the
legislation transposing the Eropean asylum acquis in the Italian legal system. The Corte di
Cassazione held that article 10 (3) of the Constitution confers onto the asylum seeker a
directly enforceable individual right. Consequently, the asylum seeker could request
protection from the judge, notwithstanding the lack of implementing legislation (Cassazione,
Sezioni Unite cases No 4674/97 and No 907/99; Cassazione, sez. I, case No. 8423/04).
159
Art 10(3) Italian Constitution:‘lo straniero, al quale sia impedito nel suo Paese l’effettivo esercizio delle
libertà democratiche garantite dalla Costituzione italiana, ha diritto d’asilo nel territorio della Repubblica,
secondo le condizioni stabilite dalla legge.’
54
Article 13(1) of the Italian Constitution states: ‘Personal freedom is inviolable’160. Exceptions
to this principle are justified only in the cases and in the ways expressly provided by a
publicly promulgated law and through a motivated written decision issued by a judge (Article
13 (2) Constitution)161. The application of the principle of legality to personal freedom is
particularly strict. Only in exceptional cases when the matter is urgent and the limitation of
personal freedom is necessary, public administrative authorities (instead of the judiciary) can
issue provisional measures restricting personal freedom. In those cases, the authorities must
inform the competent judge within 48 hours from the time when the measure was taken. The
judge must then validate the measure restricting personal freedom within the next 48 hours. If
the judge does not validate the measure, this ceases to be effective and must be considered
revoked (Article 13 (3) Constitution)162. There is a general prohibition to exercise any
physical or moral violence towards persons whose personal freedom is restricted at any title.
Any violation of this prohibition must be punished (Article 13 (4) Constitution)163. The law
sets limits to the use of detention as a preventative measure (Article 13 (5) Constitution).
Article 24 of the Italian Constitution enshrines the right to defence, which is inviolable in
every state and stage of judicial proceedings. Everyone can initiate judicial proceedings to
protect their rights and legitimate interests. The state guarantees this right to people who lack
sufficient means, undertaking the cost of the proceeding on their behalf (it is a form of legal
aid). The law provides for reparation in case of judicial errors. In general, the defence rights
provided in the Constitution are applicable to immigration proceedings.
The fundamental personal rights provided by domestic law, international conventions in force
and generally recognized principles of international law, must be recognized and guaranteed
to the foreign person who is on the Italian territory (Article 2 (1) TU). This includes the
defence rights and all the guarantees associated with the due process of law.
Ordinary law implements the right of defence for TCNs. For example, it requires the presence
of a defence lawyer at the validation hearing for the detention order and provides for legal aid
in case the person concerned is destitute (Article 14 (4) TU) (see below § 7). Also, ordinary
law provides that when a non-Italian citizen is either the victim or the accused person in
criminal proceedings, this person must be allowed to enter the territory of the state just for the
160
‘La libertà personale è inviolabile.’ Article 13 (1) Italian Constitution.
161
‘Non è ammessa forma alcuna di detenzione, di ispezione o perquisizione personale, né qualsiasi altra
restrizione della libertà personale, se non per atto motivato dell'autorità giudiziaria e nei soli casi e modi previsti
dalla legge .’ Article 13 (2) Italian Constitution.
162
‘In casi eccezionali di necessità ed urgenza, indicati tassativamente dalla legge l'autorità di pubblica
sicurezza può adottare provvedimenti provvisori, che devono essere comunicati entro quarantotto ore all'autorità
giudiziaria e, se questa non li convalida nelle successive quarantotto ore, si intendono revocati e restano privi di
ogni effetto.’ Article 13 (3) Italian Constitution.
163
‘E` punita ogni violenza fisica e morale sulle persone comunque sottoposte a restrizioni di libertà.’ Article
13(4) Italian Constitution.
55
purpose of participating to the proceedings, in order to exercise the right to defence. The
authorization to enter the territory is given by the questore upon request of the victim, the
accused person or the defence lawyer (Article 17(1) TU).
Article 111 of the Italian Constitution enshrines the principles and the guarantees of the due
process of law. This article disposes that the parties in legal proceedings are equal with regard
to their position and powers; the evidence is acquired through cross-examination; the trial
must have a reasonable length. The same article establishes further guarantees protecting the
rights of the accused person in a criminal trial. It indicates that any order or act of the
judiciary must be motivated (Article 111 (6) Constitution). An important procedural
guarantee is that ‘against all the judgments and the measures related to personal freedom,
issued either by ordinary judicial organs or by special judicial organs, it is always possible to
appeal to the Corte di Cassazione for ‘breach of law’. The only constitutional derogations to
this norm are the decisions of military tribunals in war time’ (Article 111 (7) Constitution).
Articles 2 and 3 of the Italian Constitution guarantee the dignity and equality (formal and
substantive) of every person. In virtue of these articles, the above mentioned provisions
constraining the public authorities’ power to restrict personal freedom are applicable to nonItalian citizens as well as to Italian citizens. In the Corte costituzionale’s case-law the
principle of equality has been consistently applied to immigration matters (see for example
case No 105/2001).
Besides Constitutional norms and principles, ordinary law attributes rights to foreigners who
are on the Italian territory. Other rights, principles and relevant legal standards on
administrative detention have been affirmed in the case-law. For example, the case-law of the
Constitutional Court has consistently held that immigration, and in particular the regulation
of the entry and residence of third country nationals on the Italian territory, requires striking a
balance between a pluralities of interests. The determination of this balance is reserved to the
legislator (see for example Corte costituzionale cases No 62/1994 and No 206/2006).
However, legislative discretion is limited by constitutional principles. In particular, the law
must be reasonable in order to be compatible with article 3 of the Constitution (principle of
equality). In the case No 245/2011 the Corte costituzionale held that the legislator can
regulate immigration matters by issuing norms which are not patently unreasonable and are
not in contrast with the international standards regulating the entrance and residence of nonItalian nationals on the Italian territory. These norms must constitute the result of a
proportionate and reasonable balance of constitutional interests, especially when the matters
regulated by the law are apt to infringe upon the enjoyment of constitutional rights (as for
example personal freedom).
Another important principle consistently affirmed in the Corte costituzionale’s case-law is
that ‘absolute legal presumptions, especially when they limit an absolute right of the person,
such as personal freedom, may violate the principle of equality if they are irrational and
arbitrary. In order to be not arbitrary and irrational, presumptions should correspond to
generalized data of experience, according to the maxim id quod plerumque accidit (what
56
happens to the majority of people). The Corte costituzionale established a standard test: an
absolute legal presumption is irrational if it is easy to imagine events which are likely to
happen or which in fact take place, contrary to the generalization grounding the presumption
(see cases No172/2012; No 231/2011; No 164/2011 and 139/2010).
The Corte di Cassazione (Ordinance No 19393 of 9 September 2009) stated the following
principle: ‘the status of the holder of a residence permit for humanitarian reasons (Article 5
(6) TU; Article 32 (3) D.Lgs 25/2008) is qualified as individual fundamental right. As such, it
cannot be treated as a mere legitimate interest subject to the administrative authorities’
discretion’.
The TU provides164 that any foreigner who is at the border or on the Italian territory enjoys
the fundamental rights provided by Italian law, international conventions in force and
generally recognized principles of international law, regardless of his/her immigration status.
_2_ Right to be informed of the reasons for arrest or detention
The detention order, the expulsion order and any other measure concerning the entry or stay
of a TCN on the Italian territory must be notified in writing to the person concerned, along
with the information on the right to appeal (whether it is possible to appeal, the time limit and
requisites for filing the application). The notification must contain the translation of the
measure into a language understood by the person. If the translation into a language
understood by the person is ‘not possible’, the translation is made in French, Spanish or
English (Article 13 (7) TU)165.
The law does not clearly specify the cases in which the translation has to be considered ‘not
possible’, leaving much room for discretion to the administration in deciding whether a
conveying language can be used instead of the language spoken by the person. The case-law
of the Corte di Cassazione specified the relevant criterion to determine the cases in which the
translation has to be considered impossible, and the use of a conveying language is justified.
In 2002 the Corte di Cassazione established that when the person does not understand Italian,
‘the attestation that the translation is impossible is a sufficient justification to use a conveying
language’ (case No 5465/2002). This standard was later incorporated in the regulation
implementing the TU (Article 3 of the d.p.r. 394/1999, as amended by article 3 d.p.r.
334/2004). This orientation has been maintained since then. For example, on 15.12.2009 the
Corte di Cassazione decided on the appeal against an expulsion order (case No 26253/2009).
The appeal was grounded, among other reasons, on the claim that the administrative authority
164
Article 2 TU.
The piece of regulation implementing the TU provides that: ‘The detention decree (decreto) must be notified
to the person. This measure must be motivated in writing, and it must contain a translation in a language that the
person understands. The detainee must be informed of the right to be assisted by a defence lawyer of his choice
or, if no defence lawyer is nominated, by a defence lawyer nominated by the judge (difensore d’ufficio), and
that the communications will be sent to the defence lawyer’s address. The detention cannot be prolonged beyond
the time strictly necessary to remove the obstacles which impede the execution of the expulsion as provided by
article 14 TU (20 D.P.R. 394/99 - Regolamento di attuazione).
165
57
violated the positive obligation to translate the expulsion order into a language understood by
the person. The judge of first instance (giudice di pace) dismissed the appeal stating that the
measure was in fact translated into a conveying language, and therefore the obligation
provided by law was satisfied. The Corte di Cassazione supported this reasoning and decided
that the judge applied article 13(7) TU correctly. Consequently, the Corte di Cassazione
dismissed the appeal. Instead, in a recent milestone case decided on 8 March 2012 (case No
3678/2012), the Corte di Cassazione modified the previous judicial orientation adopted ten
years before. This case was an appeal against the decision of the giudice di pace in Firenze to
validate the expulsion order for a person who entered the Italian territory avoiding border
control. The language spoken by the person was Chinese. The Court stated that the person’s
understanding of the proceedings is necessary for the correct application of the principles of
the due process of law. As such, the decision whether to translate an administrative measure
(in this case the expulsion order) into a conveying language rather than into the language
understood by the person cannot be entirely left to the administrative authorities’ discretion.
In the Corte di Cassazione’s view, the fact that there is no available interpreter/translator does
not always make the translation impossible. The reasoning is based on the following facts:
the number of expulsions has tremendously increased in recent years; most of the migrants
belong to specific ethnic and national groups; the public administration uses electronic
databases for the
proceedings; the contents of the expulsion measure are repetitive and
standardized (as the case-law indicates that the expulsion order is valid when it merely
repeats the contents of the law, without reporting the details of the instant case); in the
majority of cases there is no need for a ‘personalized’ translation in order to guarantee the
person’s understanding of the proceedings. Consequently, the positive obligation to translate
the measure in a language understood by the person can be also fulfilled by preparing
standard forms containing a translation of the relevant contents of each measure in different
languages. These prepared forms can be filled in with the personal data and information
regarding the person to which the measure is addressed in each case. The court concluded
that the translation must be considered ‘impossible’ when the administration asserts that no
predisposed form is available, which adequately translates the measure in a particular
language (for example, if the person belongs to an ethnic or linguistic minority) and there is
no translator immediately available. However, such a statement by the administration must be
verified by the judge, who must be satisfied with the administration's assertion. The judge
may also nevertheless deem that the predisposed form does not adequately translate the
relevant contents of the measure in a particular case. If the above mentioned criteria are not
respected, the expulsion order, notified with a view to accompanying the person at the border,
must be considered null and void. The Court further clarified that the judicial authority
(competent for the measure’s validation or the appeal aginst it)errs in law when it considers
that the mere fact that no translator or interpreter is available is a sufficient justification to
exempt the administration from the obligation to translate the measure into a language
understood by the person. Such motivation constitutes sufficient grounds for appeal. The
administration must explain the reason why the translation is not possible or the predisposed
translation is not adequate, and cannot just assert the unavailability of a translator. The
principles stated in this recent judgment limit the authorities’ discretion in respect to the
58
obligation to translate the measure into the language spoken by the person. In this respect,
defence lawyers must play an active role and appeal against the administrative authorities if
the above mentioned principles are not applied when the detention order is notified to the
detainee.
_3_Judicial control and confirmation of the detention order within 48 hours
The administrative authorities can lawfully restrict personal freedom for a limited period of
time and in cases strictly provided by the law (see above §1). As mentioned above, any
measure limiting personal freedom issued by the public administration ceases to have effect if
the judge does not validate it within 48 hours. This is because the judiciary offers the
guarantees of impartiality and independence which are necessary to secure due respect for
personal freedom.
The questore issues a detention order in the cases provided by law (see Chaper I) namely:
after an expulsion order has been issued by the prefetto, and the person is detained with the
view to be accompanied at the border to carry out the removal (pre-removal detention); in the
cases in which asylum seekers must be detained (asylum detention); in the case of
‘respingimento differito’ or while the decision of the giudice di pace on the measure by
which the questore orders to accompany the person at the border is pending; when the judge
is re-examining the expulsion order following an appeal by the detainee. (Article 14 (4) TU).
Any detention order issued by the questore must be verified and approved by a judge from a
substantial and procedural point of view. The competent judge in the case of administrative
detention is the giudice di pace166. Within 48 hours from the time when the restriction of
liberty started (that is when the detention order was issued), the questore must inform the
competent giudice di pace, assigned in relation to the CIE where the person is detained. At
the same time, the questore must forward to this judge a copy of the documents (Article 14
(3) TU). The judge validates the detention by issuing a motivated decree within 48 hours
from the notification of the measure to the person concerned. The case-law specified that the
hearing must be held within 48 hours starting from the time when the measure was notified to
the person. Therefore, the respect of the first time limit of 48 hours is assessed taking into
consideration the beginning of the hearing and not the time when the person is actually
interviewed by the judge. It has been reported that in practice the police authorities keep the
person in detention for days or weeks, and delay the notification of the measure, so that it
appears that time limits prescribed by law are respected and the validation of the detention
decree is not prejudiced167. If the judge does not validate the detention order issued by the
questore within 48 hours, this ceases to be valid and effective. The lack of validation of the
detention order does not affect the validity and effectiveness of an expulsion order (article 14
(4) TU). The decree of validation of the detention constitutes the title for detention. Once the
detention order has been validated the person remains in detention for 30 days.
166
The L No 271/2004 attributed the competence to verify and confirm the detention order (which was that of
the Tribunal) to the giudice di pace.
167
Available at: http://www.storiemigranti.org/IMG/pdf/Fulvio_Vassallo_Paleologo_Diritti_sotto_sequestro.pdf
accessed 20 April 2013.
59
In order to decide upon the request by the questore to confirm the detention measure, the
judge must celebrate an oral hearing: the validation proceedings should not be on paper only.
The detainee’s lawyer must be promptly informed of the time of the hearing, and must take
part in the hearing. The detainee is informed and accompanied where the hearing takes place
and must be heard, if present at the hearing. (Article 14 (4) TU). The hearing is not open to
the public. The decision to detain ceases to have effect if the above mentioned time limits are
not observed. The judge must verify the presuppositions and the justification for detention,
and assess whether they are lawful and coherent. The judge must verify that the time limits
were respected, and that each of the conditions required by art 13 and 14 TU were respected.
The only condition that can be derogated from is the requirement to detain the person in the
nearest CIE. In particular, the giudice di pace must verify the existence, sufficiency validity
of the removal measure (expulsion order, respingimento differito or deferred removal) and
the existence of the requisites to issue a detention order (articles 10 (2), 13 and 16 TU). The
law requires that each measure (the expulsion order issued by the prefetto, the deferred
removal and the detention order disposed by the questore) is assessed on a case by case basis,
and that due consideration is given to the specific circumstances of the case. Standard
motivations should not be considered sufficient to justify the administrative orders. The mere
repetition of the content of the law should not be accepted. However, justifications are often
standardized.
