Legal Database

The extension of the detention of a foreign national at a repatriation center (C.P.R.) is unlawful if it is ordered based on a request made after the expiration of the initial, or extended, term of the restrictive measure. In such a case, even if the decision that initially validated the restrictive measure was not timely challenged by the recipient, the extension order must be overturned without referral, resulting in the cessation of the detention.

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.

The judicial measure for the extension of the detention of a foreign national at an identification and deportation center, as provided by Article 14, paragraph 5, Legislative Decree No. 286 of 1998, can only be issued following a summary proceeding characterized by the hearing of the person concerned and the mandatory participation of the defense lawyer. To this end, the request for extension and the accompanying documents must be received by the office of the justice of the peace in time so that, after convening the person concerned and the defense lawyer, a chamber hearing can be held, and a reasoned decree can be issued within forty-eight hours of receiving the request, in accordance with paragraph four of Article 14, as cited, but before the expiration of the deadline initially set with the validation.

The judicial procedure for deciding on the request for an extension of detention at a Temporary Immigration Detention Center for a foreigner, already subject to this measure for the first time period required by law, must follow the same guarantees of due process. These include the mandatory participation of a defense lawyer and the hearing of the interested party, as explicitly provided in Article 14, paragraph 4, of Legislative Decree no. 286 of 1998, for the validation of the first detention period. This application is extended by a constitutionally-oriented interpretation of the subsequent paragraph 5, concerning the extension, since an opposite reading would conflict with Articles 3 and 24 of the Constitution.

The decision of the Court of Milan stands out because the solution adopted results from the direct and immediate application of Article 40 of the Directive, which is therefore considered a self-executing provision. [This is because the rule seems to assign the competence to decide on the admissibility of the application to an entity other than those provided by Articles 3 and 4 of Legislative Decree 25/08, except in the specific cases outlined in Article 4, paragraph 2, letters a) and b) of Directive 32/2013].

The detention of the international protection applicant (even if it is a repeated application) must be validated by the ordinary court. The procedure outlined in the new version of Article 29-bis of Legislative Decree 25/08 does not exclude the application of Article 6 of Legislative Decree No. 142/15, according to which the detention of an international protection applicant (even if it is a repeated application) must be validated by the ordinary court (paragraph 5, last sentence). This provision has not been modified due to the introduction of the so-called security decree and the conversion law No. 132/18.

The failure of the appointed defense lawyer to participate in the procedure for the validation of the detention measure at a temporary detention center, adopted by the Police Chief, due to the lack of notification to the lawyer of the date set for the relevant hearing, cannot be remedied by any other equivalent act, such as the presence of the lawyer designated by the Justice of the Peace in the hearing. This is because, according to Article 14, paragraph 4, of Legislative Decree No. 25/2008, the provisions of the sixth and seventh sentences of paragraph 8 of the previous Article 13 apply to the validation hearing of the detention measure. It is explicitly stated that only if the foreign national is without a defense lawyer will one be appointed ex officio.

In immigration matters, the appointment of a trusted defense lawyer before the hearing for the validation of the expulsion detention measure of a foreign national makes the lawyer's participation necessary. Consequently, the exact details of the place and time of the hearing must be clearly specified and communicated to the lawyer. (In this case, the Court of Cassation annulled the decision of the Justice of the Peace, and deciding on the merits, it annulled the detention measure, since the hearing had been held without the lawyer despite the timely appointment, due to the delayed communication of the appointment to the Justice of the Peace’s court office by the detention center.)

In the case of the procedure for the validation of the detention of a foreign national in the identification and expulsion center, pursuant to Article 14 of Legislative Decree No. 25/2008, the guarantees of due process, consisting of the necessary participation of the defense counsel and the hearing of the interested party in said procedure, apply regardless of the request by the individual to be heard. Therefore, the individual must be notified of the date of the validation hearing for the measure, and this cannot be substituted by the mere informal oral notice provided or the statement made in court by the opposing party. Additionally, in the absence of notification, there cannot be a valid and informed waiver of the individual's participation in the hearing, which, as a procedural act, must be documented and/or written down.