Judicial review of the detention order

Italy

Country Report: Judicial review of the detention order Last updated: 03/06/21

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Asylum seekers should not be sent to CPR before they have had the possibility to seek asylum, due to lack of proper information on the asylum procedure or because they are denied access to the procedure (see Registration). In practice, however, this happens and, in this case they are subject to the procedure for irregular migrants provided by the TUI until they are able to ask for asylum.

In 2020, in several cases, the Civil Court of Trieste did not validate the detention of Tunisians asylum seekers who had already submitted an asylum application from the quarantine ship and whose application therefore could not be considered instrumental. [1]

The detention decision must be validated within 48 hours by the competent Magistrates’ Court (giudice di pace). After the initial period of detention of 30 days, the judge, upon the request by the Chief of the Questura, may prolong the detention in CPR for an additional 30 days.[2] After this first extension, the Questore may request one or more extensions to a lower civil court, where it is decided by a Magistrates’ Court, in case there are concrete elements to believe that the identification of the concerned third-country national is likely to be carried out or that such delay is necessary to implement the return operations. The assessment concerning the duration of such an extension lies with the magistrate who decides on a case-by-case basis. The third-country national has the right to challenge the detention. The TUI, in fact, provides the right to appeal a detention order or an order extending detention.[3]

Decree Law 113/2018, implemented by L 132/2018, has provided for the possibility of detention in premises other than CPR. According to the amended Article 13(5-bis) TUI, in case of unavailability of places in the CPR located in the district of the competent Court, the Magistrate, upon request by the Questura, and fixing by decree the hearing to validate the detention, may authorise the temporary stay of the foreigner in different and suitable structures in the availability of the Public Security Authority until the conclusion of the validation procedure. In case the unavailability of places in CPR remain even after the validation hearing, the Magistrate can authorise the stay in suitable places near the Border Police Office concerned until the effective removal and in any case not exceeding 48 hours following the validation hearing.[4]

If, after being sent to a CPR or other places according to Article 13(5-bis) TUI, third-country nationals apply for asylum, they will be subject to detention pursuant to Article 6 of the Reception Decree. In these cases the competence to the judicial review on the validation or extension of detention is up to the specialized section of the competent Civil Court, having regard to the place where the centre is located.[5]

The Questore’s order related to the detention or the extension thereof shall be issued in writing, accompanied by an explanatory statement, and shall indicate that the applicant may submit to the court section responsible for validating the order, personally or with the aid of a lawyer, statements of defence. Such order shall be communicated to the applicant in the first language that the applicant has indicated or in a language that the applicant can reasonably understand.[6]

According to the law, the applicant takes part in the hearing on the validation of detention by videoconference, allowing the lawyer to be present at the place where the applicant is located. The presence of a police officer should ensure that there are no impediments or limitations on the exercise of the asylum seeker’s rights.[7] As stressed during the discussion of the provision in the Senate, the lawyer is then forced to choose between being present next to the client or next to the judge at the validation hearing.[8]

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.[9] However, the detention or the prolongation of detention shall not last beyond the time necessary for the examination of the asylum application under accelerated procedure,[10] unless additional detention grounds are present 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, should not constitute valid ground for the extension of the detention.[11]

On 6 October 2016, in the case Richmond Yaw and others v. Italy, the European Court of Human Rights condemned Italy for a violation of Article 5 ECHR regarding the detention in CPR of some Ghanese asylum seekers, whose detention had been extended without a validation hearing and therefore without ensuring a debate between the parties.[12]

On 15 January 2019, the Court of Palermo ruled that the request to extend the detention of an asylum seeker within CPR of Trapani was inadmissible in the absence of the procedural guarantees provided by law. The request for extension had in fact been sent to the Court by the immigration office of the Questura without any written provision adopted by the Questore of Trapani and nothing had been notified to the person concerned.[13]

On 6 August 2019, the Civil Court of Turin ordered the immediate release of an asylum seeker detained for over two months without the audition having been set, considering the unjustified exceeding of the accelerated procedure terms regulated by art. 28 bis of the Procedures Decree. The Court decided on a review request ruled by Article 9 (5) Directive 2013/33/EU, self-executing in Italy. [14]

The Civil Court of Trieste rejected on 13 January 2020, the request to extend the detention of an asylum seeker within the CPR of Gradisca d’Isonzo, for the unjustified exceeding of the accelerated procedure terms. [15]