The verification of the presuppositions and the justifications of the detention order are often
formal rather than substantive, and the circumstances of the case are not often taken into
consideration properly168.
The judge must verify:
1)
the respect of timings and procedures, no more than 48 hours must have passed since
the beginning of the detention;
2)
the presence of the requirements provided by law for expulsion (formal and
substantive presuppositions of the expulsion order, of the order to accompany the person at
the border; the fact that the person does not belong to any of the categories of people who
must be expelled);
3)
the judge must verify the presence of the presuppositions which legitimate the
detention, generally adduced by the questore (for example the existence of obstacles
impeding preparation of repatriation; or to carry out the removal by accompanying the person
to the borders immediately ; and the fact that the obstacles are only temporary);
The obligation to hold an oral hearing was introduced by the case-law of the Corte
costituzionale. The Court referred to the constitutional interpretation of the existing
dispositions, and specified that the obligation provided by law to hold a hearing must be
understood as requiring an oral hearing for the law to be in line with the Constitution (cases
No 222 and 224 of 2004). The Corte di Cassazione clarified that the validation of the
168
Available at: http://www.meltingpot.org/stampa17686.html, accessed 20 April 2013.
60
detention order requires the presence of the person concerned at the validation hearing
(unless the person renounces to this right) and that a procedure based on papers only is not
sufficient to guarantee the defence rights of the person concerned (case No 4544 of 24
February 2010). In particular, the court specified that the judicial validation of the request
must not happen trough an ‘exchange of papers between the administration and the judge’,
but it must involve the detainee and his lawyers, respecting the principle of the right to be
heard.
Article 32 of L. No 189 of 2002 introduced the simplified procedure for recognition of
asylum and established the possibility for (potential) detention of the person requesting
international protection in a CIE or (mandatory) detention in a CPTA, for 30 days. The law in
2002 provided that the detention of a person requesting asylum could be extended for a
further 30 days. Article 21, D.lgs 25/2008 (transposing Directive 205/85/EC into the Italian
system) regulated the detention in the CIEs and CPTAs. The validation regime for the
questore’s measure disposing the detention of the asylum seeker is the same provided in the
TU for the detention of irregular migrants. The judge must validate the decree and the
extension; the detainee has the right to appeal against the judge’s validation and extension
decrees in front of the Corte di Cassazione169. However, the d.P.R. No 303 of 2004,
implementing L. No 189/2002 did not provide any special disposition in relation to the
procedure for validation and extension of detention in the case of the simplified (accelerated)
procedure to request asylum.
The validation of the detention order is problematic in practice. Notwithstanding the transfer
of the power to validate the hearing to the giudice di pace, for the purpose of accelerating the
proceedings, there are still a few cases in which the validation does not take place at all170,
but the person stays in detention. In other cases the hearing does not take place and the trial is
169
D. Lgs. No 251 of 2007 implementing directive 2004/83/EC.
Fulvio Vassallo Paleologo and Alessandra Siragusa MP, after visitng the CIE in Milo, Sicily, reported that 5
detainees declared that they were not given the opportunity to see a judge since they had been detained. They
lamented that, on the contrary, other detainees were released because the judge did not validate their detention
following an oral hearing. They also reported that the police exercise an enormous degree of discretion, which
eventually turns into abuse, in the enforcement of law, especially in the case of deferred push back (article 10
(2) TU) and immediate push back (article 10 (1) TU) (see above Chapter I, § 2.2 and 7). In the first case, the
police may keep the irregular migrant in detention without issuing a detention decree, let alone the judicial
control on the measure. The restriction of liberty in the stage before the decision to detain based on the pusk
back measure issued by the questore is not fully regulated by the law. Article 20 of Dpr 394/1999 implementing
the TU provides that detention in a CIE can be disposed in case of respingimento differito (deferred push back).
In this case a regulation provides the applicable rule and this is contrary to the statutory reserve on immigration
matters. In the case of respingimento differito the TCN sometimes is put in a CIE and the terms for issuing and
validating the detention order are not respected, resulting in an unlawful detention. This happened for example
in the CPAS (centro di primo soccorso ed accoglienza) of Lampedusa from January to June 2009. As reported
by Fulvio Vassallo Paleologo, the police keep irregular migrants caught on the Italian territory in de facto
unlawful detention until the questore issues the push back measure, sometimes this happens only after a few
days. Moreover, the law does not expressly provide for appeal against the push back measure adopted in
compliance with article 10 (2) TU. This notwithstanding, as Fulvio Vassallo Paleologo reports, in 2011 the
giudice di pace in Agrigento declared to be competent to hear the appeals and annulled push back measures.
When the police carries out an immediate push back in compliance with article 10 (1) TU sometimes the person
is detained in other facilities not qualified as CIEs, so that the public authority is not obliged to apply all the
guarantees connected to administrative detention. See http://www.meltingpot.org/articolo18042.html accessed
20 April 2013.
170
61
decided on papers, depriving the migrant of the right to be heard171. The avvocati d’ufficio
sometimes lack specific training on immigration matters and frustrate the defence rights of
the represented person. It has been reported that sometimes the avvocati d’ufficio suggest
their assisted to waive the right to be interviewed by the judge, in order to speed up the
proceedings. Another bad practice which has been reported by Fulvio Vassallo Paleologo is
that the giudice di pace issues validation decisions for more than one case at a time172. The
practice of collective validation (the examination of more than one detention order at a time)
is not lawful because the decision should be taken on a case by case basis. This ‘procedura
sommaria’ or ‘generalized’ or ‘colletive’ has been used in the CIE Vulpitta di Trapani
throughout 2011, and the authorities justified the violation of migrant’s right to have their
case heard with the need to accelerate the procedures and contrast illegal migration more
efficiently.
Moreover, judicial scrutiny is often limited to formal aspects, while the legitimacy of the
detention from a substantive point of view is not sufficiently examined173. The specific
circumstances of each particular case are not taken into account in the decision on the
detention measure174.
Due to the large case-load of detention decreed submitted to the giudice di pace for
validation, especially when the influx of migrants has been particularly massive as for
instance throughout 2011, there are often major delays in the validation process. Once the
time limit of 48 hours expires, the detention becomes unlawful and the person should be
released. Contrary to this disposition, irregular migrants stay in detention after expiry of the
above-mentioned while the proceedings validation of the detention order are still pending.
With the increasing of the maximum time limit for detention up to 18 months, the judicial
control of the request for extension of the detention becomes more problematic. A recent
important case by the Corte di Cassazione (case No 4544/2010) clarified that the same legal
criteria and procedural requirements must be applied for the judicial validation of the
extension request. The Corte di Cassazione clarified that the validation hearing, with the
possibility for the migrant to be interviewed by the judge, must take place not only when the
migrant is detained in order to prepare for expulsion, but also when the migrant is detained
while the application of international protection is processed. Also, the person concerned
171
http://www.personaedanno.it/index.php?option=com_content&view=article&id=39079&catid=142&Itemid=38
9&mese=06&anno=2012 (accessed 20 April 2013).
172
http://www.meltingpot.org/articolo16860.html (accessed 20 April 2013); see also
http://www.personaedanno.it/index.php?option=com_content&view=article&id=39079&catid=142&Itemid=38
9&mese=06&anno=2012 (accessed 20 April 2013).
173
Fulvio Vassallo Paleologo 'Il respingimento differito disposto dal questore e le garanzie costituzionali, in
Diritto, Immigrazione, Cittadinanza, No 2/2009, p 15-29.
174
Fulvio Vassallo Paleologo 'Il respingimento differito disposto dal questore e le garanzie costituzionali, in
Diritto, Immigrazione, Cittadinanza, No 2/2009, p 15-29.
62
should take part in the validation hearing in the case of request for extension of detention. In
fact, the same guarantees which apply when the measure is taken must be applied when the
same measure has to be prolonged; otherwise this would constitute a disparity of treatment.
The above mentioned procedural guarantees have been violated in many cases. For example,
in September 2011 hundreds of migrants were detained in three ships anchored in the harbor
of Palermo for a long time without any control by the judge175.
As mentioned above, the validation hearing takes place in buildings belonging to the Ministry
of Interior, while they should take place in buildings of the Ministry of Justice. According to
Paolo Bonetti176 this constitutes a violation of article 110 Constitution which states that the
Ministry of Justice should be responsible for the organization and functioning of the judicial
offices and services. Moreover, the environment in which the giudice di pace decides on the
request to validate the administrative measure may influence the outcome of the decision.
Administrative authorities may exercise a moderate pressure upon the judiciary. For example,
in 2011 the vice-questore in Turin sent a note to the giudice di pace competent for that area,
requesting the judge to promptly validate the detention orders, with the purpose not to
interfere with the readmission procedures provided by the bilateral agreements177.
_4_Right to personal interview
The interview of the migrant in detention should take place at the validation hearing within
48 hours from the time when the detention order was issued, unless the detainee decides to
waive this right. Sometimes the defence lawyers suggest waiving this right, in order to
accelerate the validation proceedings. The Corte di Cassazione specified the interpretation of
the provisions on validation and prorogation of detention in compliance with the constitution
(cases No 4544 and 10290 of 2012; and cases No 13117 and 13767 of 2011) establishing that
the guarantees of the mandatory participation of the defence lawyer and the personal
interview with the person concerned provided for the validation of the initial decision to
detain, must be applied to the extension of the detention.
The interview of asylum seekers by the Territorial Commission which decides on the request
is a step towards obtaining international protection. The Questura must notify the date of the
interview to the asylum seeker (article 12 D.Lgs 25/2008). The Territorial Commission, upon
request of the asylum seeker, may decide to hold the interview with one member of the
175
Available at: http://www.meltingpot.org/stampa17686.html (accessed 20 April 2013).
176
Paolo Bonetti, ‘Profili costituzionali della convalida giurisdizionale dell’accompagnamento alla frontiera’
Diritto, Immigrazione e Cittadinanza, Franco Angeli, 2002, 2, p 13.
177
http://www.personaedanno.it/index.php?option=com_content&view=article&id=39079&catid=142&Itemid=38
9&mese=06&anno=2012 (accessed 20 April 2013).
63
commission only. When possible, this person should be of the same gender of the requesting
person (Art 12(1) D.Lgs 25/2008). The Territorial Commission may decide not to carry out
the interview when there are sufficient reasons to accept the request of international
protection and recognize refugee status, or when the asylum seeker is unable to take part in
the interview due to his/her physical conditions. This status has to be certified by a public
hospital or by a doctor of the National Health Care System (Servizio sanitario nazionale) (Art
12 (2) D.Lgs 25/2008). The interview can be rescheduled (postponed) when, due to the
asylum seeker’s certified health conditions, he/she cannot take part to the interview, or when
the asylum seeker requests to reschedule the interview for serious reasons. (Art 12 (3) D.Lgs
25/2008). If the person, duly informed of the date and time of the interview, does not take
part in it, the Commission decides on the basis of the materials already submitted (art 12 (4)
D.Lgs 25/2008)). When the asylum seeker who is not in detention is not notified of the date
and time for the interview, the Territorial Commission must reschedule the interview. This
can happen only once and within 10 days starting when the impediment ceases (Art 12 (5)).
The interview with the asylum seeker is private, and the relatives of the person are only
allowed to take part if necessary for examination of the request. If the person is a vulnerable
migrant (art. 8 D. Lgs. 140/2005) the people offering psychological support may be allowed
to take part to the interview in order to assist the person (Article 13(2)TU). The parents must
take part in the interview of a minor asylum seeker. If the minor is unaccompanied, the
guardian who has been nominated by the juvenile judge (art 343 civil code) must take part in
the interview (Article 13 (3)). If the asylum seeker is assisted by a lawyer the lawyer must
take part in the interview (Article 13 (4)).
The validation hearing takes place in buildings belonging to the Ministry of Interior, while they
should take place in buildings of the Ministry of Justice. According to Paolo Bonetti178 this constitutes
a violation of article 110 Constitution which states that the Ministry of Justice should be responsible
for the organization and functioning of the judicial offices and services. Moreover, the environment in
which the giudice di pace decides on the request to validate the administrative measure may influence
the outcome of the decision.
The detention of asylum seekers in a CIE in the cases provided by Article 21 (1) D.Lgs
25/2008179 is disposed by the questore, following the procedure provided for the detention of
irregular migrants (Article 14 TU). If the person requests asylum while being already in
detention, the questore must request to the Tribunal (single judge) – and not to the giudice di
pace – the extension of detention for further 30 days, to carry out the proceedings for the
examination of the request for international protection (Article 21 (2) D.Lgs 25/2008).
When the asylum seeker is detained in a CIE, the questore must forward the request for
international protection, along with the necessary supporting documentation to the competent
Territorial Commission, which disposes the interview with the asylum seeker within 7 days
178
Paolo Bonetti, ‘Profili costituzionali della convalida giurisdizionale dell’accompagnamento alla frontiera’
Diritto, Immigrazione e Cittadinanza, Franco Angeli, 2002, 2, p 13.
179
Detention is disposed when the asylum seeker is in the conditions provided by article 1 paragraph F of the
Geneva Convention on the Status of Refugees; when the asylum seeker has been convicted for criminal
association; crimes related to drugs, to sexual freedom, to aiding and abetting illegal migration etc.; when the
person has been reached by an expulsion order and the claims asylum.
64
from the date in which the documents were received. The decision on the asylum request
must be taken within the next 2 days. (Article 28 (2) D. Lgs 25/2008).
_5_Periodic review of the detention order and of the appropriateness of the detention
Italian law does not provide for a periodic review of the detention, neither automatic nor upon
request of the detainee. The migrant in detention, therefore, cannot request to review the
detention if there are new circumstances or circumstances which were unknown at the time of
the decision to detain. This is not in compliance with European law, which prescribes the
periodic review of detention (Returns Directive Article 15 (6)).
_6_Right to take proceedings before a Court/Right to appeal
The first decision to detain and further extensions of the initial detention order are validated
by the giudice di pace through motivated decree. Against the decree of validation/prorogation
of the detention (Article 14 (5) TU) the detainee can appeal to the Corte di Cassazione. The
appeal does not interrupt the execution of the detention (Article 14 (6) TU).
The initial decision of the Commissione Territoriale on the recognition of international
protection can be appealed to the competent Tribunal within 30 days from the reception of
the decision, or within 60 days if the person resides abroad. If the person is in reception in a
CARA or in detention in a CIE the time limit to file the appeal is 15 days from the reception
of the first decision. In general, the appeal suspends the effect of the measure or decision.
However, there are some exceptions:
a)if the person requesting international protection is in a reception centre, in compliance with
Article 20 (2) (b) and (c) of D.Lgs No 25/2008 (when s/he requested international protection
after being caught in the act of eluding border controls or right after, or after being caught by
the police on the Italian territory with no status), or detained in a CIE in the cases provided by
Article 21 of the same (when s/he committed a serioud crime);
b)if the appeal is against the decision that declared the request for international protection
inadmissible;
c)if the appeal is against the decision of the Territorial commission in the case provided by
Article 22 (2) D.Lgs. No 25/2008 (when the person left the CARA without justification);
d)if the appeal is against the decision of the Territorial commission, which declares the
request for international protection manifestly unfounded (ex art. 32, comma 1, lettera b-bis
of D.lgs 2008 No 25180.
180
Article 19 D.Lgs No 150/2011.
65
In those cases the effects of the initial decision can only be suspended upon request of the
person. When the request to suspend the effects of the decision is accepted, the administration
must issue a temporary residence permit for asylum seekers. If the asylum seeker was
accommodated in a CARA (in the cases provided by article 20 D.Lgs 25/008), he/she must
remain in the CARA. If the person was detained in a CIE, when the judge suspends the initial
decision's effects, the requesting person must be accommodated in a CARA according to law
No 140/2005 (Article 36 (3) D.Lgs. 25/2008).
