Case summary

Deciding Body
Tribunal of Turin
Tribunale di Torino
National case details
Date of decision: 04.02.13
Instance: 1st Instance
Case status: Final
Area of law
Migration and asylum

Safeguards for access to justice
Right to an effective remedy before a tribunal
Relevant principles applied
Effectiveness, Proportionality

Identification of the case

National law sources
  • Sec. 21, c. 2 Legislative decree 25/2008, now repealed and replaced by sec. 6.5 of the legislative decree 142/2015)

Summary of the case

Facts of the case

Under national law, detention of an asylum seeker must be validated by a judge. Detention may be renewable. At the time of the decision, this occurred at regular intervals of 30 days each. New provisions extended it to 60 days, up to a maximum of one year. The law does not expressly confer the judge the power to apply a shorter time of detention based on the specific circumstances of the case.

In the case decided by the Tribunal of Torino, the public authorities required the judge to validate a prorogation of detention . However, the defence of the asylum seeker opposed the request on the grounds of his health conditions. The defence produced medical documentations issued by a public health centre attesting the mental disorder of the asylum seeker.

The judge decided to extend the detention for 7 days only, instead of the 30 days period provided at that time by the law. The judge also requested the doctor of the detention centre to produce, within 7 days, a report assessing whether the asylum seeker’s health conditions were compatible with his detention in the centre.

Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied

Judge validated detention for a shorter time than that provided by the law. He also required the competent public authorities to provide a report on the health conditions of the detainee.

Reasoning (legal principles applied)

The judge did not provide a reasoned justification for his decision to prolong detention for a shorter period, than the one provided by the law.

Certainly, although the decision does not mention it, the potential breach of the fundamental right to health of the person concerned has played a major role in the decision-making. This is in line with the Italian Constitutional Court’s case-law stating that the right to health is a core value to be guaranteed to everyone, including the irregular migrants (Constitutional Court Decision no. 252/2001).

Nevertheless, the case is also meaningful with regard to the right to effective remedy. It is important to note that the Italian law governing the prorogation of detention does not provide the detainee the possibility of applying for an autonomous review of the detention. Thus, if the judge had validated the detention as required by the law, the person concerned would not have the possibility to autonomously ask for the reviewing this decision before the deadline provided by the law (30 days at the tome of the decision, now 60).

Moreover, Italian law enables administrative public authorities to apply less coercive measures than detention. However, they seem to be rarely taken in practice. The current case-law shows that judges do not usually replace detention with a less coercive measure on their own motion.  

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

Safeguards for access to justice
  • Right to an effective remedy before a tribunal
Relevant principles applied
  • Effectiveness
  • Proportionality
Principle of effectiveness

The tribunal decision does not mention either Art. 47 CFREU (right to an effective remedy) or other functional national constitutional equivalents (such as Art. 24 of the Italian Constitution – right to defence).

However, the principle of the right to an effective remedy seems to have been implicitly considered in the decision.

Principle of proportionality

The judge applies a proportionality test, balancing, on the one hand, the public interest in making effective the removal procedure and, on the other hand, the fundamental detainee’s right to health. Thus, the Torino decision by imposing on the public authority a duty to assess whether the current health conditions of the detainee were compatible with the facilities offered in the detention center and by validating prorogation of the detention for a shorter time, despite no expressly derogation admitted under the law, have shaped a procedural remedy that grants the individual an adequate effective remedy, at the same time balancing the public interest in ensuring the effectiveness of the removal procedure of irregular migrants.

Case author

Dr. Davide Strazzari, Trento University

Published by Davide Strazzari on 17 January 2018