Duration of detention

Italy

Country Report: Duration of detention Last updated: 03/06/21

Author

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.

However, Article 6(3-bis) of the Reception Decree introduced by Decree Law 113/2018 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 timeframe, 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]

During 2018 and before the reform, ASGI was able to observe that de facto detention in hotspots took place mainly in the first days after arrival and lasted until the identification procedures were concluded.[3] The reform, introduced by L. 132/2018 and confirmed by DL 130/2020 converted by L 173/2020, has given a legal basis to this practice already being implemented. However, as underlined by ASGI and CILd in a letter[4] sent on January 2021 to the Committee of Ministers of the Council of Europe, 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.

Responding to ASGI requests of September 2019, the Prefectures of Agrigento[5], Ragusa[6], Messina,[7] Taranto,[8] reported that the detention for identification purposes was still not applied and that appropriate places for detention for identification purposes had not yet been identified.

The Guarantor for the Rights of detained persons, stated that “at least until 31 December 2019, no  hotspot has been equipped with detention facilities and no detention measures have been ordered against asylum seekers inside them”.

In November 2020 the Questura of Agrigento confirmed to ASGI the impossibility to identify a place at the Lampedusa hotspot for the detention for identification purposes of asylum seekers and specified that no detention was carried out pursuant to art.6, par. 3bis, of the Legislative Decree 142/2015.  Therefore, the detention of asylum seekers and foreign nationals does not take place through the  implementation of the provisions contained in Law 132/2018.

The Guarantor for the Rights of detained persons raised critical issues on the detention of asylum seekers 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”.[9] In his previous report (March 2020) to Parliament, the Guarantor had pointed out that in the hotspots it may happen that migrants are deprived of their liberty without the possibility of recourse before the judicial authority, in a condition that he defined as a “limbo of legal protection”. The fact that these places are being used for quarantine, risks that the detention is prolonged indefinitely, if the period of precautionary isolation actually starts again every time new people arrive in the quarantine facility.[10]

Thus, during 2020, as also observed by ASGI as part of the In Limine project, the situation remained almost unchanged compared to 2019 and 2018 and a de facto detention, therefore devoid 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.[11]

The use of the hotspots such as the one of Lampedusa as a place for quarantine exacerbated the situation depriving the migrants of their personal liberty, which in some cases lasted over 15 days, without any maximum time limits. In most cases, they were subject to particularly strict controls and restriction regimes that impose a physical closure of the persons concerned and constant surveillance by means of surveillance devices.

The Lampedusa hotspot continued, in 2020, to be a place where de facto detention is carried out.[12]  Unlike other hotspots, the centre does not have an internal regulation, there is no system for regulating the entry and the exit from the structure. The military who guard the entrance do not allow foreign citizens to exit and to enter the gate and some people who are in the centre manage to exit through holes in the perimeter network, which is damaged in several places.

According to what was orally reported in October 2020 to ASGI by the competent authorities, even in the accommodation center of Monastir, people are de facto detained for identification purposes.[13]

Data on average duration of stay in hotspots in 2019 are not available at the time of writ

Duration of asylum and pre-removal detention

The maximum duration of detention of asylum seekers is 12 months.[14] The duration of pre-removal detention has been decreased from 180 to 90 days, plus 30 days in cases of repatriation agreements with the country of origins.[15] According to ASGI, the difference between the maximum duration of ordinary detention for third-country nationals (6 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.[16] 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,[17] 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.[18]

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. [19] The Court of Cassation also affirmed 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[20] (see also Judicial Review).

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.[21] 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.[22] 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.[23]

The average duration of detention in CPR in 2020 is not available.

As of 15 April 2020 the average time spent in hotspots was 11 days, but it reached 17 days in Messina and 21 days in the Pozzallo hotspot. In 2019, the average staying in Messina hotspot reached 42 days.[24]

Out of 6,172 persons detained in CPR in 2019, 515 were released by the Questure following the expiry of the maximum time limit of detention.[25]  As for 2020, as of 15 April 2020, out of 1,152 people detained, 204 were released following the expiry of the maximum time limit of detention.[26]

 

 

[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 et al., Scenari di frontiera: il caso Lampedusa, October 2018.

[4]  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/3bu0haa, January 2021

[5]  Answer from the Prefecture of Agrigento, 10 September 2019, available in Italian at: https://cutt.ly/wyO8Ssu.

[6] Answer from the Prefecture of Ragusa, 5 September 2019, available in Italian at:  https://cutt.ly/uyO8S0q.

[7]  Answer from the Prefecture of Messina, 20 September 2019, available in Italian at: https://cutt.ly/XyO8Dgi.

[8] Answer from the Prefecture of Taranto, 23 September 2019, available in Italian at: https://cutt.ly/IyO8Fet.

[9] Guarantor for the rights of detained persons, Parere sul decreto-legge 21 otrobre 2020, n. 130, available at: https://bit.ly/33IUnO8

[10]  Guarantor fot the rights of detained persons, Report to Parliament, March 2020, available at: https://bit.ly/3okpJnx, para. 22, pp. 105-107

[11] 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.

[12]  See: ASGI, In Limine, The theatre of Lampedusa, From the spectacularisation of NGO disembarkations to the silence on the day-to-day management of arrivals by sea, 19 July 2019, available in English at https://inlimine.ASGI.it/the-theatre-of-lampedusa/; and Borderline Sicilia Onlus, article on Metlingpot, Il confine Lampedusa. Prassi illegittime, indifferenza e resistenza, 29 September 2019, available in Italiana at: https://cutt.ly/zyO8Kts.

[13] ASGI, Report sopralluogo giuridico: la Sardegna come luogo di frontiera e di transito, December 2020, available at: https://bit.ly/2SPky3r

[14] Article 6(8) Reception Decree.

[15]  Article 14(5) TUI, as amended by Decree Law 130/2020 and L. 173/2020.

[16]  Article 6(5) Reception Decree.

[17]  Pursuant to Article 28-bis(1) and (3) Procedure Decree.

[18]  Article 6(6) Reception Decree.

[19] 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.

[20]  Court of Cassation, decision no. 2458/2021 published on 2 February 2021.

[21]   Article 35-bis(4) Procedure Decree.

[22] Article 6(7) Reception Decree, as amended by Article 8 Decree Law 13/2017 and L 46/2017.

[23]   Article 6(8) Reception Decree.

[24]   Guarantor for the rights of detained persons, Relazione al Parlamento 2020, March 2020, 203

[25]   Guarantor for the rights of detained persons, Relazione al Parlamento 2020, March 2020, p. 194.

[26]  Ibidem, 206

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview 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