Author
Detention of unaccompanied children [1]
The law explicitly provides that unaccompanied children can never be detained.[2] However, there have been cases where unaccompanied children have been placed in CPRs following a wrong age assessment. Minors, both accompanied and unaccompanied, are also de facto detained in hotspots and, in the context of the COVID-19 pandemic, on quarantine vessels.
Hotspots: More than 12,000 minors have entered hotspots in Italy since 2016.[3] 10,491 children entered in hotspots in 2022; 7,341 were unaccompanied and 3,150 accompanied children.[4]
It has been noted how the practice according to which, quoting the National Guarantor, “the foreign citizen is basically precluded from having correct personal data reported on the entry information sheet [foglio notizie]” in hotspots,[5] may easily lead to unlawful deprivation of liberty in detention facilities, and delayed disclosure/age assessment.
During the first 7 months of the pandemic, unaccompanied minors were also subject to fiduciary isolation or quarantine at hotspots. In the case of Lampedusa hotspot, unaccompanied minors were kept in social isolation conditions, accommodated in situations of promiscuity with adults, within often inadequate and overcrowded spaces and deprived of their personal liberty. In these circumstances, access by unaccompanied minors to dedicated and appropriate health and psychosocial support was significantly compromised.[6]
In October 2023, a delegation of the Asylum and Immigration Table visited the Pozzallo hotspot and its Contrada Cifali extension for unaccompanied foreign minors, finding a condition of social isolation and de facto deprivation of liberty of these minors.[7]
The European Court of Human Rights, in its decision of 23 November 2023 rendered in Case No. 47287/17 (A.T. and Others v. Italy),[8] condemned Italy for unlawfully detaining several unaccompanied foreign minors in the Taranto hotspot (Art. 5, paras. 1, 2, and 4 of the European Convention on Human Rights), for having used inhuman and degrading treatment in arranging their reception measures (Art. 3 of the Convention), for not having appointed a guardian nor having provided them with any information on the possibility of challenging this condition in court (Art. 13 of the Convention, in relation to Art. 3). Despite the fact that the judgement refers to events in 2017, the persistent situation in which previous repressive approaches to the detention of unaccompanied foreign minors in hotspots have not been changed requires respect for the rights guaranteed by the Convention.[9]
CPR: There is no official consolidated data on the number of persons detained in CPRs that declared to be minors and are recognised as such via the age assessment procedure. One case has been mentioned in Palazzo San Gervasio.[10] ASGI book on Turin’s CPR reported 1 case in 2021, regarding the same CPR, of a minor subjected to age assessment procedure without the involvement of the Juvenile Court and detained during the age assessment in violation of the “favor minoris” principle. He was released after 95 days of detention based on a medical report that noted “discomfort from reactive anxiety to psycho-somatic symptomatology” and a “reactive anxiety and psychosomatic symptomatology that are expressed in a condition of psycho-emotional vulnerability”.[11] It has also been reported that, as in Lampedusa’s hotspot migrants are not able to have their personal data corrected by authorities, many who have been identified as adults in Lampedusa declare themselves to be minors upon arrival in Trapani’s Milo CPR. Pending the age assessment, these minors are kept for weeks in the CPR (in a special area that does not fully avoid situations of promiscuity between adults and minors).[12]
Borders: Cases of de facto detention of minors in border areas have also been reported. The Guarantor for the rights of detained persons, who visited the border premises of the border police of Trieste and Gorizia in December 2020, reported critical issues related to the procedure for the age assessment of minors, still in “non-application” of the provisions enshrined in Law 47/2017, in the context of readmissions to Slovenia. Even though this procedure should not involve families and vulnerable people, readmissions were also carried out against those who declared themselves to be minors at the border, as reported by the network Tavolo Minori Migranti. This practice has been legitimised by two directives on the age assessment of minors sent by the Public Prosecutor to the attention of the Juvenile Court of Trieste on 31 August and 21 December 2020. Contrary to the guarantees enshrined in Law 47/2017, these guidelines authorise security forces to carry out an age assessment of persons intercepted at the Italy-Slovenia border with a de visu evaluation: police can consider migrants as adults if there are no apparent doubts about the age of consent of the concerned person, regardless of the declaration of minor age and the consequent judicial review required by law. These directives assign a discretionary power to the Public Security authority in identifying the age of migrants and refugees subjected to border controls, contrary to the provisions of Law 47/2017, which states that age assessment must be carried out taking into account identity documents and, if necessary, following a multidisciplinary procedure as part of a proceeding under the jurisdiction of the Juvenile Court. In 2020, in at least four cases, the Juvenile Court of Trieste ordered the fulfilment of the procedure for the age assessment of the persons involved, following appeals lodged by minors who had been identified as adults with the result of being placed in adult facilities.[13]
ASGI has urged Italian authorities to comply with the ban envisaged by current national legislation and by Article 37 of the CRC (“no child shall be deprived of their liberty unlawfully or arbitrarily”) concerning the detention of minors and their placement in structures characterised by conditions of promiscuity or forms of de facto detention, such as hotspots; ensure that reports concerning persons who declare themselves to be minors and who are present in CPRs, hotspots, or other facilities, are immediately taken in charge by competent authorities and that transfer to suitable structures is immediately arranged.[14]
The recent amendments made by Decree-Law 133/2023, converted by Law 176/2023, introduced exceptions in ascertaining the age of unaccompanied minors in case of large, multiple and close arrivals, following search and rescue activities at sea, or apprehension at the border or in transit zones. In such cases, wide discretion is granted to the public security authorities in the identification procedures, by carrying out anthropometric or other health assessments, including X-rays, aimed at identifying age. The only limit for the public security authorities is the request for authorisation that must be sent in writing to the Public Prosecutor’s Office at the Juvenile Court who has to give authorization. In particularly urgent cases, authorisation may be given orally and only subsequently confirmed in writing.[15]
ASGI pointed out how the new provisions introduced by Law Decree 133/2023 run the risk of nullifying the rules and protocols that were in force until then, which, although not formally affected, are weakened in relation to the possible extension of the application of the new derogatory procedure, which focuses on the rapidity of the outcome to the detriment of the guarantees for the person.
On a completely discretionary basis, because there are no parameters or reference indications laid down by law, the public security authorities can decide whether to start the ordinary procedure, which, as seen, requires an assessment based on several methods to be applied together and the initiation of proceedings at the Juvenile Court with the adoption of a final decree, or whether to, outside of the multidisciplinary approach, also subject a person claiming to be a minor to individual examinations, including radiological examinations, the (un)reliability of which has been debated for years.[16]
Detention of other vulnerable groups
Detention of children in families in CPR is not prohibited. Children can be detained together with their parents if they request it and if decided by the Juvenile Court. In practice, very few children are detained.
The law also prohibits the detention of vulnerable persons,[17] although in practice shortcomings regarding identification and age-assessment procedures at the hotspot means that this is not always ensured.[18] According to the law, in the framework of the social and health services guaranteed in CPR, an assessment of vulnerability situations requiring specific assistance should be periodically provided.[19] In CPR, however, legal assistance and psychological support are not systematically provided, although the latter was foreseen in the tender specifications schemes (capitolato) published by the Ministry of Interior on 20 November 2018 and on 24 February 2021. As of March 2024, no protocol on early identification of and assistance to vulnerable persons, and on the referral system to specialised services and/or reception centres was adopted. Although standards of services in CPR centres are planned following the national regulation on management of the centres, they are insufficient and inadequate, especially for vulnerable categories of individuals. Moreover, the quality of services may differ from one CPR to another. In this respect, the Reception Decree provides that, where possible, a specific place should be reserved to asylum seekers,[20] and Article 4(i) of the Directive of Minister of Interior of May 2022,[21] which deleted the previous Regulation of 20 October 2014 of the Minister of Interior, provides the same for persons with special reception needs.