The Tribunal issues a judgement by which it either dismisses the appeal or recognizes the
status of refugee or subsidiary protection. Against this judgement the person can appeal to the
Corte di appello (Court of appeal). This appeal does not suspend the effects of the judgement
unless this is granted upon request of the person for serious and well grounded reasons.
Against the decision of the Corte di appello the person can appeal to the Corte di Cassazione.
The appeal is at treated any stage of the proceedings as ‘urgent’.
The Conferenza delle Regioni e delle Province Autonome held in Rome on 5 July 2012
issued a document181 following an investigation on ‘Right of asylum, immigration and
integration in Europe’, for the audition in front of the Parliament committee monitoring the
implementation of Schengen Agreement, the activity of EUROPOL and control on
immigration matters. In this document the representatives of the Italian regions and
autonomous provinces indicated the actions to be taken in order to improve the overall Italian
system of reception of migrants and asylum seekers. One of the commonly shared
suggestions for legislative reforms is the provision of a right to appeal with general
suspensive effect against the initial negative decision on the request for international
protection.
_7_Right to legal assistance and interpretation
Any TCN has the right to be assisted by a defence lawyer who must attend the hearing for the
validation of the detention order182. The TCN can nominate a defence lawyer of his choice,
provided with a special power of attorney. Destitute TCNs have the right to legal aid, that is,
the state must pay for the defence (it is called ‘gratuito patrocinio’ – free legal aid). If the
person did not nominate a lawyer, the judge must nominate a defence lawyer (called
181
This document is available at the following website:
http://www.regioni.it/download.php?id=260896&field=allegato&module=news (accessed 20 April 2013).
182
Article 14 (4) TU was amended by L. No 189/2002 and then by D.Lgs no 150/2011. This section was not
modified by law No 129/2011. The original language of article 14 (4) as amended: ‘L'udienza per la convalida si
svolge in camera di consiglio con la partecipazione necessaria di un difensore tempestivamente avvertito.
L'interessato è anch'esso tempestivamente informato e condotto nel luogo in cui il giudice tiene l'udienza. Lo
straniero è ammesso all'assistenza legale da parte di un difensore di fiducia munito di procura speciale. Lo
straniero è altresì ammesso al gratuito patrocinio a spese dello Stato, e, qualora sia sprovvisto di un difensore, è
assistito da un difensore designato dal giudice nell'ambito dei soggetti iscritti nella tabella di cui all'articolo 29
delle norme di attuazione, di coordinamento e transitorie del codice di procedura penale, di cui al decreto
legislativo 28 luglio 1989, n. 271, nonché, ove necessario, da un interprete. L'autorità che ha adottato il
provvedimento può stare in giudizio personalmente anche avvalendosi di funzionari appositamente delegati.’
66
‘difensore d’ufficio’ – Court-appointed lawyer), chosen among an official list of legal
practitioners. The judge nominates an interpreter ‘when it is necessary’ (Article 14 (4) TU).
The meaning of this expression is not specified by law. The administration is obliged by law
to promptly notify the date, time and place of the hearing to the defence lawyer (Article 14
(4) TU). The Corte di Cassazione specified that this obligation is not satisfied if the lawyer
has been nominated just before the hearing, and consequently is not accurately informed of
the specific situation of the person he/she is representing183. The TCN in detention must be
promptly informed of the hearing and accompanied to the place where the hearing is
celebrated (Article 14(4) TU). The migrant has to be promptly informed and accompanied to
the hearing, which may be the CIE in some cases.
The appointment of a lawyer may be extremely difficult for a person in detention. Another
problem is that the lawyers in the list of difensori d’ufficio, which are paid by the state, are
not always specifically trained on immigration practices. Moreover, the lawyers, including
the lawyers nominated by the TCN, are usually informed with much delay of the time and
date set for the validation hearing, therefore they have no time to prepare a proper defence.
The delays in the communication of the hearing date to the defence lawyers hinder the proper
observance of the migrant’s defence rights. The right of defence is not guaranteed as
oftentimes the avvocato d’ufficio (paid by the state in the interest of the person) is not keen
on defending the client he has been assigned. The avvocati d’ufficio are nominated among a
restricted list of professional lawyers, who are contacted either by the association who is
responsible for the list or by the police. Fulvio Vassallo Paleologo reports that defence
lawyers often suggest to the client not to appeal184. This way, the effective enjoyment of the
defence right for a migrant in detention is seriously hampered. An attempt to better guarantee
the defence rights of TCN in detention is the practice of preparing lists of professional
immigration lawyers. For example, in Milan the Consiglio dell’ordine degli Avvocati (the
self-regulating organism of the lawyers) prepares special lists of professionals which can be
contacted by the detained TCN who, due to the limited possibilities to communicate with
people or organizations outside the detention centre, and due to the restricted access to the
centres, cannot choose a lawyer among immigration experts.
According to Article 14 (4) TU, the judge must nominate an interpreter for the validation
hearing ‘when it is necessary’. This norm is far less clear than the rules in the Criminal
Procedure Code regarding the right to have an interpreter for the accused185. The
183
The Corte di Cassazione (I Sezione Civile - case No 4544 of 24 February 2010) stated that the obligation to
promptly inform the defence lawyer appointed by the person is not fulfilled by nominating a lawyer among the
list of those paid by the state, who is not aware of the situation of the migrant.
184
Available at:
http://www.personaedanno.it/index.php?option=com_content&view=article&id=39079&catid=142&Itemid=38
9&mese=06&anno=2012 (accessed 20 April 2013).
185
The Criminal Procedure Code provides that any accused person who does not understand Italian has the right
to be assisted by an interpreter in order to understand the charge formulated against him and to effectively take
part to the trial (Article 143 Criminal Procedure Code). The authority in charge of the proceedings nominates an
67
interpretation of the norms on the right to have an interpreter is controversial. The realization
of this right causes problems due to the costs of the realization of this right and the limited
resources of the judiciary However the realization of this right is crucial to guarantee a due
process of law and effective right of defence to the person who does not speak Italian and
therefore would not understand the charges put forward against him and what is going on
with the proceedings. In Judgment no 10 of 1993, the Corte costituzionale recalls
international norms on the right to have an interpreter (art 6(3)(a) and (e); artcle 5(2) (right to
be informed of the reasons of the arrest and the charges against one person ECHR; art 14(3)
(a) International Covenant on Civil and Poliical Rights ) and attributes to this right the
potential for an expansive application. The Court holds that the right to have an interpreter
should be applied beyond the cases expressly provided by law. In the opinion of the Court,
article 143(1) c.p.p. is a general clause which can be applied widely in any instance of the
proceeding when the help of the interpreter is essential for the protection of the right of
defence. Article 111 Constitution enshrines the right to have an interpreter in the context of
the provisions on the due process of law. The Corte costituzionale declared unconstitutional
and void article 102 of d.p.r. 30.5.2002 No 15, as far as it does not provides the possibility for
a foreign person who enjoys the right to legal aid and does not understand Italian to nominate
an interpreter.
The Corte di Cassazione, Sezioni Unite, judgment No 12 of 31.5.2000, the right to have an
interpreter includes also documents of the proceedings, not only oral communication in the
proceedings (mancata traduzione citazione in giudizio, nullità generale di tipo intermedio.
S.U. No 5052/04 of 24.9.2003 affirmed that the right to have an interpreter must apply
whenever the lack of support by the interpreter would jeopardize the accused’s right to take
part effectively to the proceedings. This judicial orientation was confirmed by SU No 39298
of 26.9.2006 (see also Cassazione, Judgment No 36541/08). The European Court of Human
Rights specified that the application of article 6(3)(e) of the Convention is not limited to oral
statements in the proceedings but includes written documents, and the contents of other
related proceedings, but does not include the translation of every evidence or official
documents in the proceedings. The court stated that this right guarantees that the accused
understands his case and is put in the condition to exercise effectively his right of defence186.
interpreter if there is the need to translate a piece of writing from a foreign language, or if it is handwritten and
not easily legible. Also a translator/interpreter is nominated if the person who wants to make a declaration does
not know Italian. The declaration can be also made in writing. The fact that the judge, the prosecutor or the
police know the language to be interpreted translated does not matter, the interpreter must be nominated in any
case. The service of interpretation is free for the accused. If the interpreter is not nominated the
decision/judgment is null and void. For example, the Tribunale del riesame in Palermo, which hears the appeals
against preventative measures, declared null and void the order disposing the custodia cautelare because it was
notified to the accused in Italian
186
ECtHR case-law on the right to have an interpreter: Luedicke, Belkacem e Koc v. Germany 28 November
1978; Kamasinski v. austria 19.12.1989: Onka v. Belgium 5.2.2002; Van Der Leer v. Holland 21.2.1990.
68
It seems that Article 24 of the Constitution, which provides that any person, including TCNs,
have the right to defend their own rights and legitimate interests in legal proceedings is not
fully implemented. Full understanding of the proceedings is crucial for the person concerned
in order to exercise this fundamental right. Due to the chronic lack of official interpreters the
right to have an interpreter is not always guaranteed. Paleologo reports that the TCN at a
hearing are often unable to distinguish between the judge, the defence lawyer and the plainclothes police officers187.
The right to have an interpreter should be also guaranteed in the CIEs. The organizations
providing services to the detainees in the detention centres normally offer interpreting and
cultural mediation services. Avvocato Giuseppe Buscaino, a senior lawyer practicing
immigration law in Trapani, Sicily, and specialized in administrative detention, reported that
in the CIE of Milo, a place close to Trapani, the hearings for the validation of the detention
decrees are held in the CIEs. In case the official interpreter is not available, the service
interpretation is offered by the staff of the centre188.
_8_Right to compensation for unlawful arbitrary detention
The Corte di Cassazione consistently held that administrative authorities can issue measures
restricting personal freedom in the cases strictly provided by the law in compliance with
article 13 of the Italian Constitution. Such measures have only temporary validity (in the case
of the first detention order) or no validity at all (in the case of the subsequent requests for
prorogation) unless they are validated by the competent judge (Corte di cassazione, Sezioni
Unite, case No 9596 of 13 June 2012). The request for compensation in the case of illegal
detention falls under the jurisdiction of the ordinary judge and not under the administrative
jurisdiction (Corte di cassazione, Sezioni Unite, No 9596 of 13 June 2012). The
administration can be called in front of the ordinary judge to answer the claim for damages in
consequence of illegal restriction of the migrant’s liberty or of the illegal detention of the
migrant in a reception centre. The Corte di Cassazione states that ‘when the administrative
authorities keep an irregular migrant in detention after the term for the validation of the
prorogation request expired (and the judge did not authorize the prorogation of detention),
they act ‘sine titulo’ and do not exercise a power; instead, they only exercise a material power
resulting in the deprivation of personal liberty without any authorization’.
The migrant who has been detained illegally is entitled to bring judicial action against the
administrative authorities and requesting compensation for illegal detention. The request of
compensation can also be filed after the expulsion has been carried out (‘danni da indebito
restringimento di extracomunitario espulso’).
187
188
Available at: www.meltingpot.org/articolo17686.html (accessed 20 April 2013).
Interview with Avvocato Buscaino, on 27 December 2012, Trapani (Palermo) Italy.
69
Chapter III
Alternatives to administrative detention
_1_Legislation in force
European Law
The provision of measures alternative to administrative detention is grounded on the
normative assumption that personal freedom should only be limited when there is a serious
reason and when it is strictly necessary. Detention should only be inflicted as a measure of
last resort because it severely limits personal freedom. This principle is widely recognized in
international law189.
The Rapporteur of the Human Right Commission François Crépeau stressed the importance
of alternative measures to administrative detention, indicating that in order to change the
existing situation it is necessary to conduct a rigorous analysis of the alternatives to
detention190.
The system designed in the Returns Directive for repatriation is based on the same premises
and on the principle of proportionality. As a general rule, administrative authorities should
issue measures which are proportionate and effective with regard to the means used and in
relation to the end pursued (whereas No 13). Consequently, any administrative measure
adopted within the repatriation procedure, including the detention decree, is in principle only
justified when it is proportionate, necessary and effective in order to achieve the end of
repatriation. The principles of necessity and proportionality require that the less coercive
measure is adopted when this measure is effective in order to reach the end of repatriation. As
such, under European law an irregular migrant subject to repatriation proceedings should not
be held in detention if less restrictive measures can be put in place. The Returns Directive
clearly sets a specific order in the repatriation procedure. The Returns Directive establishes as
a general rule that the normal way to carry out repatriation is by granting a term between
seven and thirty days in which the individual can choose to leave the country voluntarily
(Article 7): only if this measure jeopardises the prospect for repatriation is it then possible to
order that the person should be detained. During this time, measures can be taken to avoid the
risk of absconding. Under European law, administrative authorities should decide to issue
either such measure after a careful consideration of the circumstances in each case. The
189
For example, the resolution number 63/184 of the UN General Assembly issued in 2009 called upon all states
to ‘adopt, where applicable, alternative measures to detention’. The Working Group on arbitrary detention
(Commission on Human Rights of the UN Economic and Social Council) has recommended that ‘alternative
non custodial measures, such as reporting requirements, should always be considered before resorting to
detention’
(E/CN.4/1999/63/Add.3,
para
33,
available
at
http://daccess-ddsny.un.org/doc/UNDOC/GEN/G98/145/43/PDF/G9814543.pdf?OpenElement accessed 20 April 2013).
190
Available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC20-24_en.pdf p. 13-20 (accessed 20 April 2013).
70
administration should also provide reasons why the adoption of a non-custodial measure
would not guarantee the execution of removal.
As such, voluntary repatriation must be always preferred over forced return, unless there are
reasons to believe that the adoption of this measure may frustrate the prospect of repatriation
(for example because there is the risk of absconding)191.
Italian Law: voluntary repatriation
Normally, when the police finds a TCN illegally present on the Italian territory, the prefetto
issues an expulsion decree (article 13 (2) TU)192, unless there is a prohibition to expel the
person193.
Article 13(5) TU (as amended and integrated by the D.L. No 89 of 23 June 2011, converted
into L. No 129 of 2 August 2011) provides that ‘when a foreign person is reached by an
expulsion decree, if the conditions for accompanying the person at the border do not occur,
the person may request the prefetto to grant a period for voluntary repatriation, which can be
carried out through assisted voluntary repatriation programmes.’ A term to voluntarily leave
the country, therefore, can only be granted upon request of the person reached by the
191
The Returns Directive provides that a period for voluntary repatriation between 7 and 30 days should be
granted (Article 7 (1) Directive), unless it is reasonable to believe that it would prejudice repatriation (whereas
No 10 Returns Directive).
192
When the person entered eluding border control and has not been pushed back under article 10 TU; when the
person remained on the Italian territory without requesting a residence permit, except the cases of forza
maggiore (force majeure); or when the residence permit has been revoked, annulled, rejected or it has expired
more than 60 days and the person did not request its renewal (article 13 (2) (a) (b) and (c) TU).
193
There is an absolute prohibition to expel a TCN to a state where the person can be persecuted for reasons of
race; sex; language; citizenship; religion; political opinion; social or personal conditions; or there is the risk that
he can be pushed back to a state where he has no protection from persecution. (Article 19 (1) TU). There is also
a general prohibition to expel persons belonging to the following categories: minors (unless they follow the
parents or the person who has their custody and who is expelled); TCN with a residence permit; TCN living
with relatives within the second degree of kinship or with their Italian spouse; and women while pregnant or
within six months after they gave birth. (Article 19 (2) TU). The repatriation or the execution of the expulsion of
people with disabilities, elderly, minors and single parents with children, or victims of serious psychological,
physical or sexual violence, must be carried on in ways compatible with the specific situation of the individual
concerned. In any case, the prefetto must issue the expulsion decree on individual basis. The expulsion decree
must be motivated and is immediately effective. The person can file an appeal to the Corte di Cassazione
against the expulsion order. The appeal does not suspend the effects of the expulsion decree. This appeal to the
supreme jurisdiction in Rome is costly, only senior lawyers with 10 years of experience are allowed to represent
a person at the Corte di Cassazione. Normally, the expected time for the conclusion of the proceedings at the
Corte di Cassazione is two years. In case of appeal against an expulsion decree the length of the proceedings in
front of the Corte di Cassazione (normally two years) entails the actual risk of frustrating the defence right of
the appellant.