On 11 December 2020, the Court of Cassation affirmed an important principle regarding the need not to limit personal freedom for asylum seekers beyond the time limits for examining the application provided for under the accelerated procedure, unless there are other reasons for detention. In the case examined by the Court, the applicant had submitted an application, within the CPR, and the application was deemed to have been submitted for the sole purpose of preventing or avoiding a removal order. After about two months the Civil Court of Turin had extended the detention although the Territorial Commission had not yet summoned the applicant for the hearing. Therefore, the times to examine the application had exceeded the limits set out in Article 28 bis of the Procedure Decree and the provisions of Article 6 of the Reception Decree were violated as according to it any delays in the procedure not attributable to the applicant do not justify the extension of the detention.[16]

By extending the scope of this ruling to the judicial phase, the Civil Court of Trieste rejected the extension of a detention for which the suspension of the refusal issued by the Territorial Commission had been requested with the appeal for more than two and a half months. The Court observed that the Court had omitted to rule about the suspension within 5 days from the request, as required under accelerated procedure by the Procedure Decree.[17]

With a decision of 9 December 2020, the Court of Cassation reiterated that detention must be considered exceptional and considered the extension illegitimate because it was not adequately motivated with respect to the corresponding functionality for repatriation.[18]

In 2019 the Civil Court of Palermo assessed the legitimacy of the detention of some foreign citizens transferred from the Lampedusa hotspot to the Trapani CPR. As monitored by ASGI (see Hotspot) during their stay in hotspot these persons had already expressed their will to seek asylum but before their transfer they were asked to sign an information sheet “scheda informativa” declaring to be no longer interested in seeking international protection. Transferred to the CPR of Trapani these persons again expressed their will to seek asylum before the Magistrate (Giudice di Pace) during the detention validation hearing. Their detention was validated as the Magistrates based their decision on the statements contained in the information sheet (scheda informativa). Only after about 20 days, they reached to register their will to seek asylum to the competent Questura. Deciding on the validity of their detention order, in one case the Civil Court of Palermo considered the asylum applications submitted for the sole purpose of delaying or preventing the execution of the removal order pursuant to Article 6 (3) of the Reception Decree.[19] In two other cases the Civil Court of Palermo did not validate the detention of two asylum seekers denying value to the statement contained in the scheda informativa considering it was not sufficient to fulfill the duty of information on the right of asylum pursuant to art. 10 ter TUI and in any case considering it was unreliable for the way it was hired.[20] In 2020, in two relevant cases the Court of Cassation confirmed the inconsistency of “foglio notizie” to determine the legal status of migrants (see Information at the border).

Out of 6,172 persons placed in detention in 2019, 1,755 were released following an order from the court. Regarding 2020, as of 15 April 2020, out of 1,152 persons detained, 358 were released because the judge did not validate their detention.[21]

 

 

[1]  i.e. Civil Court of Trieste, decision of 20 November 2020.

[2]  Article 14(5) TUI.

[3]  Article 14(6) TUI.

[4]  Article 13(5-bis) TUI, inserted by Article 4 Decree Law 113/2018 and L 132/2018.

[5] Article 3 ( 1 c), read in conjunction with art. 4 (3) Law decree 13/2017 converted by Law 46/2017 and Article 6 (7) Reception Decree.

[6] Article 6(5) Reception Decree, as amended by L 46/2017. Nevertheless, as reported to ASGI, some Questure, when issuing the detention order, do not provide asylum seekers with copy of such orders nor explanations of the reasons for detention.

[7]  Article 6(5) Reception Decree, as amended by L 46/2017.

[8]  Senate, 2017 CPR Report, December 2017.

[9]  Article 6(5) Reception Decree.

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

[11] Article 6(6) Reception Decree.

[12]  ECtHR, Richmond Yaw and others v. Italy, Application No 3342/11, Judgment of 6 October 2016.

[13]   Civil Court of Palermo, Decision 439/2019, 15 January 2019, available at: http://bit.ly/2UlWEvH

[14] Civil Court of Turin, decision 5114/2019, 6 August 2019, procedure 19920/2019, available in Italian at: https://cutt.ly/kyO5bvZ.

[15]  Civil Court of Trieste, decision 30/2020, 13 January 2020, see: https://cutt.ly/cyO5Jth.

[16]  Court of Cassation, decision no. 2548/2021, of 11 December 2020, published on 3 February 2021. See also for a note to the decision: https://bit.ly/3oeonus

[17]  Civil Court of Trieste, decision 16 March 2021.

[18] Court of Cassation, decision of 23 July 2020, published on 9 December 2020, no. 28063.

[19]  Civil Court of Palermo, see: https://cutt.ly/yyO5n4g.

[20]  Civil Court of Palermo, decision available in Italian at: https://cutt.ly/myO5LIE.

[21]   Guarantor for the rights of detained persons, Report to Parliament, March 2020, p. 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