Author
Asylum seekers should not be sent to CPR before they have had the possibility to apply for asylum, due to lack of proper information on the asylum procedure or because they are denied access to the procedure (see Registration). This however happens in practice. In this case, they are subject to the procedure for irregular migrants provided by the TUI until they are able to apply for asylum. In 2020, in several cases, the Civil Court of Trieste did not validate the detention of Tunisians asylum seekers who had already submitted an asylum application from the quarantine ship and whose application therefore could not be considered instrumental.[1] Similar decisions were adopted by the Civil Court of Torino in 2022, that acknowledged the non-instrumentality of the asylum claim, arguing, inter alia, that the information contained in the ‘foglio notizie’ signed by the asylum seeker at the time of disembarkation is not sufficient to justify an evaluation of unfoundedness of the application for international protection. In the specific case, the “foglio notizie” had been completed only nine days after disembarkation.[2]
On this point, a recent judgement of the Court of Cassation established the insufficiency and irrelevance of what is contained in the “foglio notizie”, in the absence of a complete and effective information on international protection to all migrants brought to the hotspots, and not only to those who express the will to seek international protection. Moreover, the style clause usually inserted in the rejection decrees, according to which the foreigner “has been fully informed in accordance with Directive 2008/115/EC” is insufficient, as it is a mere stereotyped formula, lacking appropriate normative references and actual content.[3]
The subsequent pronouncement of the Court of Cassation, in addition to reiterating what had already been expressed by the previous judgement, specified that the obligation of adequate information ‘subsists even in the case where the foreigner has not expressed the need to request international protection, given that silence or a possible declaration incompatible with the will to request it, which must in any case be clearly expressed and not by ambiguous formulas, cannot assume importance if it does not appear that the person has been fully informed beforehand’.[4]
The detention decision must be validated within 48 hours by the competent Magistrates’ Court (giudice di pace). After the initial period of detention of 90 days, the judge, upon the request by the Chief of the Questura, may prolong the detention in CPR for an additional 90 days.[5] After this first extension, the Questore may request one or more extensions of three months to a lower civil court, where it is decided by a Magistrates’ Court, up to a further period of 12 months in cases where, despite all reasonable efforts having been made, the removal operation has lasted longer because of the detainee’s lack of cooperation or delays in obtaining the necessary documentation from third countries. It follows that, following the recent amendments, the detention of an irregular migrant can last up to 18 months. The assessment concerning the duration of such an extension lies with the magistrate who decides on a case-by-case basis. The third-country national has the right to challenge the detention. The TUI, in fact, provides the right to appeal a detention order or an order extending detention.[6]
Decree Law 113/2018, implemented by L 132/2018, has provided for the possibility of detention in premises other than CPR. According to the amended Article 13(5-bis) TUI, in case of unavailability of places in the CPR located in the district of the competent Court, the Magistrate, upon request by the Questura, and fixing by decree the hearing to validate the detention, may authorise the temporary stay of the foreigner in different and suitable structures in the availability of the Public Security Authority until the conclusion of the validation procedure. In case the unavailability of places in CPR remain even after the validation hearing, the Magistrate can authorise the stay in suitable places near the Border Police Office concerned until the effective removal and in any case not exceeding 48 hours following the validation hearing.[7]
If, after being sent to a CPR or other places according to Article 13(5-bis) TUI, third-country nationals apply for asylum, they will be subject to detention pursuant to Article 6 of the Reception Decree. In these cases, the competence to the judicial review on the validation or extension of detention is up to the Specialised Section of the competent Civil Court, having regard to the place where the centre is located.[8]
The Questore’s order related to the detention or the extension thereof shall be issued in writing, accompanied by an explanatory statement, and shall indicate that the applicant may submit to the court section responsible for validating the order, personally or with the aid of a lawyer, statements of defence. Such order shall be communicated to the applicant in the first language that the applicant has indicated or in a language that the applicant can reasonably understand.[9]
According to the law, where possible, the applicant takes part in the hearing on the validation of detention by videoconference, allowing the lawyer to be present at the place where the applicant is located. The presence of a police officer should ensure that there are no impediments or limitations on the exercise of the asylum seeker’s rights.[10] The lawyer is thus forced to choose between being present next to the client or next to the judge at the validation hearing.[11]
The Questore shall transmit the relevant files to the competent judicial authority to validate the detention for a maximum period of 60 days, to allow the completion of procedure related to the examination of the asylum application.[12] However, the detention or the prolongation of detention shall not last beyond the time necessary for the examination of the asylum application under accelerated procedure,[13] unless additional detention grounds are present 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, should not constitute valid ground for the extension of the detention.[14]
A long-standing practice of holding detention validation/extension hearings in CPRs exists,[15] against which the Superior Council of the Judiciary had already intervened with decisions in 2010, clarifying that these hearings should take place in Court, except for cases of absolute impossibility[16] – continues.[17]
Another critical issue is the absence of concerned persons in hearings, since their attendance is not always guaranteed;[18] Furthermore, the Supreme Court of Cassation has clarified in a recent sentence that the absence of the third-country national at the hearing for the validation or extension of his/her detention, it is not an absolute ground for invalidity, but merely a nullity which must be promptly objected to by the party. The Court highlights how the procedure outlined by article 14 of the Consolidated Law on Immigration is a civil proceeding at nature and therefore does not follow the rules of criminal trials; thus, the presence of the party at the hearing is not a public interest but merely an interest of the party.[19] The party’s absence at the hearing, led to the Supreme Court upholding of the appeal in its decision of February 2023.[20]
Other critical aspects of the judicial review of detention in the context of the validation and extension hearings regard the appointment of lawyers by the detainees and the timing of communications to the lawyers, which the latter argued amounted to obstacles to the right of defence, as well as the inadequate duration of the hearings, which usually last between 5 and 10 minutes.