71
expulsion decree. The Questura has a positive obligation to inform the migrant of the
possibility to request a term for voluntary repatriation. However, the administrative
authorities normally include such communication only when, in their view, the circumstances
for granting voluntary repatriation occur, omitting it in the other cases. The communication is
done by attaching to the expulsion decree a standard informative leaflet translated in different
languages. If the person does not request a term for voluntary repatriation, the expulsion is
carried on by accompanying the person at the border.
When the TCN asks for a term for voluntary repatriation, the questore requests him to show
evidence of the availability of sufficient means of subsistence during the period granted for
voluntary repatriation (the amount of which is between one or two monthly payments of the
assegno sociale annuo, a non-contributory benefit). The TCN has to show that the means are
derived from legal activities.
The prefetto evaluates the request and the circumstances of the case and, at his discretion,
orders the irregular migrant to voluntary leave the Italian territory within a term between
seven and thirty days. This term can be extended, if it is necessary, taking into account the
circumstances of the case such as the length of stay in the national territory, the presence of
minors who are enrolled in school, the presence of other familiar and social ties, and the
admission to voluntary and assisted repatriation programs (as provided by article 14 ter TU).
After the person voluntary leaves the country, the Questura informs judicial authorities
(prosecutor or judge), who close the investigation/proceedings for the crime of illegal
migration (article 10-bis TU) or issue an order of non luogo a procedere, which has the effect
of extinguishing criminal proceedings against that person, if initiated.
The repatriations are funded through the Fondo rimpatri, a national fund which uses national
and European resources (article 14-bis TU). The Decision No 575/2007/CE of 23 May 2007
established the European Fund for repatriation, from 2008 to 2013, within the general
Program “Solidarietà e Gestione dei Flussi Migratori”. This program realizes a system of
financial solidarity. The funding amounted to total 676 million Euro, and 71 were destined to
Italy.
_2_Contrast between European and Italian Law
In 2011, following the judgment of the Court of Justice of the European Union in the case El
Dridi (Case C-61/11 PPU), the Returns Directive was transposed into the Italian system194,
and voluntary repatriation was provided as a way to carry out repatriation for irregular
migrants who have been reached by an expulsion order. Italian law provides that repatriation
can also be carried out in the context of assisted voluntary repatriation programs. However,
there is no obligation for the administrative authorities (questore) to grant a term for
194 The D.L. No 89 of 23 June 2011, as amended by the conversion L. No 189/2011, modified the provision of
the TU in compliance with the Returns Directive and the case-law of the CJEU.
72
voluntary repatriation. The Italian law currently in force provides that voluntary repatriation
can be granted as alternative measure to detention when the person who has been reached by
an expulsion decree holds a valid identification document and ‘if the conditions to
accompany the person at the border immediately are not present’ (article 13 (5) TU). As such,
forced repatriation appears to remain the normal way to carry out expulsions in Italy. The
public authority (prefetto) decides whether to grant a period of voluntary repatriation upon
request of the person who has been reached by the expulsion order. It appears that Italian law
contrasts with European Law as it inverts the order of the measures established by the
Returns Directive for the repatriation procedure. Moreover, voluntary repatriation cannot be
granted if there is the risk that the person absconds. As mentioned earlier, the risk of
absconding is always presumed when the person lacks personal identification documents,
which represents a large number of cases. Consequently, Italian law eludes in the substance
the obligation to comply with European law on an issue which is of paramount importance
for the guarantee of the right of freedom of the person195. However, the dispositions on
voluntary repatriation have been regarded and self-executive by Italian judges, and therefore
directly applicable in the Italian legal system. For example in a case decided on 6 January
2011 by the Tribunal of Florence, concerning a Moroccan citizen accused of the crime of
remaining on the Italian territory in violation of the order of the questore to leave the country
within 5 days (crime provided by article 14 (5 quater) TU), the judge observed that on 24
December 2010 the term for the transposition of the Return Directive by Member States had
expired. The judge held that the public administration had the obligation to conform to the
provision of the same directive, which were clear, precise and coherent. The public
administration had the obligation to conform to the principles and rules set out in the Returns
Directive, such as, in particular, that of ‘granting a personalized term for voluntary
repatriation’ first. Since the public administration did not grant such a term, the judge ordered
that the person accused in the main proceedings was released following the implicit
abrogation of the crime as contrasting with superior European law.
_3_Voluntary assisted repatriation
Voluntary assisted repatriation was introduced in 1998 for vulnerable migrants such as
unaccompanied minors, with the aim of assisting them in the process of family reunion in
their country of origin. The L. No 189/2002 (Bossi-Fini) enlarged the scope of assisted
voluntary repatriation to include victims of humanitarian emergencies, asylum seekers and
refugees, or persons who retired their asylum request. At present, programs of assisted
voluntary repatriation are open to irregular migrants subject to return proceedings.
The Ministry of Interior-Department of Civil Liberties and Immigration, in cooperation with
international or inter-governmental organizations promotes programs for voluntary
repatriation based on conventions with the National Association of Italian Municipalities
(Associazione Nazionale Comuni Italiani or ‘ANCI’) and with the International Organization
for Migrations, for the following categories of people:
195
For critical comments on the ransposition of the Repatriations Directive into the Italian legal system on his
point see http://www.meltingpot.org/articolo16169.html accessed 20 April 2013.
73
a) Asylum seekers, refugees and persons who enjoy humanitarian protection, in
partnership with ANCI and with the System of Protection for Asylum Seekers and
Refugees (Sistema di protezione per Richiedenti asilo e Rifugiati or ‘S.P.R.A.R’),
provided by art. 32 of the Bossi-Fini law (856 persons have been repatriated till 2008
included).
b) Victims of trafficking, including minors, in compliance with art. 8 of the Additional
Protocol to the UN Convention against organized transnational crime signed in
Palermo in December 2000.
The Ministry of Interior set guidelines for the implementation of voluntary assisted
repatriation programmes. In the guidelines196, the Ministry specifies the criteria which should
be used to prioritize the requests of voluntary/assisted repatriation. The law requires the to
prioritize the cases of vulnerable migrants (minors, pregnant women or breastfeeding, etc.).
The guidelines also contain the criteria that the international or intergovernmental
organization must possess to participate in a voluntary repatriation program.
When the TCN is accepted in a voluntary repatriation program, the prefetto communicates it
to the questore (communication via web is also allowed). In this case the procedure for
expulsion by accompanying the person at the border is suspended. When there is evidence
that the person actually left the country, the prefetto informs the questore, and the questore in
turn informs the judge, who closes the proceedings against the person for the crime of illegal
migration, if initiated.
A person cannot benefit of a program of voluntary repatriation if: a) he/she has already
benefited of a voluntary repatriation program in the past; b) he/she did not leave the country
within the term granted for voluntary repatriation; and c) if the expulsion is inflicted as a
criminal sanction (alternative to detention). If the person who is admitted to the voluntary
repatriation program is detained in a CIE, this person must remain there until the date set for
the removal. In this case the maximum limits of detention in a CIE apply. If the person does
not comply with the voluntary repatriation programme, the questore carries out the expulsion
by accompanying the person at the border.
In the past few years a number of TCN migrant workers regularly employed in Italy lost their
jobs as a result of the economic crisis. Being at risk of becoming illegal, they decided to
return to their country of origin. Voluntary repatriation programs may be particularly helpful
for this new category of migrants.197
196
Decreto del Ministro dell’Interno (Decree of the Ministry of the Interior of 27 october 2011) available at:
http://www.libertaciviliimmigrazione.interno.it/dipim/export/sites/default/it/assets/DECRETO_27_ottobre_2011
.pdf accessed 21 April 2013.
197
Avail;able at: http://www.italy.iom.int/index.php?option=com_content&task=view&id=193&Itemid=46
accessed 21 April 2013.
74
Between June 2009 and April 2012, 228 migrants returned their countries of origin through
programs of voluntary assisted repatriation within the project Partir, funded by European and
national resources. They were mostly young people (134), Morocco was the country of origin
for 71 of them, and 50 of them were granted international protection. Campania is the region
where the higher number of interventions took place: 93 migrants were assisted. The average
cost of each voluntary assisted repatriation was 5.800 euro198.
Assisted voluntary repatriation programs are costly, therefore the number of migrants who
can actually benefit of such programmes is restricted to very few people. The Commissioner
for Human Rights of the Council of Europe Nils Muižnieks, in his report after the visit in
Italy from 3 to 6 July 2012 reported that, on the basis of information given by the staff
working in the CIE Ponte Galeria, the detainees who can benefit of a voluntary assisted
repatriation program are very few. This is due to the lack of funding.199
_4_Non-custodial measures and their judicial validation
When a term for voluntary repatriation is granted, the questore orders one or more of the
following measures in order to avoid the risk that the person absconds200:
a)deposit of passport or equivalent ID. The document is returned to the person on the day
of departure;
b)obligation to stay at a certain place previously individuated where the person can be
located;
c)obligation to report to the police at given days and times.
These measures are issued by motivated decree in writing, which becomes effective when it
is notified to the person concerned. The notification must contain information on the right to
file counter-submissions to the giudice di pace201. Since these measures restrict personal
freedom, they have to be validated by a judicial authority. The questore must inform the
competent giudice di pace within 48 hours from the time when the measure was notified.
Within the next 48 hours the giudice di pace must validate the measure if the legal
198
Data from IOM, available at:
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214246
0&SecMode=1&DocId=1925946&Usage=2 accessed 21 April 2013.
199
Available at:
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214246
0&SecMode=1&DocId=1925946&Usage=2 at 180, accessed 21 April 2013.
200
According to article 7(3) Directive 115/2008/EC Member states are allowed to impose obligations aimed at
avoiding the risk of absconding such as regular reporting to the authorities, deposit of passport or other valid ID,
stay at a certain place during the period granted for voluntary repatriation. Italian law imposes the following
conditions for granting a term for voluntary repatriation: the TCN to be expelled possess a valid passport or
other equivalent ID; there is no need to carry out further checks on his identity or nationality; the person does
not constitute a thread for security.
201
Article 13 (5.2) TU.
75
requirements are met. The person concerned has the right to request the modification or the
revocation of the measures. The giudice di pace can modify or revoke the measures after a
consultation with the questore who issued the measure202. The law does not expressly provide
any appeal against the measure. However, according to a constitutionally oriented
interpretation of the law, it should be possible to file an appeal to the Corte di Cassazione. In
fact, Article 111 (7) of the Italian Constitution provides the appeal to the Corte di Cassazione
always against measures restricting personal freedom.
Compliance with the conditions indicated in the decree is paramount. The TCN who violates
one of the measures once it has been validated by the giudice di pace is liable to payment of a
fine (contravvenzione) between 3.000 and 18.000 Euro203. Moreover, the benefits of
voluntary repatriation cease immediately and the person is immediately accompanied at the
border. In this case there is no need to request the authorization called nulla osta204 to the
judge when criminal proceedings had been initiated against the person. If it is not possible to
carry out the removal immediately, the questore disposes administrative detention or orders
the person to leave the country within seven days (article 14 (1-bis) TU, as modified and
integrated by the D.L. No 89 of 23 June 2011, converted into L. No 129 of 2 August 2011;
see below § 5).
_5_Foglio di via
If it is not possible to place the foreign national in a detention centre or if, after the maximum
term for detention had expired, the person has not been yet repatriated, the questore orders
the foreign national to leave the territory of the State within seven days. The order is
communicated to the person concerned in writing and informs him/her of the consequences
of the illegal stay on the territory of the State in terms of criminal liability and restrictions to
access the country in the future. The questore’s order may include the presentation to the
person concerned of the documents necessary to go to the diplomatic mission or consular post
of his country in Italy, and also to return to the country of origin or, if that is not possible, to
the country from which he came (Article 14 (5-bis) TU, as modified by DL No 94 of 23 June
2011, and then substituted by DL No 89 of 23 June 2011 converted into L No 129 of 2
August 2011).
If the TCN concerned does not comply with the intimation to leave the country and remains
on the Italian territory without a valid justification, this person is liable to a fine between
10.000 and 20.000 euro (Article 14 (5-ter) TU). If the person is not detained in prison
(following a criminal conviction) the questore issues an expulsion order for violation of the
202
Article 13 (5.2) TU.
203
Article 13 (5.2) TU.
204
The nulla osta is required normally when investigations and criminal proceedings are initiated against the
person who has to be expelled and is suspect of a crime.
76
order to leave the country under article 14 (5-bis) TU. In this case the authority can order the
person concerned to be detained in a CIE.
_6_Residence permit for asylum seekers
As mentioned above, normally, when the asylum seeker is not detained, the questore issues a
temporary residence permit which is valid for three months205. This residence permit can be
renewed until the end of the procedure for the recognition of international protection. The
prefetto determines the place of residence or the area where the asylum seeker is free to move
until the end of the proceedings206. This provision was introduced by D.lgs. 159/08. Before
2008, asylum seekers and persons requesting international protection were free to move
within the Italian borders until the end of the proceedings. The freedom of movement of the
asylum seekers and people requesting international protection has been restricted since then.
However, this norm is not often applied in practice.
205
Article 4 (1) D. Lgs. 140 of 30 may 2005.
206
Article 7 (1) D. Lgs. 25/2008, as amended by D.Lgs. No 158/2008.
77
Chapter IV
Detention of irregular migrants and asylum seekers in a state of emergency
_1_State of emergency: definition and examples
The state of emergency is declared in certain situations established by law, when exceptional
circumstances call for extraordinary responses in order to manage the emergency and
maintain or restore order.
European Law
In the area of immigration, European law defines ‘emergency situation’ as cases where a
great number of TCNs to be returned places a heavy burden on the detention facilities, or on
the administrative or judicial staff of a Member State in a way that could not have been
anticipated or foreseen (Article 18 (1) Return Directive). In response to an emergency
situation, the Member State concerned is allowed to derogate to the application of European
law in order to respond more efficiently to unexpected exigencies. In particular, a Member
State is exempt from the obligation to provide in the shortest time possible a judicial review
or an appeal to a judicial authority against the detention order (Article 15(2) Returns
Directive). Also, the Member State concerned is allowed to take urgent measures on
detention conditions, derogating from the obligation to provide special facilities for the
detention of irregular migrants and persons requesting international protection ( provided by
Article 16(1) Returns Directive) and from the obligation to provide a suitable accommodation
for families in detention, guaranteeing respect for their family and private life (provided by
Article 17(2) Returns Directive). The regime of derogation is only allowed while the situation
of emergency is lasting. The Member State must inform the Commission when it takes
extraordinary measures and when the circumstances causing the situation of emergency
ceases (Article 18 (2) Returns Directive).
The Directive 2001/55/EC of 20 July 2001, on minimum standards for giving temporary
protection in the event of a mass influx of displaced persons207 was transposed into Italian
law by the D.L. No 85 of 7 April 2003. ‘Temporary protection’ is defined in this law as ‘a
procedure of exceptional character to provide, in the event of a mass influx or imminent mass
influx of displaced persons from third countries who are unable to return to their country of
origin, immediate and temporary protection to such persons, in particular if there is also a risk
that the asylum system will be unable to absorb this influx’ (Article 2 (1) (a) D. Lgs.
