The data obtained from competent authorities
In recent years there has been a general diffusion of the use of detention of foreign nationals: the Italian legislator has recently regulated an expansion of the places of detention of foreign citizens subjected to an expulsion order. Article. 4 (containing “Provisions on procedures to implement expulsion orders”) of Law no. 132/2018 modifies the text of art. 13, co. 5-bis, Legislative Decree 268/1998. The new paragraph provides for the possibility of detaining foreign citizens pending validation of forced expulsion in facilities at the disposal of security authorities other than detention centers. This can only happen when there is no availability of places within the pre-removal centres (CPR). If, even after the validation hearing, places remain unavailable, the judge can authorize the stay, “in suitable premises at the border office concerned, until the removal is carried out and, in any case, no later than forty-eight hours following at the validation hearing. “
This regulation was widely criticized by ASGI following the entry into force of the so-called Security decree. This hypothesis contains significant profiles of constitutional illegitimacy – firstly with respect to art. 13 Const. – not being specified the methods of detention and the relative eligibility criterion of these places, the assessment of which is entrusted exclusively to the discretion of the public security authorities.
Considerable concerns are related to material conditions and effective possibility for detainees to contact independent legal advisors and to communicate with them in appropriate confidentiality conditions, prerequisites necessary for the full exercise of the right of defense.
In fact, this provision entails the possibility of detaining foreign citizens in border areas pending removal for a maximum of six days in premises or facilities not previously identified. There is a significant risk that these places will be inaccessible to civil society or guarantee bodies.
The National Ombudsperson for the rights of persons detained or deprived of personal liberty, in the report presented to Parliament on March 27 2019, invited political and administrative authorities to make public the complete list of “suitable premises” and to ensure full access to all national and international control bodies with supervisory tasks.
In order to obtain more information in relation to the state of implementation of the provision introduced in art. 13. co. 5-bis of Legislative Decree 286/98, ASGI, in the framework of the project In Limine, sent a request to access the documents relating to detentions of foreign nationals in Rome-Fiumicino airport’s Border Office.
The Fiumicino Air Border Police Office replied that suitable premises for detention have not yet been identified. It is therefore clear that the detention of foreign citizens waiting for removal has not yet been implemented. However, the authorities are working on the construction of a temporary detention area at gate 1 of Rome Fiumicino airport. This will lead to a serious expansion of the places of detention.
It is therefore even more important to evaluate how these new forms of detention will be implemented. It will be essential to do this from the very first applications. The moment when new legislation will be translated into practice for the first time appears crucial: the procedures will take shape and a timely intervention can prevent inconsistent practices from crystallizing. This first application moment is, in this case, even more relevant since the fundamental right to personal freedom is at stake.
The response of the Fiumicino Air Border Police Office can be viewed and downloaded at the following link.