Legal assistance for review of detention

Austria

Country Report: Legal assistance for review of detention Last updated: 25/04/22

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According to Article 2 of the CIE Regulation the individual is informed of his or her rights and duties in a language he or she understands and is provided with the list of lawyers. Due to the broad discretion of each Prefecture in authorising access to CPR (see section on Access to Detention Facilities), however, lawyers may have problems entering these detention structures.[1]

Under the TUI, free legal aid must be provided in case of appeal against the person’s expulsion order, on the basis of which third-country nationals who have not lodged their asylum application can be detained.[2] Free legal aid is also provided for the validation of detention of asylum seekers, as well. In this case, the asylum seeker concerned can also request a court-appointed lawyer. Lawyers appointed by the State have no specific expertise in the field of refugee law and they may not offer effective legal assistance. In addition, according to some legal experts, assigned attorneys may not have enough time to prepare the case as they are usually appointed in the morning of the hearing.

Free legal aid is provided for the validation or extension of detention of third-country nationals. However, the effectiveness of the legal defence is compromised due to the circumstance that relevant documents are sent in advance to the judge (Giudice di Pace) but not to the lawyer who, therefore, generally manages to see the reasons underlying the request for validation or extension of the detention only immediately before the hearing. The same situation concerns the defence of asylum seekers who do not have or no longer have the right to remain in the centre (therefore in Italy) pending the judicial decision on their asylum application, since in such cases the jurisdiction is of the Giudice di Pace and not of the Civil Court.[3]

CPRs’ managing bodies are in charge of organising a “normative information provision” service. The funds for such service, however, have been drastically cut via the tender specifications for 2018 and 2021. There was, in fact, a decrease in the number of hours dedicated to this activity: by 66% (for Centres with up to 50 places); by 70% (for Centres with up to 150 places); by 78% (for Centres with up to 300 places). This had inevitable repercussions on the effective protection of the right to information of detainees.[4]

Another relevant obstacle which hampers persons detained in CPR from obtaining information on their rights and thus enjoying their right to legal assistance is the shortage of interpreters available in the detention centres, who should be provided by the specific body running the structure. In 2021, it was reported that in Milan’s CPR, some daytime operators also worked as cultural mediators and cleaners; in Turin’s CPR, there is a lack of cultural mediators and those present do not cover all languages spoken by detainees; in Gradisca’s CPR, the lack of linguistic mediation service has led to the practice – condemned by the CPT – of using other detainees as ad hoc “translators”.

Regarding interviews with lawyers, in 2020 and 2021 limitations on access to the Centres for the conduct of defence interviews were reported. In some cases, these limitations were justified because of the effects of COVID-19 or other public order-related problems. In the Palazzo San Gervasio and Macomer centres, lawyers are prevented from using their mobile phones inside the facility. It was also reported that confidentiality is not always guaranteed during defence interviews and that there is no adequate linguistic support personnel in the CPR to support.[5]

Significant limitations to freedom of communication – which is guaranteed in theory but often significantly limited, if not completely denied (with inadequate number of landline phones and/or seizing of personal mobile phones) – may also affect the concrete exercise of the right to defence.

 

 

 

[1] LasciateCIEntrare, Mai più CIE, 2013, 7.

[2] Article 13(5-bis) TUI.

[3] Article 6 (7) LD 142/2015.

[4] CILD, Buchi Neri, available in Italian at: https://bit.ly/3u710qg.

[5] Ibidem.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation