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Duration of detention for identification purposes
According to the SOPs applying at hotspots, from the moment of entry, the period of stay in the facility should be as short as possible, in accordance with the national legal framework.
Article 6(3-bis) of the Reception Decree introduced by Decree Law 113/2018 has introduced the possibility to detain asylum seekers in hotspots for the purpose of determining their identity or nationality. After the amendment introduced by Decree law 130/2020 as converted by L. 173/2020, the law states that this should happen in the shortest possible time and for a period not exceeding 30 days and, if identification has not been possible within that time frame, they could be sent to CPR for detention up to 90 days plus an additional 30 days when the migrant belongs to a country with which Italy has signed repatriation agreements.[1] The provision of a detention period up to 30 days and extendable to up to 90 plus 30 days in the CPR seems incompatible with the principle laid down in Article 9 of the recast Reception Conditions Directive according to which an applicant shall be detained only for as short a period as possible. For asylum seekers, this cannot be justified as – given the impossibility of contacting the authorities of the country of origin – it could only coincide with the fotosegnalamento, which certainly cannot take more than a few days.[2]
The reform, introduced by L. 132/2018, confirmed by DL 130/2020 and converted by L 173/2020, has given a legal basis to a practice – that of de facto detention in hotspots – already being implemented. However, as underlined by ASGI the detention still takes place in hotspots without any clear legal basis, in the absence of a written act adopted by the competent authority and validated by a judge, in the absence of a maximum detention period, without proper information provided, in a manner inconsistent with the need to protect the individuals against arbitrariness.[3]
The Guarantor, in the parliamentary debate relating to the conversion into law of the D.L. 130/2020, highlighted how “the non-recognition of the possibility of complaints in hotspots” does not satisfy the requirements laid down in the Khlaifia case, creating an unequal treatment between those held in the CPRs, who will have access to a whole series of guarantees and be able to exercise a whole series of rights, including the possibility to present requests and complaints, and whoever is detained in a hotspot, who will not be able to access any of the aforementioned prerogatives. The Guarantor raised several critical issues on the detention of asylum seekers in hotspots for identification purposes: “the lack of taxability of the conditions of application, the lack of regulation of the methods of detention in the premises identified in the hotspots/governmental reception centres, the inadequacy of the hotspots for detention of 30 days, the lack of proportionality of the maximum terms of detention with respect to other institutions that the law provides for similar purposes”.[4] The Guarantor had previously defined the condition of applicants detained for identification in as a “limbo of legal protection”. As a result of detention being practised in a grey legal area or on a de facto basis, applicants who face prison-like conditions do not even receive the same guarantees and legal provisions as prison detainees.[5]
The fact that these places are currently also being used for quarantine, means that detention may be prolonged indefinitely, if the period of precautionary isolation actually starts again every time new people arrive in the quarantine facility.[6]
As of 2021, appropriate places for detention for identification purposes have not yet been identified. Thus, the situation remained almost unchanged as regards de facto detention, which, in the absence of any control of legitimacy by the judicial authority, continued in the hotspots during the identification phase and, in the case of Lampedusa hotspot, even after that phase until the person is finally transferred to another destination depending on his/her legal status.[7]
As already mentioned, no data on persons identified in hotspots is available for 2022. In 2021, out of 5,147 persons detained in CPRs 862 (17%) were released because they were not identified in the timeframe foreseen by the law. In the first four months of 2022, out of 1,420 persons detained in CPRs, 264 (19%) were released because they were not identified in the timeframe foreseen by the law.
The hotspot approach is used beyond the actual hotspot centres. In October 2020, ASGI reported that the first line reception facility of Monastir, in Sardinia, was being used as a de facto detention facility.[8] In 2021, ASGI reported many criticalities at the “new border” of Pantelleria, where landed migrants are also channelled in hotspot-like procedures.[9] The new inspection conducted by ASGI in May 2022 confirmed the critical issues that emerged the previous year, which include unlawful detention practices, obstacles to access to the right of defence, violation of freedom of phone correspondence – in light of the seizure of phones -, inadequate detention conditions and promiscuity.[10]
Duration of asylum and pre-removal detention
The maximum duration of detention of asylum seekers is 12 months.[11] The duration of pre-removal detention decreased from 180 to 90 days, plus 30 days in cases of repatriation agreements with the countries of origin.[12] According to ASGI, the difference between the maximum duration of ordinary detention for third-country nationals (4 months) and the maximum duration of detention of asylum seekers (12 months) appears as an unreasonable violation of the principle of equality provided for by Article 3 of the Italian Constitution, resulting in a discriminatory treatment of the latter category. Moreover, it is not clear if the 30-day duration of detention for identification reasons may or may not be counted in these maximum detention periods.
