Legal Database

Regarding the possibility of submitting a request for review in the absence of an explicit legislative provision, in a jurisprudential context with conflicting opinions on this point, the Supreme Court recently expressed its opinion with sentence no. 22932 of 2017, which, with reference to Article 15 of EU Directive No. 115 of 2008, held that the cited norm, although not implemented into our legal system, constitutes a directly applicable right as a self-executing provision: according to the Court, this means that, although it cannot be referred to as a "revocation" of the judicial validation, it is still allowed to submit a judicial request for a review of the foreigner's detention in the center, and in the absence of specific regulatory provisions, it can be enforced through the general procedural tool of the chamber procedure pursuant to Article 737 of the Italian Civil Code and its following articles to obtain a new review of the grounds for detention in light of new or previously unconsidered facts. Therefore, the appeal is admissible.

In the presence of a request for review of the detention, or its extension - which the foreigner has the right to submit at any time, under the provisions of Article 15 of Directive No. 2008/115/EC, a self-executing provision directly applicable in the national legal system, and which can be examined, in the absence of express regulations and considering the need for prompt decision-making, in the form of a summary procedure under Articles 737 of the Civil Code and following, with the guarantees of the right to defense and adversarial proceedings provided by the Constitution and international regulations - the hearing of the parties may be avoided by an adequately reasoned decision, acknowledging the superfluity of the hearing in light of the investigation already carried out, with the necessary provision of a deadline for the submission of written submissions to allow the parties to fully exercise their right to adversarial proceedings.

Directive No. 2008/115 has not yet been implemented into Italian law, and therefore individuals are entitled to invoke the provisions of the directive against the Italian State if these provisions appear, from a substantive point of view, unconditional and sufficiently precise. Articles 15 and 16 of Directive No. 2008/115, which concern the modalities and conditions of detention, are unconditional and sufficiently precise; therefore, they can be directly invoked by individuals against the defaulting State.

In the context of immigration, in application of the provisions of Article 15 of Directive No. 115/2008/EC of the European Parliament and the judgment of the CJEU of April 28, 2011, in case C-61/11, the request for review of the detention order at the CIE (Identification and Expulsion Center) is always allowed, and, in the absence of specific regulatory provisions on the matter, it must be introduced through the chamber procedure under Article 737 of the Italian Civil Code. Therefore, for the principle of concentrating legal protections, the competence must be referred to the judge for validation and extensions, identified as the Justice of the Peace.

It is emphasized that the judge tasked with this review is not bound by the reasons expressed in the appeal, but must verify the existence of the grounds for the legality of the measure. This is because "the procedure for the review of measures restricting personal liberty is ordinarily to be understood as fully devolutive" and such an interpretation is "the only one consistent with the principles established in this regard by Directive 2013/33/EU.

Regarding the procedure for the extension of detention, pursuant to Article 14 of Legislative Decree No. 25 of 2008, the guarantees of the adversarial procedure, consisting of the necessary participation of the defense counsel and the hearing of the person concerned, apply – under penalty of nullity of the decision that nonetheless authorized the extension – without the need for the detained person to request to be heard. (In this case, the Court of Cassation annulled the decision of the regional court which had deemed the participation of the person concerned at the hearing unnecessary, based on a prefectoral declaration regarding the quarantine of the CPR housing units caused by the Covid-19 emergency, erroneously considering that the detainee had to explicitly justify the reasons for their participation in the hearing, which would have led to a different outcome in the proceedings).

Regarding the procedure for the extension of the detention of a foreign national at the CPR, the judge's control over the non-manifest illegality of the expulsion or rejection order, which constitutes the basis for detention, does not mean that the judge, simply because requested by the defense, is required to acquire documents other than those supporting the extension of detention, which the defense, instead, has the duty to produce if deemed useful to demonstrate the alleged illegality of the aforementioned order.

Regarding the expulsion of a foreign national, the justice of the peace, when validating the further extension of detention in a Centre for Repatriation (CPR), is required to check both the grounds for detention and those for administrative expulsion: as a result, if an expulsion order has been issued, pursuant to Article 14, paragraph 5-ter of Legislative Decree No. 286 of 1998, in the absence of evidence of prior detention or a new expulsion order, the validation of the new detention (based on the non-compliance with the removal order within seven days) is to be considered unlawful.

According to the established case law of this Court (from Cass. 4544/2010 and 13767/2010 to Cass. 13117/2011), the interpretation of the decision-making time with regard to the extension renders the observance of the 48 hours completely irrelevant, since, once the request is received, it is the duty of the Justice of the Peace to set the hearing with adversarial proceedings (as imposed interpretatively by this Court with decision 4544/2010) in such a way that the positive decision is made before the expiration of the deadline initially set with the validation (or with the previous extension).

The judicial procedure for deciding on the extension of the foreign national's detention at the identification and deportation center under Article 21, paragraph 2, and Article 28, paragraph 2, Legislative Decree No. 25 of January 28, 2008, must apply the same guarantees of due process, consisting of the mandatory participation of the defense lawyer and the hearing of the person concerned, which are provided by Article 14, Legislative Decree No. 286 of July 25, 1998, interpreted in a constitutionally oriented manner, for the procedure of validating the first period of detention, to which Articles 21 and 28 refer.