Issues with protection of persons with special needs in detention have been reported by the Guarantor, who has stressed the need for enhanced referral mechanisms and continuous monitoring of health conditions of detained persons, via stipulation of MoU with local sanitary services.[22] ASGI’s monitoring of CPRs has stressed that in these places, vulnerabilities are often ignored and unaddressed: minors, people with disabilities, victims of abuse, asylum seekers, people accused of serious crimes or socially dangerous people are mixed together, which increases the tensions and risks of crises.[23]
From a gender perspective, it must be noted that – also due to the temporary closure in 2021 of the women section of Rome’s CPR, which is the only present on the national territory – there has been a sharp decrease in numbers of women detained in CPRs. In 2022, only 57 women were detained in the CPR, only 18 of which was returned (30 were released following non-validation of the detention order by the judge, 2 dismissed for other reasons, 2 discharged because they were not identified by the deadline, 1 has been arrested inside the CPR and 4 as applicant for international protection). Contrastingly, in 2020, 223 women had been detained in the CPR, representing circa 4% of the total detained persons; the most represented nationalities were China (47 women), Nigeria (33), Morocco (14), Tunisia (13), Ukraine and Georgia (12); 31 were returned, 146 were released due to non-validation of the detention by the judge, 26 were released upon reaching maximum term of detention, 9 were released as applicants for international protection.[24]
From the beginning of the year to 31 March 2023, 9 women had been detained in the CPR; only 3 of them were returned, while 4 were released after the non-validation of the detention ordered by the judges, 1 released because she was not identified by the deadline and 1 as she applied for international protection.[25]
The enhanced vulnerability of women in detention and the many criticalities of the women’s section of Rome’s CPR have been repeatedly noted.[26]
Women represent a minority in hotspots, representing only 10% of the total number of persons held in hotspots in 2021 (5,278 out of 55,135). The most represented nationalities were Ivorian (2,155), Guinean (1,181), Tunisian (709), Cameroonians (369), Syrian (154) and Nigerian (109).[27] In 2020, 1,641 women were held in hotspots, representing 6% of the hotspot population. In 2021, ASGI has documented a critical situation in Lampedusa’s hotspot. The report found that overcrowding, the condition of promiscuity also for what concerned shared bathrooms, the prevalent presence of male police personnel, the absence of places to conduct interviews in a protected setting, the lack of access to adequate mediation and information and structured mechanisms of identification and referrals, expose women to a high risk of experiencing (in some cases, further) violence. As highlighted in the report, these situations also risk significantly undermining the determination of women who intend to seek protection, as they could flee from a gender-based violence experience (as they could be controlled by a trafficking network, experience domestic violence, or suffer abuse) or because, due to the aforementioned conditions, they might experience an accident, abuse or feel unsafe within the facilities.[28]
This situation continued into 2022[29] and brought ASGI to file urgent appeals to the European Court of Human Rights in 2022, demanding the immediate transfer from the Lampedusa hotspot of three family units; as a consequence, the Court ordered the Italian government to immediately transfer one of the families.[30]
[1] See also for an overview on these cases, the communications sent by ASGI under Rule 9.2 of the Rules of the Committee of Minister concerning the case of Darboe and Camara v. Italy (Application No. 5797/17) on November 2023, available at https://bit.ly/4c5o6BT and on January 2024, available at: https://bit.ly/45bcDyD.
[2] Article 19(4) Reception Decree.
[3] ASGI, Unaccompanied minors: critical conditions at Italian internal and external borders, June 2021, available at: https://bit.ly/34PNMpg.
[4] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6.
[5] National Guarantor for the rights of detained persons, Rapporto sulle visite effettuate nei CPR (2019 – 2020), available in Italian at: https://lc.cx/iBkl4R.
[6] ASGI, Unaccompanied minors: critical conditions at Italian internal and external borders, June 2021, available at: https://bit.ly/34PNMpg.