Finally, it has been reported that validation and extension decree are often not well motivated, and rather “standardised” grounds for validation and extension are used. In 2021, the Court of Cassation annulled a detention extension order pointing out that the judicial authority had not adequately explained the motivation behind its decision;[21] in another ruling, the Supreme Court dismissed the decree of a Justice of the Peace who prolonged for the fourth time the detention of a foreigner in a CPR, pointing out the total absence of adequate reasons for such an order, also considering that the judicial authority, instead of adequately motivating the decision, had simply proceeded to tick specific boxes on a pre-printed form.[22] In a previous ruling of December 2020, the Court of Cassation had already reiterated that detention must be considered exceptional and considered the extension in object illegitimate because it was not adequately motivated with respect to the corresponding functionality for repatriation.[23] Various recent decisions of the Supreme Court are in line with earlier ones.[24]
The Court of Cassation affirmed an important principle regarding the need not to limit personal freedom for asylum seekers beyond the time limits established for examining the application under the accelerated procedure, unless there are other reasons for detention. In the case examined by the Court, the applicant had submitted an application, while held in the CPR that was deemed as motivated by the sole purpose of preventing or avoiding a removal order. After around two months, the Civil Court of Turin extended the detention of the applicant, even though the Territorial Commission had not yet summoned him for a personal interview. Therefore, the time taken to examine the application had exceeded the limits set out in Article 28 bis of the Procedure Decree and the provisions of Article 6 of the Reception Decree were violated, as according to such article any delays in the procedure not attributable to the applicant do not justify the extension of the detention.[25]
By extending the scope of this ruling to the judicial phase, the Civil Court of Trieste rejected the extension of detention in a case in which the suspension of the refusal issued by the Territorial Commission had been requested with the appeal for more than two and a half months. The Court observed that the Court of Trieste itself had omitted to rule about the suspension within 5 days from the request, as required under accelerated procedure by the Procedure Decree.[26]
The practice of the “double information paper” – for which a decision of the EU court is expected in the coming months to assess impact on access to the procedure – has already been addressed (see Different treatment of specific nationalities in the procedure), affects also the review of detention. For instance, in 2019 the Civil Court of Palermo assessed the legitimacy of the detention of some foreign citizens transferred from the Lampedusa hotspot to the Trapani CPR. During their stay in hotspot these persons had already expressed their will to seek asylum but before their transfer they were asked to sign an information sheet “scheda informativa” declaring to be no longer interested in seeking international protection. Transferred to the CPR of Trapani these persons again expressed their will to seek asylum before the Magistrate (Giudice di Pace) during the detention validation hearing. Their detention was validated as the Magistrates based their decision on the statements contained in the information sheet (scheda informativa). Only after about 20 days, they were able to lodge applications for international protection at the competent Questura. Deciding on the validity of their detention order, in two out of three cases the Civil Court of Palermo did not validate the detention, statement contained in the scheda informativa by considering it was not sufficient to fulfil the duty of information on the right of asylum pursuant to art. 10-ter TUI and in any case considering it was unreliable for the way it was hired.[27] In 2020, in two relevant cases the Court of Cassation confirmed the inadequacy of “foglio notizie” to determine the legal status of migrants. The principle has been recently confirmed by the Civil Court of Cassation in decisions n. 32070/2023, 20 November 2023 and n. 5797/2024, 5 March 2024 (see Information at the border).[28]
[1] i.e. Civil Court of Trieste, decision of 20 November 2020.
