The administrative detention of undocumented third-country nationals.

di Olivia Lopez Curzi


Less than a month ago, precisely the 17th of September, 20 Nigerian women – or I should probably say girls, given their young age – have been hastily and forcibly removed from the CIE of Ponte Galeria and taken to the close-by Fiumicino airport to be deported back to Nigeria. The women subjected to the refoulement bore on their bodies the signs and scars of the violence they suffered during the journey in the hands of the traffickers and were still exposed to the risk of falling in that same criminal network both back in Nigeria and in Italy. Rescued at sea and then landed in Italy, they were Brought to the CIE of Ponte Galeria on the 23rd of July, just after making the arduous journey by boat. Only there the girls were informed circa their rights by civil society associations and non-profit organizations – rather than by the competent authorities – and were finally able to request asylum. However, except four of them who were admitted to a protection path, the others were denied the granting of the international protection (or of a permit to stay for humanitarian reasons) by the Territorial Commission.

The deportation which took place on the 17th of September was performed in spite of the contemporary issuance of suspension orders of the deferred rejection at the border (or respingimento differito) by the Court of Rome which was promptly notified to the Questura by the lawyers of the Legal Clinic of the University Roma 3. In fact, if one Nigerian woman who had been granted by the Court the suspension of the execution of the deportation was actually disembarked from the plane, at least two other recipients of a similar order – reported by 1.43 PM by lawyers to the Questura in Rome, thus well before the actual departure of the plane, which took place at approximately 3.30 PM – were actually deported, in clear contravention of the decision of the Court of Rome. I could go on narrating the stories of Hassen Ghannoudi – a 22 year old Tunisian boy, who, after having finished to serve a two year sentence in an Italian prison, and thus clearly identified but evidently practically unexpellable, has been once again restrained, this time in the CIE of Ponte Galeria. And he is still detained there from the 8th of August, a period clearly exceeding the 30-day period accorded by the law to administrative authorities to perform the expulsion of a person who has just finished to serve a sentence of more than 90 days in prison. The normative is clear: those who have been in prison for at least 90 days, can not be detained in a CIE for more than 30 days. Article 14 paragraph 5 of the Unified Text on Immigration has been applied in several cases, including in those, like the one of Hassen, where the subject has not been brought to the CIE directly from prison. Yet at every extension hearing, the justice of the peace decided to confirm the detention of Hassen. It could be possible to talk for hours about stories like the one of Hassen, or Mercy, one of the Nigerian women. Stories which help to paint the worrisome picture which portrays the state of art of the fragmented and structurally inconsistent normative framework on the subject and the discretionary, and very often illegitimate, praxis of administrative detention. The scope of this dissertation has thus been to explore the evolution of the international and regional normative framework on the administrative detention of undocumented third-country nationals, in order to be able to assess whether the Italian legislation and praxis of administrative detention of third-country nationals complies with international and regional human rights law and constitutional norms.

Third-country nationals have been constantly kept on the edge of humanitarian protection, captured somehow in the antinomy between the universalistic logic that pervades the philosophy of human rights and the particularistic logic that takes the form of the sovereign prerogative to exclude. In recent years, the security logics pervading ‘the migration discourse’ has become even stronger, eventually reaching its climax with the recent EU response to address – at least rhetorically – what Amnesty International has defined as the worst displacement crisis since the second world war. European Union States have in fact focused on the fight against undocumented migration pursuing initiatives as the EU-Horn of Africa Migration Route Initiative (or Khartoum Process) and on building an even more restrictive system concerning the administrative detention of those called by EU institutions as ‘economic migrants’. It should not thus come as a surprise the fact that the administrative detention of undocumented third-country nationals is substantially legitimized by international and European human rights law and by the Italian legislation. However, even if substantially legitimized, administrative detention sill has to comply with several substantive and procedural safeguards enshrined in international treaties and in the Italian Constitution.

