Italy, Tribunal of Turin, 25 May 2016

Identification of the case

• Legislative decree 142/2015

• directive 2013/33

Summary of the case

An Afghani national fled Afghanistan and arrived in UK at the age of 15, claiming international protection. At the majority age, however, the UK public authorities denied the international protection’s claim and expelled him. He decided to move towards Italy, with the intention to apply again for international protection. At the French-Italian border, he was intercepted by the Italian authorities and charged with a crime. Because of that, he was placed in custody, but following further inquiries, he was cleared of any charge. However, Italian authorities issued an order to leave, followed by a detention order, on the ground of risk of absconding. Detention was validated by a lay judge on 27 November 2015, and then prolonged first on 23 December 2015 and then on 23 January 2016.

On 1st February 2016, the Afghani national presented a request for international protection. Under Italian law, the jurisdiction in case of detention of an asylum seeker is vested in ordinary judges and not lay-judge (giudice di pace), the later has jurisdiction only on irregular migrants’ detention.

The detention decision had been validated by the ordinary judge first on 3 February 2016 and further prolonged after 60 days. In the meantime, Italian public authorities had started the Dublin procedure for determining the EU Member State responsible for examining the asylum application.

Italian law does not provide the detainee asylum seeker locus standi to bring action before a court so as to review detention or prorogation decisions. Initial detention is for 60 days and must be validated ex officio by the ordinary judge. After this period, a prolongation may be ordered for 60 more days subject to an ex officio review conducted by an ordinary judge. The maximum period of detention for asylum seeker is one year.

On 13 April 2016, the Afghani national brought an action before the ordinary judge for the review of his detention.

The Tribunal of Turin considered legitimate the action and, on the merits, it quashed the detention decision.

• Civil judicial enforcement

The individual is allowed to bring an action to review prorogation detention although the Italian legal system provides only ex officio review to be carried out at regular periods of 60 days

The Tribunal started its reasoning by noting that according to Article 9 (5) Directive 2013/33 (Reception Conditions for asylum seekers) “detention shall be reviewed by a judicial authority at reasonable intervals of time, ex officio and/or at the request of the applicant concerned, in particular whenever it is of a prolonged duration, relevant circumstances arise or new information becomes available which may affect the lawfulness of detention”.

According to the judge, Article 9(5) of 2013/33 Directive does not have direct effect, since it left to the Member States discretion to decide on the mechanism of detention review. Notably, after the initial judicial review of detention, the Member States can decide whether the judicial review of the prolongation of detention can be done ex officio or following an individual application.

The Italian legislator chose the first option: ex officio judicial review.

However, the Tribunal interprets extensively the Italian statutory provisions in light of the objective of Article 9(5) Reception Conditions Directive. Although admitting the procedural discretion permitted by the EU secondary provision, the judge emphasised that the objective of the Directive provision, which is to allow the detained asylum seeker to have an effective and concrete possibility to address a judge for the purpose of presenting new information or circumstances which may affect the lawfulness of the detention.

This extensive reading of the locus standi provisions of Italian law is particularly needed in a case, as that before the Court, where the detention is grounded on the difficulties arising in the determination of the responsible Member State according to Dublin III rules, which do not result from the conduct of the asylum seeker.

Allowing the detained asylum seeker to access the court in order to challenge the ongoing detention might permit the administrative authorities to know elements that can allow a faster conclusion of the Dublin procedure.

Role of the Charter and role of the general principles on enforcement

• Right to access a court
• Right to an effective remedy before a tribunal

• Effectiveness

The Tribunal’s decision neither mentioned Article 47 of the Charter (right to an effective remedy) nor other functional national constitutional equivalents (such as Article 24 of the Italian Constitution – right of defence).

However, the right to an effective remedy is the core of the court reasoning. The Tribunal recalled that the detainee must have the possibility to access a court and to have an effective legal remedy, which, in casu, means to bring a direct complaint before the court, permitting the detained asylum seeker to present new elements for reviewing the legitimacy of the prolongation of the detention measure.

Additional notes on the decision

Other Italian courts admitted the detainee asylum seeker could bring a direct action to challenge the prorogation of detention. They did so assuming that Article 9, sec. 5 of Directive 2013/33 is a provision with direct effect. The Tribunal of Turin has explicitly rejected this possibility. After the Tribunal of Turin decision, the Court of Cassation admitted the possibility for the detainee to bring an autonomous action against detention (see decision n. 22932/2017). The case concerned the detention of an irregular migrant under the Return Directive. The Court of Cassation relied on the direct effect of Art. 15 of the Return Directive and quoted the El Dridi judgment of the CJUE for the purpose of highlighting that detention should be as short as possible. The reasoning of the Cassation Court could be applied by analogy to detention of asylum seekers.

Up to now, detention centers in Italy were not spread in the national territory, but they were located in few Regions. As a consequence, decisions were issued by few Tribunals. However, the recent Law Decree 13/2017, converted into law 46/2017, provides for the creation of new detention centers, to be located in every Region. This probably will entail an increase in the number of judicial application and the emergence of more stable line of cases.