85/2003). This definition corresponds to the one in Article (2) (a) of the directive mentioned
above. The definition of ‘displaced person’ is also wide, as it includes: ‘third-country
nationals or stateless persons who have had to leave their country or region of origin, or have
been evacuated, in particular in response to an appeal by international organizations, and are
unable to return in safe and durable conditions because of the situation prevailing in that
country, who may fall within the scope of Article 1A of the Geneva Convention’. The scope
207
Since its adoption, the Council never adopted a decision establishing a mass influx of displaced persons,
binding in all Member States.
78
of application of temporary protection is wide, as it applies to persons who have fled areas of
armed conflict or endemic violence; and to persons at serious risk of, or who have been the
victims of, systematic or generalised violations of their human rights (Article 2 (1) (c) of D.
Lgs. 85/2003). It is unclear whether this broad definition would also allow for inclusion of
persons escaping from their country of origin due to environmental calamities, however,
temporary protection has never been used in these circumstances.
Temporary protection measures offer protection to a group of misplaced persons, therefore
there is no need to prove the risk or danger in relation to a single person. According to Italian
law, while asylum, international and humanitarian protection confer a subjective individual
right to the person, temporary protection only confers an expectation of protection. This
expectation turns into a right when an act with normative force, the Council Decision adopted
by a qualified majority on a proposal from the Commission, established the existence of a
mass influx of displaced persons (Article 5 of the Directive 2001/55/CE). Following the
Council Decision, the President of the Council of Ministers establishes by decree the general
conditions to grant temporary protection (Articles 3 e 4, D. Lgs. 85/2003). The Council
Decision specifies the reception capacity of each Member State so that misplaced persons can
be distributed equally among their territories. Temporary protection regime ends at the date
set by the Council of the European Union, however it can be extended for further six months
up to a maximum of three years.
Italian Law
In general, the status of emergency allows the exercise of extraordinary powers, and
authorizes the taking of exceptional measures and provisions by the public authorities.
Italian law sets the conditions for declaring the status of emergency in art. 5 (1) of L. No
225/1992 in the cases provided by the same law (including natural calamities and event
caused by human activities, as specified in Article 2 L No 225/1992). The President of the
Council of Minister specifies by decree the norm which can be derogated and the new
discipline to apply during the status of emergency.
In the field of immigration there are specific dispositions in force. The government can issue
exceptional measures concerning the reception of migrants in extraordinary situations. The
President of the Council of Ministers, in agreement with the Minister of Foreign Affairs and
other Ministers, issues ‘temporary protection measures’, which may derogate from the law on
immigration in force. These temporary protection measures maybe decided for serious
humanitarian reasons, in case of war, natural calamities, or other particularly serious events
occurring in non-European countries. The government informs the Parliament of the adoption
of such measures and reports to the Parliament with regards to their implementation (Articles
20 and 5 (6) of the TU; and Article 11 (1) (c-ter) of the D.P.R. 394/99)
In the aftermath of the revolts and conflict known as the ‘Arab Spring’, on 12 February 2011
the President of the Council of Ministers declared the status of emergency on the Italian
79
territory due to the exceptional influx of people from North African countries, lasting until 31
December 2011, under Article 20 TU.
On 5 April 2011 the President of the Council of Ministry, on the basis of article 20 TU,
issued a decree208 establishing humanitarian measures of temporary protection concerning
assistance and stay in for third country national citizens. These measures applied to citizens
of the North African countries who entered the Italian territory between 1 January 2011 and 5
April 2011. The decree provided that the questore issued a residence permit for humanitarian
reasons valid for six months, following the verification of the person’s nationality (according
to articles 9, paragraph 6, and 11 paragraph 1 (c ter) D.P.R. 31 August 1999 No 394). The
temporary permit could not be granted in the following cases: 1) the person entered the
Italian territory before 1 January and after 5 April 2011; 2) the person was socially
dangerous; 3) the person was reached by a valid expulsion order before 1 January 2011; 4)
the person was suspect of a serious crime for which the arrest in flagrancy is obligatory or
facultative. The initial period of six months was later extended to further six months, under
the same conditions, by a decree of the President of the Council of Ministries on 6 October
2011. The permit allowed the holder to circulate in the Schengen area, it had to be requested
within 8 days from the date of publication of the decree, and was it issued under a procedure
of urgency. Holders of a different residence permit, for example for the recognition of
international protection, could request the conversion into a permit for humanitarian reasons.
In this case the permit could only be converted if the person previously retired the request for
international protection or if this request was rejected. However, the holder of the permit for
humanitarian reasons could request international protection at any time. In case the request
for a permit for temporary protection was rejected or if the permit for temporary protection
was retired, the person had to be expelled according to articles 10 and 13 TU. Expulsion had
to be carried out immediately by forcibly accompanying the person at the border in case there
was a risk of absconding.
The Order No 3970 of the President of the Council of Ministries, issued on 21 October 2011
introduced further urgent dispositions to face the humanitarian emergency on the national
territory in relation to the exceptional influx of citizens from North African countries. It was
established that for the whole duration of the humanitarian emergency, due to an exceptional
influx of unaccompanied minors coming from north Africa, any licensed or accredited
daycare centre (comunita’ di accoglienza per minori) could derogate to the capacity limits
provided by law and regulation up to maximum 25% of the number provided in the same
dispositions (article 3).
208
Available
at:
http://www.serviziocentrale.it/file/server/file/DPCM%205%20aprile%202011%20ex%20art%2020%20protezon
e%20umanitarie.pdf accessed on 21April 2013. On 7.5.2011 the office of the President of the Council of
Ministries issued a Circolare, regulating the reception conditions for migrants who obtained the temporary
residence permit for humanitarian reasons.
80
The humanitairan emergency for North Africa, which started in February 2011, expired on 31
December 2012209. From 1 January 2013, the competencies and powers attributed to the
Protezione Civile (National civil protection system) were passed on to the Prefetture, the
offices of the prefetto. These offices are now responsible to carry on with the activities of
reception under the ordinary regime. The Ministry of the Interior was individuated as the
competent administration to coordinate the activities related to the humanitarian emergency
througout 2011 and 2012 (gia' di competenza del Commissario delegato di cui all'ordinanza
del Presidente del Consiglio dei ministri n. 3933 del 13 aprile 2011 e successive
modificazioni).
_2_ CIET (Temporary centres for identification expulsion): the derogation to legal
requirements concerning the decision to detain
In order to manage the influx of migrants from North Africa, three existing reception centres
were activated in Santa Maria Capua Vetere (CE)-Caserma Fornaci; in Palazzo San Gervasio
(PZ) and in Trapani – Kinisia by the Delegate Commissioner for humanitarian emergency.
On 21 April 2011 the President of the Council of Ministers issued the order no 3935 210, by
which the legal status of these centres (and of the people accommodated there) was
transformed with immediate effect (and until 31 December 2011) from reception centres into
CIEs, where the TCNs coming from North Africa had to be detained, if they did not satisfy
the requisites of temporary protection permit. The order destined 6.000.000 Euros to convert
these structures according their new function. Detention conditions in these centres were
particularly bad. The reception centre in Kinisia, for example, was a tent camp in an open
field, closed by three lines of containers. This centre had the function to collect people of
Tunisian nationality in order to speed up the removal process, in compliance with the
readmission agreements with Tunisia211. Jean Leonard Toualdi, MP, after his visit to the
centre in June 2011, reported that 48 migrants were detained in this camp, consisting only of
six tents; no recreational activity was allowed. The MP reported that person detained in
Kinisia were responsible of acts of self-inflicted arm; that among the detainees there were
four transsexuals of Moroccan nationality, who requested to be transferred in a different
facility for safety reasons; that some of the detainees had requested international protection
and were not promptly transferred in a CARA.
_3_ Access restrictions to detention centres
The Circolare No 1305 – 11050/110 (4) of 1 April 2011 issued by the Ministry of Interior
restricted access to the reception centers (including CIE and CARA) to the staff of UNHCR,
Organizzazione internazionale delle Migrazioni; Croce Rossa Italiana; Amnesty International
209
Ocdpc n. 33 del 28 dicembre 2012: regolamento della chiusura dello stato di emergenza umanitaria e rientro
nella gestione ordinaria da parte del Ministero dell'interno e altre amministrazioni competenti. Available at:
http://www.protezionecivile.gov.it/jcms/en/view_prov.wp?contentId=LEG37002, accessed on 21 April 2013.
210
Available at: http://www.meltingpot.org/IMG/pdf/OPCM_3935_21_aprile_11.pfd, accessed on 21 April
2013.
211
On 5 April 2011 Italian and Tunisian government signed an agreement for the prevention and contrast to
illegal migration and repatriation of illegal migrant from Italian coasts.
81
Medici senza frontiere, Save the Cildren, Caritas, and the associations which at that time
were implementing projects funded by European or national funds in the centres. This
administrative directive was justified by the need not to ‘obstruct’ the reception activities in
the context of the massive influx of migrants from North African countries. From April to
November 2011 access to CIE and CARA was denied to any person who did not belong to
the organizations listed in the administrative directive mentioned above. Even Members of
Parliament have been denied access to CIEs and CARAs following the ministerial directive.
Following discussions in Parliament, they were finally allowed access. However, this
possibility was given only to members of the EU parliament, members of the Senato (high
Chamber), and members of Regional Assemblies. Journalists were denied access. An appeal
against this ministerial directive was filed at the Administrative Tribunal of Lazio (TAR
Lazio). The appellant alleged that the infringement upon the right of information and the
freedom of the press (provided by art. 21 Italian Constitution and art, 10 of the European
Convention on Human Rights) imposed by this measure were not proportionate nor justified:
the mere reference to an emergency situation was not sufficient to justify the violation of
these fundamental rights. The appellants also alleged an excess of power from the
administration, in respect to the absolute and indiscriminate access restriction for broad
categories of people, regardless of the reasons for the request to access the centres and of the
conditions or situation in the centre. The appellants alleged that in case access restriction
were truly due to the need not to interfere with the activities within the reception/detention
centres, it would have been theoretically possible to grant access to the centre at certain
times and under certain conditions, taking into consideration the situation in the centre. The
appellant alleged that no investigations were made in order to assess whether the absolute
denial of access to the centres for journalists was justified in the light of the situation and if
alternatives were available. Moreover, in the opinion of the appellants, the Circolare did not
determine the time limits for the restriction of access to the centres. The appellants also
alleged that the Circolare created an unjustified disparity of treatment, and that granting
access to those associations which were currently implementing projects in cooperation with
the Ministry of Interior was a clear sign that the alleged ‘situation of emergency’ which
would supposedly justify the restriction of access to the centres dids not exist.
A civil campaign was initiated by the association LasciateCIEntrare; Mps and journalists
protested throughout 2011, requesting the government to restore the right to access the
detention centres and the reception centres inorder to exercise the right of freedom of
information and freedom of the press212. While proceedings were pending, the Ministry of
Interior retired the measure and restored the previous regime for accessing detention centres.
This notwithstanding, the association LasciateCIEntrare, denounces that access to the CIE is
still difficult for journalists213.
212
Available at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=003198 accessed 21 April 2013.
213
Available at: http://www.openaccessnow.eu/it/appello/ accessed 21 April 2013. The association
LasciateCIEntrare was constituted in response to access restrictions to the CIEs and CARAs established by the
government in 2011. The association is carrying out a campaign for the right of information on the conditions
82
A clear indication that the problem still exists is that on 8 October 2012, at the end of his
mission to Italy, the United Nations Special Rapporteur on the human rights of migrants,
François Crépeau, recommended to to the Government of Italy to: “Guarantee the full
access by international organisations, including UNHCR and IOM, civil society organisations
and lawyers to all areas where migrants are held or detained.”
Administrative authorities exercise a high discretion in handling requests to access the
detention centres as denounced by NGOs and civil rights assiciation conducting in Italy the
European campaign Open Access Now.
As indicated by the special rapporteur: “There is no general authority with investigative
powers to monitor the activities of all migrant detention call places where migrants are held. I
note the Praesidium Project is a positive step, as it provides a framework for access to some
centres for a coalition of organisations including the IOM, UNHCR, the Red Cross and Save
the Children. Yet, these organisations are still not given full and continuous access to all
centers, most notably the temporary centers where the Tunisians and Egyptians are held for
quick processing and removal.”214
_4_Less strict application of the rules concerning procedural guarantees for the
migrants
On 20 March 2002 the status of emergency was declared in order to face the exceptional
influx of third-country national on the Italian territory. It was then extended with subsequent
measures215. In 2009 the status of emergency has been extended until 31 December 2010 ‘to
pursue the activities aimed at contrasting and managing the influx of third-country nationals’
(Decreto del Presidente del Consiglio dei ministry 19 novembre 2009). Then, the status of
emergency to ‘contrast the exceptional influx of TCNs’ was further extended until 31
December 2011, and then again extended until 31 December 2012216. One of the
characteristics of the ‘status of emergency’ is its temporary character. The status of
emergency declared by the Italian authorities instead seem to be ‘permanent’. However, a
permanent status of emergency sounds like a contradiction in terms. In 2012 the government
within detention centres. Available at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=004106
accessed 21 April 2013.
The mobilitation is promoted by the following associations: Federazione nazionale della stampa, dalla Cgil, da
Terre des Hommes, Rete Primo Marzo, Arci, Medu, Open Society Foundations, Antigone, Studio legale Lana,
Associazione Antigone, Redattore Sociale, Borderline Europe, Associazione Class Action Procedimentale,
Archivio delle memorie migranti.
214
Available at: http://oppenheimer.mcgill.ca/UN-Special-Rapporteur-urges-Italy accessed 21 April 2013;
available at: http://oppenheimer.mcgill.ca/UN-Special-Rapporteur-on-the-Human accessed 21 April 2013
215
Available at: http://www.governo.it/Governo/Provvedimenti/dettaglio.asp?d=65527 accessed 21 April 2013.
216
Available at:
http://www.governo.it/Governo/Provvedimenti/dettaglio.asp?d=65527&pg=1%2C2062%2C3091&pg_c=2
accessed 21 April 2013.
83
destined eighteen millions Euros to open the CIE in Santa Maria Capua Vetere and Palazzo
San Gervasio. The centre in Kinisia is now closed and the detainees are now in the new CIE
of Milo (Trapani). The practice is to send to this centre all the Tunisian citizens subject to a
procedure of forced return from all over Italy. The flights to Tunisia depart from the airport
of Palermo, and Milo is the closest detention centre to the airport. Tunisian consular
authorities carry out a summary identification procedure . On the basis of the bilateral
agreements with the Tunisian government, signed on 5 April 2011, the consular authority
carries out the identification procedure at the airport right before the departure of the removal
flight217.
Another derogation to the standard procedure is the extension of the terms of detention,
especially before a valid detention decree is issued by the authorities.
The use of camps as detention facilities constitutes an unlawful derogation to the discipline
on administrative detention, which provides that detention should only take place in
specialized facilities and when it takes place in prisons, the detainees must be separated from
other detainees convicted for the commission of crimes.
The prohibition to journalist and other categories of people to access the centres violates the
law.
Throughout 2011 the normal process of transferring migrants from the centres in Lampedusa
was slowed down and in certain periods transfers were not carried out at all. Paolo Cuttitta
denounces that this strategy of the Italian government appeared to be purposedly designed to
create the perception of an emergency, in order to justify extraordinary measures and several
derogations to the standard regime on reception, detention and repatriation of irregular
migrants218.
Avvocato Giuseppe Buscaino, a senior immigration lawyer in Trapani, reports that in a
significant number of cases, migrants transferred from Lampedusa to the CIE in Milo after a
permanence in the reception centres there, formalize for the first time the request for
international protection. However it is not clear why in all these cases the requests were not
formalized before in the reception centres in Lampedusa.
217
The existence of this practice was confirmed by Avvocato Giuseppe Buscaino during an interview on 27
December 2012 in Trapani (Palermo) Italy.
218
Paolo Cuttitta: Lo spettacolo del confine (Lampedusa) 2012. See also: http://www.gds.it/gds/edizionilocali/agrigento/dettaglio/articolo/gdsid/229749/ accessed on 21 April 2013; the situation in Lampedusa
becomes critical today and the local authorities request the intervention of the central government for the safety
of migrants and residents. Available at: http://www.gds.it/gds/edizionilocali/agrigento/dettaglio/articolo/gdsid/229749/ accessed 21 April 2013.
84
Chapter V
Conditions of detention of migrants and asylum seekers
_1_Limitation of the right to freedom of person and freedom of movement
Italian immigration law provides limitations of the right to freedom of person and to freedom
of movement in some cases (pre-removal detention; detention of asylum seekers) as
discussed in previous chapters.
Eropean law requires detention to take place in specialized detention facilities, not in prisons.
If however the state cannot fulfil this obligation, and is ‘obliged to resort to prison
accommodation’ the TCN in detention must be kept separated from ordinary prisoners
(Article 16 (1) Returns Directive).
There are four different types of centers for the reception/detention of TCNs without a
residence permit and asylum seekers:
a)Centri do Primo Soccorso e Assistenza (CPSA). These are facilities located in proximity
of disembarking places and which are dedicated to the reception of migrant for the
time strictly necessary to transfer them to other centres (approximately 24/48 hours);
b)Centri di Accoglienza (CDA). These facilities are destined to the reception of migrants
for the time necessary to take the appropriate administrative measures according to
their legal status on the italian territory219;
c)Centri di Accoglienza per i Richiedenti Asilo (CARA). These facilities are destined to
the reception of asylum seekers for the time strictly necessary to carry out
identification procedures or for the Territorial Commission to process their asylum
request220;
d)Centri di Identificazione ed Espulsione (CIE). These are facilities where the irregular
migrants are detained for the time necessary to carry out the procedures for the
execution of the expulsion order221.
These facilities can be classified either as ‘open centers’ or ‘closed centers’ according to the
degree of restriction of personal freedom of the ‘guests’/detainees. The regulation
implementing TU provides that TCN can only be detained in a CIE according to article 14 (1)
TU (see Chapter I above), or in other kind of facilities when there is the urgent need to rescue
and assist them (article 21 (4) TU).
_1.1._ Open centers
219
220
221
Law No 563 of 29 December 1995, also called ‘Legge Puglia’.
D.lgs No 25 of 28 January 2008.
Law No 40 of 6 March 1998.
85
CPSA, CSA and CARA are open centres. The purpose of the Centri di Acoglienza
(Reception Centres – CDA) is to offer rescue and first aid to the TCN arriving on the Italian
territory, who is often in urgent need of medical and other care after a dangerous journey in
precarious conditions. Other facilities with the same function are the Centro di primo
soccorso e accoglienza (Centre for first aid and reception – CPSA) and the Centro di
primissima accoglienza (Centre of earliest assistance). Normally, a person should remain in
any of those centers only for the time strictly necessary to carry on medical checks and
assistance where needed; verify the identity and the entitlement to remain on the Italian
territory and eventually dispose the removal.
There are currently 4 active centres of this kind222:
Agrigento, Lampedusa – 381 places (it is a CPSA);
Cagliari, Elmas – 220 places (it is a CPSA);
Caltanissetta, Contrada Pian del Lago – 360 places (CDA);
Lecce – Otranto (Centro di primissima accoglienza);
Ragusa, Pozzallo (CPSA) – 172 places
The normative basis upon which CDA and CPSA are constituted is article 23 of the
regulation implementing the TU (D.p.r. No 394 of 31 August 1999): ‘the activities of
reception, assistance, including health care, carried out in the rescue of the TCN can be
carried out in places different from the CIE and for the time strictly necessary to transfer
them to a CIE or to provide specific assistance measures, which are in the competence of the
State’223. The managerial specifications for offer requests qualify as ‘exceptional’ the
possibility that the migrant stay in the center for more than 48 hours, and refer to law for the
regulation of such situation. The law does not clearly set the requirements and the standards
that the centre must satisfy, as if the idea that the permanence in the CDA and CPSA should
be very limited in time would somehow justify the lack of a clear legal discipline. However,
it is assumed that the permanence of the migrants in such centres should be very short.
Lampedusa
222
Available at
http://www.interno.gov.it/mininterno/export/sites/default/it/temi/immigrazione/sottotema006.html accessed 21
APril 2013.
223
Attività di prima assistenza e soccorso: 1. Le attività di accoglienza, assistenza e quelle svolte per le esigenze
igienico-sanitarie connesse al soccorso dello straniero possono essere effettuate anche al di fuori dei centri di cui
all'articolo 22, per il tempo strettamente necessario all'avvio dello stesso ai predetti centri o all'adozione dei
provvedimenti occorrenti per l'erogazione di specifiche forme di assistenza di competenza dello Stato. 2. Gli
interventi di cui al comma 1 sono effettuati a cura del prefetto con le modalità e con l'imputazione degli oneri a
norma delle disposizioni di legge in vigore, comprese quelle del decreto- legge 30 ottobre 1995, n. 451,
convertito dalla legge 29 dicembre 1995, n. 563.
86
Lampedusa is an island situated between Sicily and Africa. This is a strategic position in the
Mediterranean, as it is the first firm land reachable in the navy cross from North African
coasts towards Italy. For this reason migrant’s boat often disembark on this island.224
Migrants are also brought there after being rescued at sea.
In Lampedusa there are two centres: an initial reception and accommodation centre (CSPA)
in Contrada Imbriacola and a reception centre where the ex military NATO base Loran was
located. The capacity of the CSPA varies from 400 to 1000 places, whilst that of the Loran
centre is of 180 places. In a recent report by the Council of Europe Ad Hoc Sub-Committee
(Sottocommissione dell’Assemblea Parlamentare al Consiglio d’Europa, November 2011)
following a visit of the ad hoc commission in Lampedusa between 23 and 24 May 2011, the
conditions of detention in the CSPA of Contrada Imbriacola are defined ‘decent’225. Instead,
the status of the Loran detention centre is defined ‘precarious’ and the conditions in the
centre are considered to be far from satisfying the relevant international requirements and
standards226. Moreover, the report indicates that the centres are not suited to accommodate
unaccompanied minors in such a way that guarantees their separation from adults227 (para
37).
As already mentioned, under the law, persons retained either in CSPA or CDA should not be
deprived of their personal freedom. However, the above mentioned report denounces that
migrants are not free to leave the centre. For example, the members of the committee report
224
In a report issued on 12 July 2012, the UNCHR recommends that the ordinance declaring that Lampedusa ‘is
not a safe place for disembarking migrants rescued at sea’ (Ordinance N.15 of 24.9.2011) is revoked as soon as
possible. The Commissioner notes with interest an interview given on 24 May 2012 by the Italian Minister for
International Cooperation and Integration, Andrea Riccardi, in which he expressed his view that the decision to
close the reception centre and the harbour would have to be reversed and that Lampedusa should be equipped to
receive
asylum
seekers.
Available
at
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214309
6&SecMode=1&DocId=1926434&Usage=2 para 149, accessed 21 April 2013.
225
‘At the time of the visit, 804 people were housed there. Reception conditions were decent although very
basic. The rooms were full of mattresses placed side by side directly on the ground. The buildings, which are
prefabricated units, are well ventilated because the rooms have windows and the sanitary facilities seem
sufficient when the centre is operating at its normal capacity. At the time of the Ad Hoc Sub-Committee’s visit,
the centre was divided in two. One part was reserved for persons arriving from Libya and unaccompanied
minors (including unaccompanied Tunisian minors). The other part, a closed centre within the centre (itself
closed),
was
reserved
for
Tunisian
adults’
Available
at:
http://assembly.coe.int/CommitteeDocs/2011/amahlarg03_REV2_2011.pdf para 33, accessed 21 April 2013.
226
The rooms were full of mattresses placed directly on the ground, but in much greater numbers than at the
main centre. Sanitary facilities were inadequate, with only five provisional units (each comprising 3 showers, 3
toilets and 3 washbasins), which were situated outside the building. The people housed at this centre complained
about the difficulty of communicating by telephone with their next of kin. The director of the centre confirmed
that the Loran base had only one landline and that the mobile phone signal was very weak in that part of the
island. The centre does not meet all the safety standards either (it would seem in particular that the fire alarm is
defective and that the electric circuit is dangerous) and men, women and children are not properly separated’ .
Available at: http://assembly.coe.int/CommitteeDocs/2011/amahlarg03_REV2_2011.pdf para 34, accessed 21
April 2013.
227
Available at: http://assembly.coe.int/CommitteeDocs/2011/amahlarg03_REV2_2011.pdf para 37 accessed 21
April 2013.
87
that as a result of the suspension of returns to Tunisia: ‘some 190 Tunisians were being held
on the island at the time of the Ad Hoc Sub-Committee’s visit. Some of them had been there
for more than 20 days, in a closed centre inside the closed Contrada Imbriacola centre.
Despite the authorities’ claim that the Tunisians were not detainees because they were not in
cells, the members of the Sub-Committee found that the conditions to which they were
subjected were similar to detention and deprivation of freedom.228’ The detention centre in
Lampedusa are not suitable detention centres for migrants229. Migrants shouls not be detained
there, instead they have been detained for long periods of time, in particular Tunisian ones.
The migrant should be transferred as soon as possible to other centres in Italy. When migrants
have been kept in those centres for long periods of time, violence outbreaks and episodes of
self inflicted harm occurred. In fact, the centres are not prepared to host the great number of
people arriving and they are unsuitable for stays of several days. The conditions in the centre,
coupled with the uncertainty of the migrants as to the duration of thier detention, generate
anger and frustration, often resulting in riots or desperate reactions. Often fights break out
between migrants of different origins, for example Somali and Eritreans, and between the
migrants and the police. On 20 September 2011 a fire destroyed part the CPSA in Contrada
Imbriacola, the migrants left the centre and episodes of violence broke between the police
and the migrants. The committee recommends that these centres remain CDA, open centres,
and that migrants are not held in de facto detention without the control of a judicial
autority230; it exhorted Italian authorities to improve the reception capacities of the island, the
conditions of the centers and to guarantee rapid transfer of migrants to other facilities in the
Italian territory. Also, the committee requested Italian authorities to give account of the legal
basis on which the migrants are detained and of the legal status of the TCN within the Italian
territory231.
228
Available at: http://assembly.coe.int/CommitteeDocs/2011/amahlarg03_REV2_2011.pdf para 54 accessed 21
April 2013.
229
Available at: https://wcd.coe.int/ViewDoc.jsp?id=1843033&Site=DC accessed 21 April 2013; available at
http://assembly.coe.int/CommitteeDocs/2011/amahlarg03_REV2_2011.pdf accessed 21 April 2013; available
at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=003440 21 April 2013.
230
While the members of the Ad Hoc Sub-Committee appreciate the Italian authorities’ concern to contain this
wave of irregular immigration from Tunisia, some rules have to be observed where detention is concerned. The
Contrada Imbriacola centre is not a suitable holding facility for irregular migrants. In practice, they are
imprisoned there without access to a judge. As already pointed out by the Parliamentary Assembly in its
Resolution 1707 (2010), “detention shall be carried out by a procedure prescribed by law, authorised by a
judicial authority and subject to periodic judicial review”. These criteria are not met in Lampedusa and the
Italian authorities should transfer irregular migrants immediately to appropriate holding facilities, with the
necessary legal safeguards, elsewhere in Italy.
231
Available at: http://assembly.coe.int/CommitteeDocs/2011/amahlarg03_REV2 _2011.pdf accessed on 21
April 2013.
88
ARCI232 volunteers reported that the conditions CSPA in Lampedusa were in fact comparable
to those in a detention centre. In the CSPA in Lampedusa there are different areas: one is
where there are the offices of the police and of the associations giving assistance to the
migrants, the medical centre and facilities for unaccompanied minors; one other area where
people coming from North Africa are accommodated; another area is where those coming
from the Sub-Saharan region are accommodated. ARCI volunteers report that the person
retained in the centres were not allowed to leave the section to which they were assigned in
the building (not even to go to the medical center or to another section). They were not even
allowed to leave the center altogether. The volunteers discovered that the duration of the stay
for each person varied from 4-5 days to weeks, and the person retained were not notified any
written document justifying the deprivation of their liberty. They were not given information
on their current situation and they were not informed on what would have happened to them
in the future.
ARCI reported a number of violations of the migrant’s rights: a) the migrants were not duly
informed of the law and the proceedings applicable to their situation; b) they were not
informed of their right to claim international protection and about the procedure to request it;
c) they were deprived of their liberty without an administrative order motivated in writing,
validated by the judge within 48 hours, and with the guarantee of their right of defence.
ARCI took legal action requesting the administrative authorities to explain the reasons and
the legal basis for the detention of the migrants throughout the summer in the year 2011. The
association formally requested the public prosecutor to initiate an investigation on those facts,
for the crime of ‘sequestro di persona’ (for inflicting an illegitimate deprivation of liberty to
the migrants detained in the centre). This request for investigation indicated that even if the
police who implemented the decision may not have been aware of the fact that their
behaviour was illegal, presumably the persons in charge who gave directions were aware of
the fact that they were acting illegally. This suggests that control mechanisms should be
activated when provided by law to check the decision of administrative authorities, or should
be provided for if they are not in place.
In 2011, at a time of massive influx of migrants, transfers should have happen frequently
from Lampedusa to other facilities in Italy. Instead, migrants were not transferred and stayed
in the overcrowded CARA and CDA in appalling conditions. Critiques have been raised to
the government’s (in)action as it looked like they wanted to create the conditions for an
emergency in order to get support from the European Union.
232
ARCI is a national association for social promotion, working in the field of immigration. This association
was authorized by the Ministry of Interior to send volunteers to Lampedusa in order to help UNHCR and IOM
in assisting and rescuing migrants throughout the summer in 2011.
89
The major of Lampedusa, Giusi Nicolini, declared that on 12 December 2012 there were 763
migrants, 80 of them minor, in a centre with a capacity of 300 places.. The major declared
that they have been living in those centres for weeks and months, in distressing conditions,
worsened by the cold temperature in winter and that their personal freedom was limited.
There were not recreational activities and the migrants stayed unoccupied all day. The major
reported that there have been alcohol abuses233.
On 12 December 2012, Save the Children informed against the unbearable situation of the
reception centres in Lampedusa. The centres are overcrowded and the atmosphere in the
detention centres is tense and riots occur. While some of the migrants (10) and
unaccompanied minors (31) were transferred to other facilities, in the centre there were 722
people. There were not sufficient beds or mattresses for accommodating all the migrants. The
reason for not transferring people was allegedly the lack of funds234.
The UNCHR Commissioner made the following reccomendations to Italian authorities: to
increase reception capacities and improve reception conditions on Lampedusa; to provide
appropriate facilities for unaccompanied minors; to clarify the legal basis of detentions and
observe procedural guarantees; and to “consider the requests by the population of Lampedusa
for support commensurate with the burden it has to bear, particularly in economic terms”.235
Centri di accoglienza per i richiedenti asilo
The CARA (Centri di accoglienza per i richiedenti asilo – reception centres for asylum
seekers), are regulated by D.p.r. No 303/2004 and by D.lgs No 25 of 28 January 2008. These
are facilities for the reception of asylum seekers who do not posses identification documents
or who have eluded border control. Since CARA have the purpose of receiving asylum
seekers for the time necessary to carry out the procedures for the request of international
protection, these are ‘open centers’. The freedom of the person and freedom of movement of
the person cannot be lawfully restricted. The ‘guests’ are free to leave the center during the
day.
233 Available
at:
http://palermo.repubblica.it/cronaca/2012/12/11/news/rivolta_nel_centro_di_lampedusa_sassaiola_tra_immigrat
i_sette_feriti-48560616/ accessed 21 April 2013.