[7] ASGI, ‘A 12 anni nell’hotspot “dedicato” ai minori: Report da Pozzallo e Cifali’, October 2023, available in Italian at: https://lc.cx/KYzoKq.
[8] ECtHR, No. 47287/17, A.T. and others v. Italy, 23 November 2023, available at: https://bit.ly/3PxZCZ1.
[9] ASGI, ‘CEDU: minori stranieri detenuti illegalmente nell’hotspot di Taranto. ASGI: vanno ricollocati’, November 2023, available in Italian at: https://rb.gy/kjrj8l.
[10] LASCIATECIENTRARE, Dietro le mura. Abusi, violenze e diritti negati nei CPR d’Italia, October 2022, available in Italian at: https://rb.gy/daoyns.
[11] ASGI, The Black book on the Pre-Removal Detention Centre (CPR) of migrants in Turin – Corso Brunelleschi, September 2021, available at: https://rb.gy/zezi9h.
[12] National Guarantor for the rights of detained persons, Rapporto sulle visite effettuate nei CPR (2019 – 2020), available in Italian at: https://bit.ly/3MPri93.
[13] ASGI, Unaccompanied minors: critical conditions at Italian internal and external borders, June 2021, available at: https://bit.ly/34PNMpg.
[14] Ibidem.
[15] Article 19(6bis) Reception Decree, as amended by Article 5 Decree Law 133/2023 converted by L 176/2023.
[16] ASGI, Informal hearing as part of the examination of Bill C. 1458, converting Decree-Law No. 133 of 2023 on urgent provisions on immigration and international protection, as well as on support for security policies and the functionality of the Ministry of the Interior, October 2023, available at: https://lc.cx/8nQzrf.
[17] Article 7(5) Reception Decree, as amended by Article 8 Decree Law 13/2017 and L 46/2017.
[18] ASGI, Unaccompanied minors: critical conditions at Italian internal and external borders, June 2021, available at: https://bit.ly/34PNMpg.
[19] Article 7(5) Reception Decree.
[20] Article 7(1) Reception Decree.
[21] Ministry of Interior, Direttiva recante “Criteri per l’organizzazione e la gestione dei centri di permanenza per i rimpatri previsti dall’art. 14 del decreto legislativo 25 luglio 1998, n. 286 e successive modificazioni”, available in Italian at: https://rb.gy/tjhasw.
[22] National Guarantor for the rights of detained persons, Summary document concerning the CPRs, also in the light of the monitoring activities carried out by the local Guarantors in the exercise of the visit powers conferred to them by the National Guarantor in January-March 2023, April 2023, available at: https://rb.gy/lqzpdg.
[23] ASGI, The Black book on the Pre-Removal Detention Centre (CPR) of migrants in Turin – Corso Brunelleschi, September 2021, available at: https://bit.ly/3CQZQD5.
[24] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6; National Guarantor for the rights of detained persons, Relazione al Parlamento, June 2020, available in Italian at: https://bit.ly/3ibI5ov.
[25] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6.
[26] Il Post, ‘Nessuno aiuta le donne al centro di detenzione di Ponte Galeria’, January 2021, available in Italian at:
Annalisa Camilli, ‘Chi sono le donne rinchiuse nel centro di espulsione di Roma’, Internazionale, February 2019, available at: http://bit.ly/3KT7qQD.
[27] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6.
[28] ASGI, ‘Una prospettiva di genere sull’Hotspot di Lampedusa: la sistematica e colposa violazione dei diritti delle donne’, October 2021, available in Italian at: https://bit.ly/3tgdRHf.
[29] ASGI, Report sulla visita al Centro hotspot di Lampedusa, August 2022, available in Italian at: https://rb.gy/nnzol1.
[30] ASGI, ‘Diritti violati nell’ hotspot di Lampedusa: per la CEDU il trattamento è disumano e degradante solo per le famiglie con minori’, November 2022, available in Italian at: https://rb.gy/v0k8qw.