Already in 1998, both in the parliamentary debate and in the accompanying report of Law Turco-Napolitano, reference was made – in search of a legal basis for the administrative detention of third-country nationals – to Article 5 ECHR, which would have allowed the national legislator to adopt measures restricting personal liberty in the case of “the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. This provision, however, should be interpreted consistently with the recognition of fundamental human rights enshrined in international conventions and in the Italian Constitution. In fact, if Article 5 European Convention on Human Rights (ECHR) permits States to lawfully hold in administrative detention third-country nationals, the measure restricting freedom must still be “proportionate and appropriate,” respect the riserva di legge and the riserva di giurisdizione, and have a duration proportionated to the requirement of ensuring the forced escort to the border. Furthermore, at all stages of detention must be guaranteed the right of defense.

Despite the rather clear international, EU, and constitutional obligations limiting States’ recourse to the instrument of administrative detention, as well as protecting the most fundamental human rights of third-country nationals, the Italian legislator has produced a normative framework which presents numerous profiles of fragility, issues of constitutionality, and non-compliance with EU and international sources.

The Italian legislator’s attempt to evade the limits – and consequent guarantees for third-country nationals – imposed on the use of coercion by constitutional and international norms – through the use of precise terminological choices to disguise the detentive nature of Centers of Temporary Permanence and Assistance first and then of CIEs – was curbed, at least on paper, by the intervention of the Constitutional Court which, with sentence No. 105/2001, firmly attributed the administrative detention of third-country nationals to the constitutional perimeter of Article 13 and its guarantees. However, the Italian primary legislation concerning the administrative detention of undocumented third-country nationals ends up entrusting the government of several fundamental aspects to secondary legislation, thus leaving a wide margin of discretion to administrative authorities and not respecting the riserva di legge enshrined in the most fundamental document of the Italian Republic, its Constitution. Seeming oblivious to the fact that it is the space to determine the concrete morphology of the status detentionis – and, thus, its afflictive degree –, the Italian legislator produced a normative framework which is pretty laconic concerning the nature and features of the facilities to be utilized as CIEs. In fact, the core normative instrument concerning the administrative detention of third-country nationals, the Unified Text on Immigration (UTI), is not only silent circa the nature and features of the facilities to be utilized as CIEs, but also circa the detention’s modalities, and the treatment of detained third-country nationals and the respect of their most fundamental human rights.

Another universally recognized principle is that of the riserva di giurisdizione on administrative measures restricting personal freedom. In fact, Article 5 ECHR, Article 9 International Covenant on Civil and Political Rights (ICCPR), Article 16.6 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) and Article 15.2 of the Return Directive, oblige States to provide for a speedy judicial review of the lawfulness of detention or, alternatively, to grant to the concerned third-country national the right to take proceedings before a court. “The Italian Constitution, however, would seem to offer stronger protection than that provided by international legal instruments, as, besides the principles of legality and habeas corpus, it establishes a strict requirement of ‘necessity’ for the legitimacy of administrative detention” (Campesi, “Immigrant detention and the double logic of securitization in Italy,” p. 148). Thus, according to the funding document of the Italian Republic, detention orders may be issued on an ordinary basis solely by courts, specifying that in exceptional circumstances law-enforcement authorities may adopt temporary measures restricting personal freedom. Despite the clear residual nature assigned to such temporary measures by the Italian Constitution, the legislator ended up producing a normative framework in clear violation of Article 13 in which detention orders are ordinarily issued by administrative authorities. However, this is not the only profile of fragility characterizing the riserva di giurisidizione as applied to administrative detention in Italy. Contrarily to the Return Directive, the Italian normative framework does not allow neither the third-country national, nor the justice of the peace to activate judicial review before the date set for the extension of the detention measure. Further limiting the effectiveness of judicial review on this peculiar form of deprivation of liberty is the fact that during the first extension hearing the justice of the peace continues to be inhibited from graduating the extension term proportionally to the needs concretely put forward by administrative authorities in each individual case. Further excluding from an effective judicial control some significant devices of the regime control of third-country nationals, the legislator chose to not intervene to demand the respect of the right to be heard of the third-country national during the extension hearing. This matter has been also addressed by several Court of Cassation’s rulings, the latest of which dates back to the 9th of April 2015. In this judgment the Court of Cassation stated that the participation of the defendant and the hearing of the subject concerned (diritto al contradditorio) must be ensured also during extension hearings, and it did so interpreting secundum constitutionem the fifth paragraph of Article 14 UTI, which does not explicitly reiterates the requirement of hearing the concerned subject. The procedural safeguard of judicial review over some of the most afflictive administrative measures – including, obviously, the validation and extension of the detention measure – has been also significantly weakened by law No. 271/2004. Originally attributed to the administrative court, the competence of judicial review over such administrative measures has subsequently transited to the ordinary judicial authority in the person of the Pretore, then replaced by the court sitting in monocratic composition, and, in 2004, eventually moved to the justice of the peace. The latter – contrarily to the ordinary judge – is neither appointed through competitive examinations, nor has permanent tenure. This honorary semi-professional judge, who is paid on a piecework basis, is provided with the necessary support and the availability of a suitable place to exercise his function not by the justice administration, as happens for ordinary judges, but by the questura. These significant profiles of fragility result in a weaker protection of the riserva di giurisdizione contained in Article 13 of the Italian Constitution, Article 5 ECHR, Article 9 ICCPR, Article 16.6 IRCMW and Article 15.2 of the Return Directive.