When detention is already taking place at the time of the making of the application, the terms provided by Article 14(5) TUI are suspended and the Questore shall transmit the relevant files to the competent judicial authority to validate the detention for a maximum period of 60 days, in order to allow the completion of procedure related to the examination of the asylum application.[13] In September 2021, the Specialised Section of the Court of Rome issued a decision clarifying that the validation request by the Questura to the Court is to be presented within 48 hours from the moment in which the applicant made (i.e., making stage) his application for international protection.[14] The same conclusions were reached by the Specialised Section of the Courts of Trieste[15] and Milan[16] in January 2023. On this point, the Court of Milan, in December 2022, had already raised a question of constitutional legitimacy, considering “relevant and not manifestly unfounded the question of constitutional legitimacy of art. 6 c. 5 d.lgs. 142/2015, for being in contrast with art. 13 Constitution, in the part in which it refers to art. 14 d.lgs. 286/1998, implying that the term of forty-eight hours to request the validation of the detention ordered by the Questore shall elapse, even in the case of detention ordered pursuant to art. 6 c. 3 d. lgs. 142/2015, from the adoption of the measure by which the Questore orders the detention and not from the moment in which the detained person is considered to have acquired the quality of “applicant for international protection international” pursuant to Art. 2 let. a) Legislative Decree 142/2015″.[17] The merits of the issue will be analysed and decided by the Constitutional Court in coming months.
However, the detention or the extension of the detention shall not last longer than the time necessary for the examination of the asylum application under the Accelerated Procedure,[18] unless additional detention grounds exist pursuant to Article 14 TUI. Any delays in the completion of the administrative procedures required for the examination of the asylum application, if not caused by the applicant, do not constitute a valid ground for the extension of the detention order.[19]
According to the Reception Decree, the applicant detained in CPR or for identification reasons in hotspots or first governmental reception centres, who appeals against the rejection decision issued by the Territorial Commission, remains in the detention facility until the adoption of the decision on the suspension of the order by the judge.[20] The detained applicant also remains in detention as long as he or she is authorised to remain on the territory as a consequence of the lodged appeal.[21] The way the law was worded before did not make it clear whether, when the suspensive request was upheld, asylum seekers could leave the CPR, and in practice they did not.
In this respect the Questore shall request the extension of the ongoing detention for additional periods of no longer than 60 days, which can be extended by the judicial authority from time to time, until the above conditions persist. In any case, the maximum detention period cannot last more than 12 months.[22]
In 2020, in some cases Civil Courts have released asylum seekers detained in CPR. The Courts observed that time limits of the accelerated procedure as regulated by art. 28bis of the Procedures Decree were exceeded, without any justification. In two cases asylum seekers had been detained in CPR for more than two months without the audition having been set.[23] The Court of Cassation also stressed the principle according to which an asylum seeker cannot be detained over the times scheduled under the accelerated procedure, unless other reasons for detention arise[24] (see also Judicial Review) In December 2021, the Specialised Section of the Court of Lecce has clarified that the detention of the applicant for international protection cannot be extended once its terms – to be calculated from the making of the application – have expired.[25] Other Courts have not validated the prorogation of detention because the time limits for the accelerated procedure had not been respected by the competent Territorial Commission or Questura.[26]
The average duration of detention in CPR is not available. As reported above, in 2021, 17% of persons detained in CPRs were released because they were not identified in the timeframe foreseen by the law, while in the first four months of 2022, they were 264 out of 1,420 (19%).