234
Available at: http://www.ansa.it/web/notizie/rubriche/topnews/2012/12/12/Lampedusa-nuovo-allarmesovraffollamento_7944903.html accessed 21 April 2013.
235
Available at:
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214309
6&SecMode=1&DocId=1926434&Usage=2 para 150-154 accessed 21 April 2013.
90
There are currently 8 active CARA236:
d)Bari Palese, Area aeroportuale - 744 places
e)Brindisi, Restinco - 128 places
f)Caltanissetta, Contrada Pian del Lago – 96 places
g)Crotone, località Sant’Anna – 875 places
h)Foggia, Borgo Mezzanone – 856 places
i)Gorizia, Gradisca d’Isonzo – 138 places
j)Roma, Castelnuovo di Porto - 650 places
k)Trapani, Salina Grande - 260 places
The facilities in Ancona, Bari, Brindisi, Crotone and Foggia are used both as CDA and as
CARA. This creates a situation in which two different legal regimes apply to the same centers
in regards to different persons, which may generate confusions.
The asylum seeker should stay in a CARA for a period between 20 and 30 days while his
identity is being verified, or wile the proceedings for the recognition of international
protection is carried out. During this time the asylum seeker is allowed to leave the centre
during the day (permesso di uscita – permit to exit the centre). If there is the need to leave the
center for a longer period of time, they can request the prefetto to issue a temporary permit
for serious personal reasons or for reasons related to the examination of their request for
international protection. The prefetto must communicate the decision and the reasons
supporting it to the person concerned in writing in case the request is not approved. Leaving
the centre for longer than a day without a valid and certified reason (giustificato motivo –
justification) has the automatic consequence of terminating reception conditions. In such
cases the Commissione territoriale decides on the basis of the documents already produced or
acquired, without carrying out the audition of the person concerned. The asylum seeker in a
CARA enjoys all the guarantees connected to the request for international protection237. The
asylum seeker’s private life must be respected within the limits of the rules of common
behaviour provided by the centre’s regulation. This regulation must allow the asylum seeker
to leave the centre during the day. The law refers to regulation to set the characteristics and
236
Available at
http://www.interno.gov.it/mininterno/export/sites/default/it/temi/immigrazione/sottotema006.html accessed on
21 April 2013.
237
Article 20 (4) D.lgs. 25/2008: ‘La residenza nel centro non incide sull'esercizio delle garanzie inerenti alla
sua domanda, ne' sulla sfera della sua vita privata, fatto salvo il rispetto delle regole di convivenza previste nel
regolamento di cui al comma 5, che garantiscono comunque la facoltà di uscire dal centro nelle ore diurne. Il
richiedente può chiedere al prefetto un permesso temporaneo di allontanamento dal centro per un periodo di
tempo diverso o superiore a quello di uscita, per rilevanti motivi personali o per motivi attinenti all'esame della
domanda, fatta salva la compatibilità con i tempi della procedura per l'esame della domanda. Il provvedimento
di diniego sulla richiesta di autorizzazione all'allontanamento e' motivato e comunicato all'interessato ai sensi
dell'articolo 10, comma 4.’
91
the management conditions of the CARA, in cooperation with the local government238. These
rules must ensure that the asylum seeker receives a treatment that guarantees personal dignity
and the unity of the family. The law states that the permanence in a CARA does not affect in
any ways the guarantees inhering to the request for international protection, nor the person’s
private life, except for the obligation to comply with the rules of the centre (article 20 (4)
Dlgs 25/2008). The regulations must take into account the acts adopted by UNCHR, by the
Council of Europe and by the European Union. Access to CARA must always be guaranteed
to UNCHR representatives, lawyers, organizations operating in the field and authorized by
the ministry of interior.
Some CARA are at risk of being closed down because there are not sufficient funds, with
serious consequences for the asylum seekers accommodated there.239 Fights and riots have
been happening in the CARA240. The organization Medici Senza Frontiere (Msf) reported 7
episodes of attempted suicides in the CARAs. Msf’s critique to the centres is that in CIE,
CARA and CDA people with different stories and background are forced to live together241
and that the centres are not always able to supply specific assistance to vulnerable categories
of migrants.
Reception of asylum seekers and refugees
The reception system for asylum seekers is called SPRAR (Sistema di Protezione per
Richiesenti Asilo e Rifugiati – System of protection for asylum seekers and refugees). This
system is composed of approximately 150 projects run by local authorities and by private
associations and disseminated all over the Italian territory and counts 3150 places
approximately. The projects are funded by public funds. The conditions in the facilities are
overall adequate and the guests receive guidance and supporto to favour social and economic
inclusion; however the system does not provide sufficient places to accommodate the whole
population of refugees. When they are recognized refugee status, if there are no available
238
Article 20 (5) D.lgs. 25/2008: ‘Con il regolamento di cui all'articolo 38 sono fissate, le caratteristiche e le
modalità di gestione, anche in collaborazione con l'ente locale, dei centri di accoglienza richiedenti asilo, che
devono garantire al richiedente una ospitalità che garantisca la dignità della persona e l'unità del nucleo
familiare. Il regolamento tiene conto degli atti adottati dall'ACNUR, dal Consiglio d'Europa e dall'Unione
europea. L'accesso alle strutture e' comunque consentito ai rappresentanti dell'ACNUR, agli avvocati ed agli
organismi ed enti di tutela dei rifugiati con esperienza consolidata nel settore, autorizzati dal Ministero
dell'interno’.
239 Available at: http://www.gds.it/gds/edizioni-locali/enna/dettaglio/articolo/gdsid/228177/ accessed 24 April
2013.
240 Available at: http://www.gds.it/gds/edizioni-locali/agrigento/dettaglio/articolo/gdsid/229025/ accessed 24
April 2013.
241
Available at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=001397 accessed 24 April 2013.
92
places in the SPRAR system, these persons remain in the CARAs for prolonged periods of
time (for example six months). If they are not in CARAs and they lack sufficient means, they
may remain derelict in a status of social marginalization and indigence. A recent investigation
published on the New York Times denounces that 800 refugees squatted an abandoned
building, property of the University of Rome, called Salaam Palace242. On 28 January 2013
two Somali refugees (respectively 25 and 30 years old) died in Rome as a result of a fire they
lighted on to keep warm during the night243.
Recently, the Italian reception system for asylum seekers and refugees has been criticised for
its insufficiencies. German administrative courts have suspended transfers of asylum seekers
to Italy under the Dublin II regulation for the fear that in case the transfer was carried out the
person could find herself in a situation of indigence or destitution. At the time of writing,
applications for violation of article 3 of the European Convention on Human Rights in
consequence of transfers to Italy according to Dublin II regulation are pending in front of the
Strasbourg Court (applications against Sweden and Denmark have been recentry
communicated). Moreover, the European Court of Human Rights decided to apply the interim
measure according to Rule 39 in two applications lodged against Austria: the Court requested
the Austrian government to stay the applicants’ transfer to Italy until further notice.
_1.2_Closed centers
The Centri di Identificazione ed Espulsione (Centres for identification and expulsion, CIE)
are the facilities where irregular migrants are detained with a view to repatiration244. The
purposes of these centers are: to avoid the dispersion of irregular migrants in the Italian
territory and to guarantee the material execution of the expulsion orders. As mentioned
before, the maximum duration of the administrative detention in a CIE is currently 18
months.
There are currently 13 active CIE on the Italian territory245:
l)Bari-Palese, area aeroportuale – 196 places
m)Bologna, Caserma Chiarini – 95 places
n)Brindisi, Loc. Restinco - 83 places
o)Caltanissetta, Contrada Pian del Lago – 96 places
242
Available at: http://www.nytimes.com/2012/12/27/world/europe/the-italian-paradox-onrefugees.html?emc=tnt&tntemail1=y&_r=1& accessed 24 April 2013.
243
Available at: http://www.stranieriinitalia.it/attualitarifugiati_morti._unhcr_garantire_l_accoglienza_16550.html Accessed 24 April 2013.
244
Article 12 of the law No 40/1998 (also known as ‘Turco-Napolitano’ from the name of the ministers who
proposed this law).
245
Available at
http://www.interno.gov.it/mininterno/export/sites/default/it/temi/immigrazione/sottotema006.html
accessed 24 April 2013.
93
p)Catanzaro, Lamezia Terme – 80 places
q)Crotone, S. Anna – 124 places
r)Gorizia, Gradisca d’Isonzo – 248 places
s)Milano, Via Corelli – 132 places
t)Modena, Località Sant’Anna – 60 places
u)Roma, Ponte Galeria – 360 places
v)Torino, Corso Brunelleschi – 180 places
w)Trapani, Serraino Vulpitta – 43 places
x)Trapani, loc Milo - 204 places
The status of detainees is not that of a prisoner, however, the judicial authority does not have
the power to check the modalities of detention, as for criminal detention. If the detainees
escape they do not committ the crime of evasion, however they are not allowed to leave the
centre. If they leave the centre, the public authority must restore the restrictive measure. The
conditions of detention in the centres are normally higly restrictive of movement. Often there
is no possibility for outdoor recreation.
If there is the need of urgent medical treatment the person is hospitalized in a healthcare
facility246.
The daily management of the CIE and the services to the migrants are committed to private
companies through regular tender procedures.
The centres are controlled by public security agents to impede that detainees escape. The
public force can only enter the centre upon request of the centre’s managing company and in
exceptional cases of emergency. This nothwithstanding, the agents enter the centres on a
daily basis. In the regulation implementing the TU articles 20-23 regulate CIEs. These
dispositions are vague: for example the limits on the police’s exercise of power within the
CIE are not set by law. Surveillance measures and measures taken in order to restore the
limitation of freedom after attempts to escape are wholly under the discretion of the police or
administrative authorities and are not subject to the control of a judge247. Abuses by the
police against the migrants detained in CIE have been reported, including physical and
psychological violence. It has been reported that police uses violence against migrants who
attempted escaping from the detention centre after they are caught and brought back to the
246
Art. 21 (4) Regulation 31 august 1999 no 394.
247
It seems important to recall that there is no provision concerning the crime of torture in the Italian legal
system, although Italy signed and ratified the UN Convention against torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
94
CIE. There have been a number of petitions to the competent magistrate’s court, bringing
evidence of the lack of legitimation of administrative measures and actions, but until now
they rest without effect.
There is no common regulation by the Ministry of the Interior. This explains the different
norms and the different costs of the facilities and the changes of their regime overtime, for
example in relation to access for journalists and NGOs. Concerns have been raised regarding
the reduction of public fundung destined to the detention facilities due to the economic
crisis.248 The Commissioner for Human Rights of the Council of Europe recommends Italian
authorities not to lower the treatment below the minimum standards due to the spending cuts.
The lack of recreational activities is particularly preoccupying and needs to be ameliorated
immediately249.
The Rapporteur of the Human Right Commission François Crépeau indicated that in order to
change the existing situation it is necessary to establish a national authority with supervisory
functions on the CIE in order to level, harmonize, uniform, detention conditions, also by
adopting good practices of some CIE.
_1.2.1._Authorization to leave the center: authorities’ discretion
The TCN is generally not allowed to leave a closed centre (CIE). If a person leaves a closed
centre without the authorities’ authorization or does not observe the limits provided by it, the
authorities must restore the restriction of liberty of that person, who however is not liable of
the crime of ‘escaping’ (evasione). The ways by which the police must restore the detention
are not provided by law.
Instead, it is possible for asylum seekers to leave an open centre (CARA) during the day.
Article 20 (4) of D.lgs. 25/2008 provides that the rules of the CARA must guarantee freedom
to leave temporarily the centre during the day. The asylum seeker in a CARA can request to
the prefetto a temporary permit to leave the centre for periods longer than a day for serious
personal reasons or for reasons related to the examination of the request for international
protection. If the request is rejected, the prefetto must inform the person in writing and
provide reasons for the rejection. If the asylum seeker leaves the centre without justification
for periods longer than a day, reception conditions end.
_2_Standard detention conditions
248 As
it is provided in the attachment to the standars agreement form. Available at
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214246
0&SecMode=1&DocId=1925946&Usage=2 at p. 173-176, accessed 24 April 2013.
249 Available at:
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214246
0&SecMode=1&DocId=1925946&Usage=2 at p. 177, accessed 24 April 2013.
95
European law (Repatriation directive, recital 17), requires that TCN in detention are treated a
humane and dignified manner with respect for their fundamental rights and in compliance
with international and national law.
The CIE must in any case ensure full respect of the detainees’ dignity during detention250.
Consequently, detention conditions must be such that the necessary assistance is provided to
the detainee and the full respect of a person’s dignity is ensured. Article 20 (5) Dlgs 25/2008
states that the characteristics of the CARA and its management must ensure reception
conditions which guarantee respect for the personal dignity of the asylum seeker and the
unity of the family.
Whilst extremely precise and detailed dispositions regulate the detention conditions in
prisons: the dimention of the rooms, lighting, food, higene, visits and so on251, detention
conditions in the CIE are not specifically regulated by law.
Articles 20-23 of the regulation implementing the TU (D.p.r. No 394/1999) are related to the
centre’s funcitoning and management.
According to the indications of the Ministry of the Interior the services offered in the
detention centre are the following: cultural and linguistic mediation; psicological and social
assistance; information upon immigration legislation, rights and duties of the foreign person;
the relations between the guests and the institutions; entertainment; food distribution; barber;
laundry. The number of staff member and the breath of the services ought to be proportionate
to the number of detainees252. These standards must be respected, and the violation is liable
of criminal sanction. The minimum standards specified in the attachments to the convenzione
tipo say that 3 staff members should be provided for 50 detainees, 9 staff members if the
detainees are between 50 and 150, and above 150, every 20 detainees there must be one
additional staff member.
The regulation of the life within the centre is entirely devolved to the administrative
authorities’ regulation (prefetto, after consulting the questore), as well as the regulation of the
service supply within the centre (care of the fundamental needs of the person, assistance,
support, personal and social promotion and visits). These administrative regulations must
implement the provisions contained in the administrative order which constituted the centre,
and the directive of the Ministry of Interior. The conditions of detention are also set in the
conventions (which are not published) signed with the companies in charge of the centre’s
management. For this reason, the fulfilment of the detainees’ fundamental rights varies in the
different detention facilities across the Italian territory, which constitutes a violation of the
250
This disposition was already provided by the law Turco Napolitano, No 40/1998, and it is now provided by
articles 14 (2) and 2 (6) TU:‘lo straniero è trattenuto nel centro con modalità tali da assicurare la necessaria
assistenza ed il pieno rispetto della sua dignità’.
251
Regolamento penitenziario (Penitentiary regulation) L. No 354 of 26 July 1975.
252
Attachments to the standard agreements.
96
principle of equality. For example, in some detention facilities the migrants are allowed to
keep their mobile phones with them while in others this is prohibited. In some CIEs migrants
are provided with a bed and in others they sleep on a materass on the floor. The special
rapporteur of for the Human Rights Commission François Crépeau documented that in the
CIE of Milo (in Trapani) and that of Ponte Galeria (in Roma) the living conditions were poor.
In one of the centres the detainees were allowed to have paper and pencil, in the other this
was not possible. In the CIE of Bari Palese (in Bari) the authorities cooperate with the
detainees, they try to personalize the detainees’ path in the centre and as a result the
athmosphere is appreciably better.
In the centres were the separation between different areas (cantees, recreative areas) is strictly
enforced, sometimes with internal enclosures, and in order to access the recreational areas the
detainees must be accompanied and stay under the supervision of the public security staff.