Being characterized by several profiles of fragility both at the normative level and in the praxis – which inevitably affect the protection of the inviolable rights of undocumented third-country nationals – the administrative detention in CIEs results in a deprivation of personal liberty ordered by the administrative authority which should thus be attributed to the perimeter of Article 13 of the Italian Constitution and its guarantees. The recognition of the latters, however, is at least problematic being the detention of third-country nationals essentially left in the hands of law enforcement officials.

Having analyzed the normative framework concerning the administrative detention of undocumented third-country nationals, it is fundamental to note how this has produced over time a weaker recognition of a right that the Italian Constitution enshrines as inviolable, fueling the opinion according to which, in the face of an undocumented third-country national, the sovereign prerogative to control border – and thus the detention pending an (unlikely) deportation – ends up prevaricating the protection of one of the most fundamental rights, i.e. the right to personal liberty. The lack of a primary source governing the detention conditions and modalities fosters even more the presence of such a strong administrative discretion in the management of the individual structures, very often resulting in the neglecting of the rights of detainees by virtue of CIEs’ security needs.

[As Campesi says] immigrant detention law is, thus, a ‘derogatory law’, a law that imitates the guarantees of criminal law without possessing its substance. The progressive legalization of immigrant detention, far from representing a return within the framework of legality established by the paradigm of the rule of law has thus produced a mere proceduralization of the legal guarantees against arbitrary detention whose result has been to disguise police arbitrariness with a facade of legality. The normalization of immigrant detention has resulted in a dilution of the exception into Italian immigration law, to the point that it is now possible to resort to restrictive measures that the Italian Constitution describes as exceptional with no need to declare any suspension of the constitutional guarantees, acting in the shadow of that low-intensity permanent emergency that has inspired Italian migratory policy from the outset (Campesi, “Immigrant detention and the double logic of securitization in Italy,” (2014) p. 162).

Thus, even if the legislator will persist in considering administrative detention as an indispensable instrument in the management of undocumented migration – despite its scarce efficacy in actually reaching the goal of facilitating the lawful performance of the expulsions – it is imperative the introduction of major amendments – hopefully through the elaboration of an organic and consistent new text finally replacing the ‘stripped’ UTI – producing a normative and praxis of administrative detention fully complying with both constitutional provisions and international norms. Being personal liberty an inviolable right, the judicial authority in the figure of the ordinary judge should resort to administrative detention only as a residual, necessary and proportionate measure, favoring instead the use of voluntary repatriation and of less coercive measures. This should be paralleled by the full recognition of procedural safeguards against arbitrary detention and administrative discretion, without resorting to loopholes which de facto weaken the most fundamental rights of undocumented third-country nationals.


Questa che pubblichiamo è la presentazione della tesi di laura in Relazioni internazionali discussa il 2 novembre 2015 alla LUISS da Olivia Lopez Curzi