The average length of stay in hotspots in 2021 was of 7 days in Lampedusa, 10 days in Pozzallo and 20 days in Taranto. The Messina hotspot was not operating in 2021. As of 30 April 2022, the duration of detention in Lampedusa and Pozzallo was of 5 days, while no data was available about Taranto. Messina was still not operating in 2022.[27]
[1] Article 6(3-bis) Reception Decree, inserted by Article 3 Decree Law 113/2018 and L 132/2018 and amended by Article 3 (2, b) DL 130/2020 and L 173/2020.
[2] See Guido Savio, La nuova disciplina del trattenimento per l’esecuzione dell’espulsione, in Immigrazione, protezione internazionale e misure penali, commento al d.l. 130/2020 convertito in L. 173/2020, 2021.
[3] ASGI and CILD, communication to the Committee of Ministers of the Council of Europe as part of the supervision procedure on the implementation of the Khlaifia ruling of the ECHR, January 2021, available in English at: https://bit.ly/3bu0haa.
[4] Guarantor for the rights of detained persons, Parere sul decreto-legge 21 ottobre 2020, n. 130, available at: https://bit.ly/33IUnO8.
[5] The Left, LOCKED UP AND EXCLUDED Informal and illegal detention in Spain, Greece, Italy and Germany, December 2020, available at: https://bit.ly/37q36JY.
[6] Guarantor for the rights of detained persons, Report to Parliament, March 2020, available at: https://bit.ly/3okpJnx, para. 22, pp. 105-107.
[7] ASGI and CILD, communication to the Committee of Ministers of the Council of Europe as part of the supervision procedure on the implementation of the Khlaifia ruling of the ECHR available in English at: https://bit.ly/33FsXZd, January 2021; see also Il trattenimento dei richiedenti asilo negli hotspot tra previsioni normative e detenzione arbitraria, 30 September 2019, available in Italian at: https://cutt.ly/4yO8GLX.
[8] ASGI, Report sopralluogo giuridico: la Sardegna come luogo di frontiera e di transito, December 2020, available at: https://bit.ly/2SPky3r.
[9] ASGI; La frontiera di Pantelleria: una sospensione del diritto Report del sopralluogo giuridico di ASGI, June 2021, available at: https://bit.ly/39ovdKB.
[10] ASGI, La frontiera di Pantelleria: una sospensione del diritto Report del sopralluogo giuridico di ASGI, August 2022, available at: https://rb.gy/9ndftw.
[11] Article 6(8) Reception Decree.
[12] Article 14(5) TUI, as amended by Decree Law 130/2020 and L. 173/2020.
[13] Article 6(5) Reception Decree.
[14] ASGI, Il Tribunale di Roma: i termini per la convalida del trattenimento decorrono dalla manifestazione di volontà di chiedere asilo in CPR, available in Italian at: https://bit.ly/3qa9iwo.
[15] Tribunale di Trieste, proceeding 81/2023, decision 18 January 2023.
[16] Tribunale di Milano, proceeding 23/2023, decision 18 January 2023.
[17] Tribunale di Milano, proceeding 42304/2022, decision 11 December 2022.
[18] Pursuant to Article 28-bis(1) and (3) Procedure Decree.
[19] Article 6(6) Reception Decree.
[20] Article 35-bis(4) Procedure Decree.
[21] Article 6(7) Reception Decree, as amended by Article 8 Decree Law 13/2017 and L 46/2017.
[22] Article 6(8) Reception Decree.
[23] Civil Court of Turin, decision 5114/2019, 6 August 2019, procedure 19920/2019, available in Italian at: https://cutt.ly/6yO8BKm; Civil Court of Trieste, decision 30/2020, 13 January 2020, available in Italian at: https://cutt.ly/IyO8NjY.
[24] Court of Cassation, decision no. 2458/2021 published on 2 February 2021.
[25] ASGI, Trattenimento nel CPR, impossibile prorogare un termine già scaduto, January 2022, available in Italian at: https://bit.ly/3CUIaGL.
[26] Tribunale di Trieste, proceeding 893/2022, decision 5 april 2022; Tribunale di Torino, proceeding 15476/2022, decision 23 August 2022; Tribunale di Torino, proceeding 22329/2022, decision 29 November 2022; Tribunale di Torino, proceeding 23638/2022, decision 14 December 2022.
[27] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2022, available at: https://rb.gy/alzvet.