This rule constitute a severe limitation for the detainee’s access to socialization and common
activities. In turn this determine a situation of inactivity and passivity and increase the
tension. The athmosphere of tension in turn causes further restrictions within the centre,
determining a vicious circuit. In the facilities where the detainees are free to move within the
centre and socialization is fostered and the detainee can talk to specialized staff the
atmosphere is significantly nicer, incidence of riots, violence and self-inflicted harm are
importantly reduced253.
The detention conditions are not subject to judicial control.
Recreational activities as well as the visits from relatives are in the majority of the centres
below standards, and the facilities are overcrowded. For example, in the CIE Ponte Galeria in
Rome there is a severe lack of recreational activities the only possible activity for men is play
football in the afternoon after 14.00. The difference of background, age, needs, of the person
detained coupled with the uncertain lenght of stay in the centre make it difficult to organize
recreational activities254. Moreover, the co-habitation of persons with different legal and
personal circumstances, including ex-prisoners, penalizes the detainees who were reached by
an expulsion order after they remained on the Italian territory after their residence permit
expired, or weak and vulnerable persons who are detained, because they live in an
athmosphere of costant tension and potential intimidation within the centres255.
In a letter to the Italian authorities IOM recommends256 among other things: a) The
promotion of a code which can regulate fundamental aspects of the life of migrants within the
253
Available at: http://www.interno.gov.it/mininterno/export/sites/default/it/assets/files/1/2007131181826.pdf p.
17, accessed 24 April 2013.
254
See the report by Medici Senza Frontiere released in 2010.
255
Available at: http://www.interno.gov.it/mininterno/export/sites/default/it/assets/files/1/2007131181826.pdf p.
16, accessed 24 April 2013.
256
Available at: http://www.cirdi.org/documenti-internazionali/oim-rivedere-il-sistema-dei-cie-in-italia/
accessed 24 April 2013.
97
CIEs, like visits, legal assistance and the possibility to communicate with the outstide.
b) to reduce the use of informal detention places (camps, gyms, etc.) where the migrants are
detained for several days whern they disembark on the Italian territory.
Independent NGOs, and journalist enquiries denounce however that the treatment in the CIE
is comparable to the condition of prisoners. In 2007, the conclusions of the Ministerial
Commission De Mistura investigating on the detention in the former CPTs raised strong
criticisms and pointed out the main problems concerning immigration detention in Italy. In
2012 the report of the parliamentary commission on detention severely denounced the
inadequacies and violations of the amministrative detention system257.
_3._Access to information, translation and interpretation service
The Commissione the Mistura denounced that scarce information were offered especially to
women on trafficking, asylum law and on the legal procedures to obtain a regular residence
permit258.
Services of legal information, translation and interptretation are offered by the company who
is in charge of the CIE’s management.
The inadequacy of information, transaltion and interpretation services results in the detainees’
marginalization and isolation. They are in a disadvantaged position and risk to misunderstand
the centre’s rules and the law. There is the need to create and update easily readable
guidelines, as straightforward as possible, using a vocabulary of common use, translated in
the language of the person concerned. These guides should contain information on the law,
the proceedings, the rules of the facility where the migrant is detained, on their current
situation, as well as practical advice on the appropriate things to do in a given place (prison,
hearing, etc…) and on the behaviour to have and to expect in prison and in detention.
The detainees complain about the uncertainty and lack of information about their treatment in
the CIE, about their future and the further steps of their proceedings. This precarious
condition causes tension in the detention centres, and often causes incidents. This has been
documented by the visits to the CIE of the national campaign called “Lasciatecientrare”, from
July 2011 to April 2012. The association denounced that riots and hunger-strikes occur in the
centre the rage of the detainees.
_4_ Access to lawyers, telephone, and to relatives
Detainees have the right to establish timely contact with legal representatives, family
members and competent consular authorities (Article 16 (2) Returns Directive).
257
Available at: http://www.ristretti.it/commenti/2012/marzo/pdf1/rapporto_comm_diritti_umani.pdf
accessed 24 April 2013.
258
Available at: http://www.interno.gov.it/mininterno/export/sites/default/it/assets/files/1/2007131181826.pdf p.
20, accessed 24 April 2013.
98
Article 14 (2) TU states that in any case the freedom of correspondence must be secured for
the detainee, including communication by telephone. In some centres this right is guaranteed
in practice by giving a prepaid telephone card to the detainees every week. Moreover, the law
guarantees to the detainees the freedom to interact with other people within the centre and the
possibility to speak to visitors from outside the centre. In particular, they must be guaranteed
the right to speak and to receive visits from their defence lawyer and ministry of cult. The
enjoy all the fundamental rights of the person, however the absolute prohibition for the
person to leave the centre must be respected259.
Italian law allows access to CIE and CARA to lawyers, UNHCR representatives and
members of associations with consolidated experience in assisting refugees, with the
authorization of the Ministry of interior260.
The right to receive visits from defence lawyer, relatives, ministries of cult, association
representatives, should be regulated so that it is effectively enjoyed by the detainees,
providing a large dayly time for visits, without requiring too many formalities for the
communication of the request to access the centre for a visit. Moreover, the visit should not
be subject to control by the authorities because this violates the right to privacy and defence
rights.
_5_Access to healthcare: medical services
The rigt to healthcare is enshrined in the Italian Constitution (Article 32), which guarantees
the core of this right as an inviolable aspect of human dignity. According to the Corte
costituzionale, the protection of this right imposes to avoid creating situations that can
compromise the minimum enjoyment of this right. (Corte Costituzionale, judgment No
252/2001).
While any public officer is obliged by law to report (denunciare) every illegal migrant to the
authorities (reato ex art 10 bis TUI) when the public officer has come to know of the illegal
presence of this person for reasons connected to the service, there is an exception for doctors
and other personale medico (art. 35 (5) TUI as amended by l. 94/09) to protect the right to
health of the migrant. Therefore the doctor who comes to know of the illegal presence of a
person on the Italian territory is exempted from the obligation to report this fact to the
authorities.
The detention centres are equipped to offer first aid to the detainees. Health care is supplied
within the detention centres where there is an ambulatory. Health care services include a first
259
The text of the law in Italian: “la libertà di colloquio all’interno del centro e con visitatori provenienti
dall’esterno, in particolare con il difensore che assiste lo straniero, e con i ministri di culto, la libertà di
corrispondenza, anche telefonica, ed i diritti fondamentali della persona, fermo restando l’assoluto divieto per lo
straniero di allontanarsi dal centro”. Article 21 D.p.r. 31 August 199/394.
260
Article 21 (3) D.lgs. 25/2008.
99
health check at the entrance and the supply of ordinary medicines. When the health
conditions of the detainee are serious it is possible to transfer the person to a hospital.
One of the criticism raised on the issue is that the National Health Service is not responsible
for the health care service within the centres and the public health services are not in charge
of verifying the standards of the health services provided within the centres. There are no
common guidelines setting the standards for health care provisions in the centres. Each
detention centre offers this services following the directions of the prefetto, who does not
possess specific medical and psicological knowledge261.
The lack of activities for the detainees generates depression in the detainees and they are
often given psychopharmacological drugs.
The Human Right Commissioner of the Council of Europe reported that victims of trafficking
could potentially be detained in a CIE. On the basis of the information of the CIE’s staff, the
majority of people in detention is given psychopharmacological drugs to calm anxiety and
psychological disturbs262. The NGO LasciateCIEntrare visited the CIE in Bari on 17
December 2012. In the CIE there were 108 detainees. On the basis of the detainees’
declarations, the staff denounces that detainee were given psychopharmacological drugs and
sedatives. The doctor in the centre instead declared that only 1% of the detainees were given
drugs. On the basis of the detainees’ declaration LasciateCIEntrare denounces that they were
not allowed to any recreational activity or time in open air; that some of the detainees seemed
to exhibit the symptoms of scabies. The association calls for the introduction of the crime of
torture in the Italian legal system263.
_6_ Centers’ regulation and management
The CIE are managed by the prefetture, through agreements stipulated with private
companies, associations, cooperatives following public auctions. The agreements guarantee
the following services: 1) personal care and assistance, including food, accommodation,
satisfaction of personal needs; medical care and assistance; psychological assistance;
linguistic and cultural mediation; 2) refectory; 3) cleaning services; 4) mainenance of the
building and the building’s systems (water, electricity, sanitation, etc…) functioning and safe.
Public force authorities can only enter the areas where the detainees live upon request of the
managing company and in exceptional cases when there is an emergency.
261
Available at: http://www.immigrazioneoggi.it/daily_news/notizia.php?id=001397 accessed 24 April 2013.
262 Available at:
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=214246
0&SecMode=1&DocId=1925946&Usage=2 at p. 170, accessed 24 April 2013.
263 Available at: http://lasciatecientrare.it/index.php/diritti-umani-alienati-in-unitalia-da-nobel-per-la-paceispezione-al-cie-di-bari-2/
100
Minimum standards for tenders of the management facilities are set by the Italian
government264, however, concerns have been raised regarding the uneven application of these
standards in practice.
The UNHCR recommended in 2012 that all asylum seekers are received in conditions that
meet national and international standards (including Council of Europe: adequate access to
legal aid and psycological assistance); to overcome the fragmentation within the Italian
reception system due to the differences between different types of centres and the
shortcomings in the implementation and monitoring of common standards, as well as the
effects of the emergency framework and the variability among the regions, overcoming the
difference of standards in reception conditions across the Italian territory. The reception
system should be subject to clear standards and independent monitoring265.
_6.1._ Independent monitoring and inspection and absence of complaint procedures.
The lack of independent monitoring and inspection of the centers by an external authority
turns out to be one of the main issues for the safeguard of the rights for migrants kept in a
reception/detention centers. Also, people in detention/reception cannot start a formal and
effective complaint procedure.
‘The Guiding Principles on Business and Human Rights (…) provide that states do not
relinquish their international human rights law obligations when they privatize the delivery of
services that may impact upon the enjoyment of human rights, and the Human Rights
Committee has stated in its communication No. 1020/2001 that ‘the contracting out to the
264
The Minisrty of Interior issued a general directive on detention centres (Direttiva generale in
materia di Centri di Permanenza Temporanea e di Assistenza), which included a ‘charter of
rights and duties’ for the detainees. In 2002 ministerial guidelines were issued to harmonize the
conditions of the detention centres across Italy. The centre’s management has been regulated by
ordinances issued by the Civil Protection, following the declaration of the status of
emergency, renewed until 31.12.2006. The company in charge of the centre’s management is
chosen by the prefetto. Then a convention is signed with the chosen company. The
conventins vary according to the status of the facilities, that can be public of private property.
Usually the duration of these convention is two years, and the company must communicate to
the Prefettura, the office of the prefetto the name of the staff working in the detention centre
The services which the management company must provide are also specified in the
convention.
265
See the Recommendations made by UNHCR in July 2012 on important aspects of refugee protection
in Italy.
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private commercial sector of core State activities which involve the use of force and the
detention of persons does not absolve a State party of its obligation under the Covenant’266.
It is essential that the public authorities ensure regular and strict scrutiny of the running of
these centres and that there should be specifications detailing their obligations (including on
certain basic issues such as the number and thickness of blankets) in line with international
standards, particularly those set by UNHCR267.
Violence within the centres:
Episodes of phisical violence upon the detainees have been denounced by journalists
enquiries268, NGOs, and during judicial proceedings. However, detainees are reluctant to
denounce the abuses, as they are subject to the thread of being accompanied to the borders
immediately.
The crime of torture is not punished by law in Italy. A law proposal for the criminalization of
this crime is now in the process of being approved by the Italian parliament.
In 2012 Italy ratified the Optional protocol to the UN Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. The Protocol provides the
establishment of an independent authority with monitoring functions on detention centres,
including CIE. It provides for inspections by the UN committee. The purpose of the protocol
is preventing torture to occur. In the Italian system torture is not punished as a crime. The law
introducing the crime of torture was approved unanimously by the Commissione Giustizia del
Senato in September 2012, but the law has yet to be approved by the Parliament.
_7_ Selected case law
In the opinion of the European Court of Human Rights, detention is arbitrary where there is
an element of bad faith on the part of the authorities (case Conka v. Belgium, 51564/99, 5
February 2002).
In the case S.D. v Greece decided by the European Court of Human Rights on 11 June 2011,
the Court held that there was a violation of article 3 of the Convention for the conditions in
which the applicant had been detained. The applicant, a Turkish national escaping from his
country of origin, was detained for two months in the Soufli holding centre in Greece where
266
Available
at
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC20-24_en.pdf, at para 7.2, p. 9, accessed 24 April 2013.
267
Available at: http://assembly.coe.int/CommitteeDocs/2011/amahlarg03_REV2_2011.pdf at p. 37, accessed
24 April 2013.
268 A journalist, Fabio Gatti, denounced the episodes of violence in the CIE of Lampedusa. He pretended to be
a migrant and was detained in the CIE.
102
in the opinion of the Court detention conditions were acceptable. Then he was detained in the
Petrou Rali holding centre in Greece in unacceptable conditions. The Court pointed out that it
did not matter for how long a person was victim of inhuman and degrading treatment: the
actual duration of the treatment was immaterial.
One case recently decided by the Tribunal of Milan [Tribunale di Milano, sezione penale
Case No 8408/ of 18 July 2012]269 on a fire set by the detaines in the CIE of Milan to protest
after a control by public security agents. The migrants detained in the centre set their
materassses on fire. The Court acquitted the suspects for the crime of ‘devastazione’
(devastation) but sentenced them for the crime of ‘danneggiamento’ (malicious mischief) due
to the small dimension of the event and to the fact that the fire did not constitute a ‘real
danger for the public order’.
Another recent case decided by the Tribunal of Crotone [Tribubale di Crotone, sezione
penale, No 1410/2012 of 12 December 2012]270 migrants detained in the CIE of Isola Capo
Rizzuto revolted against the agents in charge of surveillance in the centre claiming freedom.
The migrants claimbed on the roof and did not descend for several days, carrying out a
hunger strike. From the roof they threw ojbects towards the agents and where charged of the
crimes of ‘danneggiamento’ (malicious mischief) and ‘resistenza a pubblico ufficiale’
(resistence to a public official). The Tribunal acquitted the suspects holding that they acted
for legitimate defence. The judges held that the detention decrees for the accused in the
proceedings were unlawful because the authorities did not justify why detention was
necessary and no other measures less restrictive of personal freedom could be adopted in
those cases. This constituted a violation of European law and in particular of the provision of
the Returns Directive prescribing that the measures adopted by the administrative authorities
must be proportionate to their objectives and that detention should be decided only when
measures less restrictive of personal freedom cannot be adopted. The detetntion decrees for
the migrants accused in the proceedings did not provide any justification on the necessity and
proportionality of administrative detention, thus they were unlawful.
In the judgment, the Tribunal described in details the conditions of detention in the CIE of
Isola Capo Rizzuto and held that these violated human dignity, according to the parameters
set by the European Court of Human Rights concerning article 3 of the European Convention
of Human Rights. Following a detailed analysis of each of the requisites of legitimate
defence, the Tribunal held that the migrants acted against an unjust offence, that the danger
was real and present, that the risk was not avoidable, that the reaction of the migrants was
269
Available at:
http://www.penalecontemporaneo.it/upload/1357548512trib%20mi.pdf
accessed 24 April 2013.
270
Available at: http://www.penalecontemporaneo.it/upload/1357548559crotone.pdf accessed
24 April 2013.
103
proportionate to end the unjust offence against them, and necessary. The Tribunal held that
the detention decrees for the accused were unlawful also in consideration of the fact that the
judicial control on the detention decrees was not effective due to the lack of interpretation
services in the proceedings and because the defence lawyer were appointed just before the
hearing and were not put in the condition to know the details of the case and prepare their
defence. The Tribunal finally held that passive form of protest such as hunger strikes were
not a suitable alternative as they are decision of conscience which cannot be coherced or
requested.
In consideration of the above reasons the Tribunal acquitted the accused and order the
immediate release of those who where in custody.
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