Author
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 in 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 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]
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.
In his report published after the visit carried out in February 2018 in the CPR of Brindisi, the Guarantor for the rights of detained persons, expressed concern about a communication he found of the local Prefecture addressed to the managing body about the need to reduce access to the CPR to the legal advisers of the detainees, limiting it only to Monday to Friday and in time slots established by the same managing body. Noting how the limitation is improper, he asked for the reasons.[4]
Some Bar Councils such as those in Turin and Bari set up specific lists of Court-appointed lawyers specialised in immigration law.
As for legal assistance inside the CPR, it should be provided by the body managing the centre, which however does not often guarantee this service and usually provides low-quality legal counselling. In this regard, it appears that there is a lack of sufficient and qualified legal assistance inside CPR.[5]
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.
As for the legal assistance in the hearing during the health emergency, the Bari Bar Association adopted a protocol establishing that the hearings be held online and specifying the procedure that the judges, the chancelleries, the defenders and the police personnel must follow. [6]
In Turin, in March 2021, after the positive result to the covid test of a police officer who works in the CPR, the CPR was closed to the defenders. Even the hearings were held in the absence of the detainees.
In 2020 and 2021 in many cases, the judges of the Civil Court in Trieste, held that the hearings to extend the detention of asylum seekers could be held without the presence of the detainee, either in person or with audiovisual tools.
[1] LasciateCIEntrare, Mai più CIE, 2013, 7.
[2]Article 13(5-bis) TUI.
[3] Article 6 (7) LD 142/2015.
[4] Guarantor for the rights of detained persons, Rapporto sulle visite effettuate nei centri di permanenza per il rimpatrio (Febbraio – Marzo 2018), 6 September 2018, available in Italian at: http://bit.ly/2uvu4cr.
[5] Senate, CIE Report, September 2014, 30.
[6] Available at : https://bit.ly/3eL60uj