Heard in Parliament in June 2019, the Guarantor for the rights of detained persons expressed concern that many people had been detained without legal basis and in fact most had been released on the orders of the judges.
For example, he found that in the first six months of 2019, in the CPR of San Gervasio, out of 491 persons detained, only 80 had been repatriated while in 349 cases the judge had not validated the detention. Similarly, in Bari, of 267 persons detained, only 39.3 % were repatriated and in 123 cases the detention was not validated by the judge.
Asylum seekers shall not be detained for the sole reason of the examination of their application. An applicant shall be detained in CPR, on the basis of a case by case evaluation, when he or she:
- Falls under the exclusion clauses laid down in Article 1F of the 1951 Convention, following a decision of the CNDA;
- Is issued an expulsion order on the basis that he or she constitutes a danger to public order or state security, or as suspected of being affiliated to a mafia-related organisation, has conducted or financed terrorist activities, has cooperated in selling or smuggling weapons or habitually conducts any form of criminal activity, including with the intention of committing acts of terrorism;
- May represent a danger for public order and security.
According to the law, to assess such a danger, previous convictions, final or non-final, may be taken into account, including the conviction adopted following the enforcement of the penalty at the request of the party pursuant to Article 444 of the Italian Criminal Procedure Code, in relation to certain serious crimes, to drug crimes, sexual crimes, facilitation of illegal immigration, recruiting of persons for prostitution, exploitation of prostitution and of children to be used in illegal activities.
With regard to this provision, the Court of Cassation annulled an order of the Court of Turin to extend the detention of an asylum seeker convicted for resistance to a public official. The Court considered that the granting of the benefit of the conditional suspension of the penalty contradicted the finding of a threat to public order;
- Presents a risk of absconding.
The assessment of such risk is made on a case by case basis, when the applicant has previously and systematically provided false declarations or documents on his or her personal data in order to avoid the adoption or the enforcement of an expulsion order, or when the applicant has not complied with alternatives to detention such as, stay in an assigned place of residence determined by the competent authority or reporting at given times to the competent authority. Following Decree Law 13/2017, implemented by L 46/2017, repeated refusal to undergo fingerprinting at hotspots or on the national territory also constitutes a criterion indicating a risk of absconding.
The Reception Decree also provides that:
- Third-country nationals who apply for asylum when they are already held in CPR and are waiting for the enforcement of a return order pursuant to Article 10 TUI or an expulsion order pursuant to Articles 13 and 14 TUI shall remain in detention when, in addition to the abovementioned reasons, there are reasonable grounds to consider that the application has been submitted with the sole reason of delaying or obstructing the enforcement of the expulsion order.
Detention for identification purposes
Furthermore, a 2018 amendment to the Reception Decree has added that:
- Asylum seekers may be detained in hotspots or first reception centres for the purpose of establishment of their identity or nationality. If the determination or verification of identity or nationality is not possible in those premises, they can be transferred to a CPR.
As those premises had not yet been identified, detention in hotspots occurrs de facto. (see duration of detention for identification purposes). In Lampedusa, the civil society organisations were able to observe that the centre gate was constantly closed and migrants could leave the centre only through openings in the fence, regularly adjusted by the administration and reopened by migrants. On the other hand, people taken to Lampedusa are de facto detained on the island, because, without an identity document, they cannot purchase a title of travel and leave.
While the law does not clarify the procedure relating to the validation of this form of detention, the Ministry of Interior Circular of 27 December 2018 generically refers to validation by the judicial authority. According to ASGI, the same procedure envisaged for other grounds for detention of asylum seekers should apply to these cases.
In addition, the law does not specify in which cases the need for identification arises, thus linking detention not to the conduct of the applicant but to an objective circumstance such as the lack of identity documents.
According to ASGI, the new detention ground represents a violation of the prohibition on detention of asylum seekers for the sole purpose of examining their application under see Article 8(1) of the recast Reception Conditions Directive. People fleeing their countries often do not have identification documents and cannot contact the authorities of the countries of origin as this could be interpreted as re-availing themselves of the protection of that country.
 Hearing at Chamber of Deputies of the Guarantor for the rights of detained persons, 27 June 2019, available in Italian at: https://cutt.ly/YyO8Uv6.
 Article 6(1) Reception Decree.
 Article 6(2) Reception Decree.
 Article 13(1) TUI.
 Article 13(2)(c) TUI.
 Article 3(1) Decree Law 144/2005, implemented by L 155/2005.
 Article 380(1)-(2) Criminal Procedure Code is cited, which refers to individuals who have participated in, among others, the following criminal activities: (a) child prostitution; (b) child pornography; (c) slavery; (d) looting and vandalism; (e) crimes against the community or the state authorities.
 Court of Cassation, Decision 27739/2018, 31 October 2018.
 Article 13(5), (5.2) and (13) and Article 14 TUI. Article 13 TUI, to which Article 6 Reception Decree refers, also includes the obligation to surrender a passport but this should not be applied to asylum seekers because of their particular condition.
 Article 10-ter(3) TUI, inserted by Decree Law 13/2017 and L 46/2017.
 Article 6(3) Reception Decree.
 Article 6(3-bis) Reception Decree, inserted by Article 3 Decree Law 113/2018 and L 132/2018.