Duration of detention

Italy

Country Report: Duration of detention Last updated: 30/11/20

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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.

However, the newly introduced Article 6(3-bis) of the Reception Decree introduces the possibility to detain asylum seekers in hotspots for the purpose of determining their identity or nationality. The law states that this should happen in the shortest possible time and for a period not exceeding 30 days. If identification has not been possible within that timeframe, they could be sent to CPR for detention up to 180 days.[1]

The provision of a detention period up to 30 days and extendable to up to 180 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.

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.[2]

Responding to ASGI requests of September 2019, the Prefectures of Agrigento[3], Ragusa[4], Messina,[5] Taranto,[6] reported that the detention for identification purposes is still not applied and that appropriate places for detention for identification purposes have not yet been identified.

Thus, during 2019, as observed by ASGI as part of the In Limine project, the situation remained almost unchanged compared to 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.[7]

The Lampedusa hotspot continued, in 2019, to be a place where de facto detention is carried out.[8]  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.

The practice is well known to the authorities. In a circular letter sent in 2018 to the Director of the Lampedusa hotspot, the Prefecture of Agrigento specified that the exit and the return from and to the centre must take place only and exclusively through the main gate and that anyone caught at damaging the net could incur in penalties and damages.[9] On 13 April 2019, In Limine legal workers witnessed the military preventing three foreign citizens from leaving the main gate.[10]

The regulation[11] states that the "guests" have the possibility to leave the facility during daytime – from 8:00 a.m. to 8:00 p.m.- but only after the fotosegnalamento (making and registering the application) operations and with prior police authorization, but it does not specify within what time period the operations must be concluded.[12]

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.[13] The duration of pre-removal detention has been extended from 90 to 180 days.[14] 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.[15] 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,[16] 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.[17]

In 2019 and early 2020 in at least two 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 these two cases asylum seekers had been detained in CPR for more than two months without the audition having been set. [18] ( 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.[19] 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.[20] 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.[21]

The average duration of detention in CPR in 2019 is not available.

Out of 4,092 persons detained in CPR in 2018, 807 were released by the Questure following the expiry of the maximum time limit of detention.[22] No data were available at the time of writing for 2019.

 


[1]Article 6(3-bis) Reception Decree, inserted by Article 3 Decree Law 113/2018 and L 132/2018.

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

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

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

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

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

[7] 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] 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.

[9]  Circular letter sent from the Prefecture of Agrigento to the Director of Lampedusa hotspot, available in Italian at: https://cutt.ly/myO8Le0.

[10] ASGI  In Limine, ASGI, The theatre of Lampedusa.

[11] Pozzallo hotspost regulation, available in Italian at: https://cutt.ly/AyO8Zdg.

[12] Questione Giustizia, “Vietato girare in asciugamano: i regolamenti interni degli hotspot tra illegittimit√† e retoriche discriminanti, 24 June 2019,  available in Italian at: https://cutt.ly/JyO8ZMH.  

[13] Article 6(8) Reception Decree.

[14] Article 14(5) TUI, as amended by Article 2 Decree Law 113/2018 and L 132/2018.

[15] Article 6(5) Reception Decree.

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

[17] Article 6(6) Reception Decree.

[18] 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.

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

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

[21] Article 6(8) Reception Decree.

[22] Guarantor for the rights of detained persons, Relazione al Parlamento 2019, 26 March 2019, available in Italian at: https://bit.ly/2GijVoY, 135.

 

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