Legal Database

In addition to the arguments on the damage to identity and compensability, the Supreme Court states that the condition of the individuals detained in the Bari C.I.E. was indeed inhuman and degrading, and such as to violate the solidaristic principles contained in the City Charter (a violation that the Court affirms was "effectively and definitively established" in this case).

Orders the Prefecture of Milan, the Police Headquarters of Milan, and the managing body of the Milan Via Corelli CPR to allow the detention and use of the mobile phone, which is the property of the individual, within the limits and according to the procedures established by Article 7 of the Ministerial Regulation of October 20, 2014.

The challenged decree validated the detention, "subject to a medical assessment of Rahmouni's compatibility with detention in the CIE," an assessment that, as an inescapable condition for the validity of the detention, should have been carried out before the validation and not after.

The judicial review of the validation of the detention of a foreign national must not be limited to verifying the justifying conditions for the adoption of the measure set out in Article 13, paragraph 4-bis, and Article 14, paragraph 1 of Legislative Decree No. 286 of 1998, in its current wording, but must also extend to the existence and effectiveness of the expulsion order, as well as to the verification of the presence of conditions of manifest illegality of the same, as an indispensable prerequisite for the ordered deprivation of personal liberty.

In immigration matters, when validating the detention order of a foreign national subject to an expulsion decision, the judge is required, based on a constitutionally oriented interpretation of Article 14 of Legislative Decree No. 286 of 1998 in relation to Article 5, paragraph 1, of the ECHR (which permits the detention of a person for expulsion, provided the procedure is regular), to assess incidentally, for the decision under their jurisdiction, the manifest illegality of the expulsion order, which may also consist of the foreign national's non-removability.

Concerning the procedural and temporal framework of the validation proceedings for the detention of an international protection applicant already detained (under Article 6, paragraph 3, of Legislative Decree No. 142 of 2015).

Article 6 of Legislative Decree 142/2015 establishes that a migrant, if at the time of submitting the application for international protection is already detained in a CPR for repatriation purposes (under Article 14 of Legislative Decree 286/1998), and there is a justified reason to believe that the application is merely instrumental and dilatory (to delay or prevent expulsion or deferred rejection), remains detained in the center (paragraph 3), following a new decree issued by the police commissioner and subject to a second validation hearing before the court. In the case of validation (pursuant to the subsequent paragraph 5), a new detention begins for a maximum period of sixty additional days, and the terms of the original detention under Article 14, paragraph 5, Legislative Decree 286/1998 are suspended. The applicant detained under paragraph 3 who files a legal appeal against the decision of the Territorial Commission rejecting the application under Article 35-bis of Legislative Decree 25/2008 remains in the center until the adoption of the decision referred to in paragraph 4 of the same Article 35-bis, as well as for the entire period they are authorized to remain in the national territory as a result of the legal appeal (paragraph 7). To this end, the police commissioner requests an extension of the ongoing detention for additional periods not exceeding sixty days, each of which can be extended by the court in a single-judge composition, as long as the conditions of paragraph 7 remain, with a maximum duration limit of total detention of twelve months (paragraph 8).

The review, by a judicial authority, of the compliance with the conditions of legality under Union law regarding the detention, akin to imprisonment, of a third-country national must lead that authority to raise ex officio, based on the elements of the case file brought to its attention, as supplemented or clarified during the adversarial proceedings, any failure to observe a condition of lawfulness, even if not invoked by the interested party (Court of Justice, Grand Chamber, Joined Cases C-704/20 and C-39/21).

Article 15, paragraphs 2 and 3, of Directive 2008/115/EC of the European Parliament and the Council, of 16 December 2008, laying down common standards and procedures in Member States for the return of third-country nationals whose stay is irregular, Article 9, paragraphs 3 and 5, of Directive 2013/33/EU of the European Parliament and the Council, of 26 June 2013, laying down standards for the reception of applicants for international protection, and Article 28, paragraph 4, of Regulation (EU) No. 604/2013 of the European Parliament and the Council, of 26 June 2013, establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the judicial authority's review of the lawfulness, under EU law, of the detention of a third-country national must lead that authority to identify ex officio, based on the elements in the case file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition of lawfulness not raised by the interested party. (Joined Cases C-704/20 and C-39/21).

In immigration matters, the court cannot order the extension of the detention of a foreign national in an identification and expulsion center when the expulsion order, which serves as the basis for the detention, has been suspended, even if improperly, since judicial review, while not being able to address the validity of the administrative expulsion, must focus on verifying the existence and effectiveness of the aforementioned coercive measure. In line with: Civil Supreme Court, Section I, 03/07/2020, No. 13741; Civil Supreme Court, Section I, 30/05/2022, No. 17422.