[2] Tribunale di Torino, proceeding 21367/2022, decision 17 November 2022; Tribunale di Torino, proceeding 21369/2022, decision 17 November 2022; Tribunale di Torino, proceeding 21371/2022, decision 17 November 2022.
[3] Civil Court of Cassation, decision n. 32070/2023, 20 November 2023; see also ASGI, ‘Cassazione: Chi entra in Italia ha diritto a informativa completa ed effettiva sull’asilo dal primo contatto con polizia’, 22 November 2023, available in Italian at: https://lc.cx/OJ1hgh.
[4] Civil Court of Cassation, decision n.5797/2024, 5 March 2024.
[5] Article 14(5) TUI, as modified by art. 20, Decree Law 124/2023, converted in Law 162/2023.
[6] Article 14(6) TUI.
[7] Article 13(5-bis) TUI, inserted by Article 4 Decree Law 113/2018 and L 132/2018.
[8] Article 3 (1 c), read in conjunction with art. 4 (3) Law decree 13/2017 converted by Law 46/2017 and Article 6 (7) Reception Decree.
[9] Article 6(5) Reception Decree, as amended by L 46/2017. Nevertheless, as reported to ASGI, some Questure, when issuing the detention order, do not provide asylum seekers with copy of such orders nor explanations of the reasons for detention.
[10] Article 6(5) Reception Decree, as amended by L 46/2017.
[11] Senate, 2017 CPR Report, December 2017.
[12] Article 6(5) Reception Decree.
[13] Pursuant to Article 28-bis(1) and (3) Procedure Decree.
[14] Article 6(6) Reception Decree.
[15] It was reported that in Turin already in 2015 only 10% of hearings for the validation/extension of immigration detention were taking place at the Judge’s chambers, as the majority of hearings took place in the immigration detention centre. Fabrizio Mastromartino, Enrica Rigo, Maurizio Veglio, “Lexilium. Osservatorio sulla giurisprudenza in materia di immigrazione del giudice di pace: sintesi Rapporti 2015”, in Diritto, Immigrazione e Cittadinanza, 2017, available in Italian at: https://bit.ly/3u518GP.
[16] Consiglio Superiore della Magistratura (CSM), Delibera del 21 luglio 2010, avente ad oggetto: “Convalida dei provvedimenti di allontanamento dei cittadini comunitari emessi dal Questore ai sensi dell’art. 10 c. 11 e 12 dlvo 30/07 (come modificato dal dlvo 32/08): locali da utilizzare e criteri da adottare per la individuazione di quelle esigenze residuali che giustifichino il ricorso al supporto logistico delle questure per l’organizzazione della suddetta udienza”. Available in Italian at: https://bit.ly/3N0Zui4.
[17] Melting Pot, ‘Aspetti critici delle udienze di convalida e/o proroga del trattenimento presso il Cpr di Palazzo San Gervasio’, November 2021, available in Italian at: https://bit.ly/3wfv2uK.
[18] CILD, Buchi Neri, available in Italian at: https://bit.ly/3u710qg.
[19] Supreme Court of Cassation, I Civil Section, 5520/2021, published in March 2021 and available in Italian at: https://bit.ly/3Jk6dl1.
[20] Supreme Court, I Civil Section, 4961/2023, 16 February 2023.
[21] Supreme Court, I Civil Section, 9440/2021, available in Italian at: https://bit.ly/3CMAciZ.
[22] Supreme Court, III Civil Section, 13172/2021, available in Italian at: https://bit.ly/3CPHkeo.
[23] Court of Cassation, decision of 23 July 2020, published on 9 December 2020, no. 28063.
[24] Supreme Court, VI Civil Section, 32570/2022, 4 November 2022; Supreme Court, VI Civil Section, 504/2023, 11 January 2023; Supreme Court, I Civil Section, 4858/2023, 16 February 2023; Supreme Court, I Civil Section, 4855/2023, 16 February 2023.
[25] Court of Cassation, decision no. 2548/2021, of 11 December 2020, published on 3 February 2021. See also for a note to the decision: https://bit.ly/3oeonus.
[26] Civil Court of Trieste, decision 16 March 2021.
[27] Civil Court of Palermo, decision available in Italian at: https://cutt.ly/myO5LIE.
[28] See ASGI, ‘Cassazione sulle prassi hotspot: il secondo foglio notizie non può limitare l’accesso al diritto di asilo’, 10 September 2020, available at: https://bit.ly/3u8sI5O; see also ASGI, ‘Cassazione: Chi entra in Italia ha diritto a informativa completa ed effettiva sull’asilo dal primo contatto con polizia’, 22 November 2023, available in Italian at: https://lc.cx/OJ1hgh.