Pier Luigi di Bari
Judge, Tribunal of Modena, Italy
In this short presentation, I have tried to select the issues concerning the Italian system which may be of more general interest in relation to the actual implementation of the Return Directive.
The EU Return Directive seeks to strike a proper balance between protecting the rights of third-county nationals (TCNs) subject to return procedures and the effectiveness of returns.
Assuming the basic criterion of the “case by case” assessment in the adoption of return decisions (recital no. 6), in my opinion this balance is sought in expressing a clear preference for voluntary rather than forced return (recital 10) and in providing for the consequent gradualness in the adoption of implementing measures of return decisions (see Article 8(2) of the RD). The principles of proportionality and effectiveness are all affirmed in the use of coercive measures (recital 13), of detention, which is set as an extreme measure (recital 16 and Article 15(1)), of the duration of the re-entry ban – to be determined in accordance with the circumstances of the case (recital 14) – and in the maintenance and duration of detention (Article 15(4) and 15(5)).
In achieving this balance, the role of judges is important as they must ensure the application of the Directive in their national contexts and the effectiveness of legal protection in accordance with the prescribed procedural safeguards.
The principle of gradualness in the different phases of the removal procedure and the priority, with certain exceptions, given to voluntary return in the Return Directive is clearly affirmed in the reasoning of one of the first decisions delivered by the Court of Justice of the European Union on the directive, i.e. its judgment of 28 April 2011 (C-61/11 PPU) in the case known as El Dridi, which concerned Italian legislation.
At the time of that decision, the deadline for transposition set under Article 20 of the Directive had expired without the directive having been transposed into Italy’s national legislation.
The transposing legislation was issued later, in 20111. The judgment in El Dridi remains important as an example of ineffectiveness, in relation to the aims of such a rigid national regulatory system that introduced criminal sentences of detention (having a rather long minimum duration), for the sole reason that the TCN had failed to cooperate with the enforcement of the order to leave the national territory within a very short time period (five days), while the State can still implement the return decisions.
It has to be noted that the request for a preliminary ruling had been referred (alleging the violation of the principle of sincere cooperation and effectiveness in order to achieve the purpose of the Directive) by a professional judge, namely from the Court of Appeal of Trento.
In fact, the quality of the judges, their independence and legal expertise, affect the response of the Court of Justice in the interpretation of EU law, especially in this matter.
Can we say that the approach of the Italian legislation has changed after the implementation of the Directive and thus say that its overall efficacy in relation to its aims has improved?
According to available statistical figures, I can anticipate that this has occurred insufficiently.
The Italian legislation is still characterized by a high prevalence of forced return mechanisms (escort to the border by the police and, if that is impossible, detention in a CIE (Italian Centre for Identification and Expulsion)) as a form of enforcement of the expulsion order. Forced removal is in fact provided in a variety of cases involving illegal entry or illegal stay. Furthermore, the notion of the risk of absconding is very broad (i.e. absence of passport or other equivalent document; absence of appropriate documentation to demonstrate the availability of a place of accommodation etc.).2
The concerned person must request voluntary departure, and if this is not the case (Article 13(5)(1) TUI), the return decision is enforced through escort to the border (Article 13(4)(g) TUI).
If this deadline for voluntary departure has been requested, it is always the case that one or more of the measures envisaged by Article 7(3) Return Directive are applied, i.e. submission of the passport; obligation to stay at a certain place, regular reporting to the police.
These obligations (that restrict personal freedom and are in addition to the guarantee of sufficient financial means) are validated by a judge, in practice by a Justice of the Peace, at the latest within 72 hours. Their violation is a criminal offence and is punishable with a fine (of between €3,000 and €18,000).
The Return Directive instead provides for the possibility (“may be”) to apply these obligations aimed at avoiding the risk of absconding.
In Italy the risk of absconding (of any intensity) precludes the granting of the deadline for voluntary return.
Each expulsion order is issued with an entry ban for a period ranging from three to five years according to the circumstances of the individual case (Article 13(13) and 13(14) TUI).
The ban is set automatically even in cases of voluntary departure, thus in apparent conflict with Article 11(2) of the Directive (“In other cases return decision may be accompanied by an entry ban”).
Such a contrast does not seem to be remedied through the possibility of lifting the ban upon application of the concerned person in case he/she can demonstrate that he/she has left the country.
- Number of acts issued in the domestic return proceedings for ending a stay3
In the national legal system there are formally two acts:
1) the return decision (which includes failure to apply because of legal foreclosure or the denial of the term for voluntary departure) falling within the competence of the Prefect;
The re-entry ban is included in the return decision (the violation is subject to criminal penalties from one to four years in prison).
2) the removal falling within the competence of the Quaestor, which is normally enforced (Article 13(4) TUI), for the reasons explained above, with immediate escort to the border (subject to validation of the Justice of the Peace within 72 hours).
However, there is a close connection (even temporarily) between the two acts, bearing in mind the “ordinary” character of coercive escort to the border (as illustrated before) and subsequent detention in a CIE (always applied by the police and subject to judicial validation) when it is not possible to carry out the expulsion immediately.
Less coercive measures can, however, be applied:
– limited to cases of administrative expulsion for irregular entry and stay and subject to the condition that the concerned person is in possession of a passport or other equivalent document, the Quaestor “may apply” one or more of the measures of submission of the passport, obligation to stay at a certain place and reporting to the police that are put forward, as said above, also in relation to voluntary return (Article 14(1)(a) TUI). However, the national legislation does not mention the criterion by which to exercise the choice between detention and such measures.
Where it is not possible to detain the foreigner in a Centre for Identification and Expulsion, or detention did not allow removal from the national territory, it is provided, as a form of enforcement of the return decision, that the Quaestor can issue an order to leave the country within seven days. The violation of such an order is a criminal offence, punishable with a fine of a high amount (Article 14(5)(a) and (b) TUI as it stands).
And such an order, according to available statistics, is not fulfilled in a very high percentage of cases.
Under the profile of achieving better proportionality in the use of coercive measures, it should be highlighted that in 2014 (Law no. 164/2014) the opportunity was provided to issue (instead of detention) this type of order even when, from the specific circumstances of the case, no reasonable prospect of removal or readmission to the country of origin or provenance appears anymore.
Also more important was the change that has drastically reduced the maximum period of detention in a CIE from 18 (the maximum limit allowed by the Return Directive) to 3 months.
The procedures aimed at identifying the TCN while in prison – for the commission of a criminal offence punishable by imprisonment – have also been strengthened. If detention lasts at least three months it is possible to add, on exit from prison, a period of detention in a CIE for only one further month (and not 18 months as was previously set).
As to the adoption of the acts that put an end to return in one or more steps (see Article 8(2) Return Directive):
There are two acts involved in the procedure, but in practice, and this is usually the case, there is only one step, except in limited accessibility cases in the abstract, and of limited granting in concrete of voluntary departure.
The implementation of the mechanism for the gradual progression of steps and acts of the return process still appears to be insufficient.
Concerning the burdensomeness of the procedure in connection with the plurality of acts which end the stay, the case-law of the Italian Supreme Court should be mentioned. The Court pointed out that, at the time of validation of detention in the CIE, the competent Justice of the Peace only verifies the existence and effectiveness of the underlying expulsion decision and controls the formal lawfulness of detention (i.e. compliance with deadlines and other formal requirements), but they cannot assess the legality of the underlying administrative act of removal which may be ordinarily challenged in different proceedings carried out before the same Justice of the Peace.
Similarly, according to Italian case-law, in the proceedings against return decisions, the Justice of the Peace cannot assess the legality of another underlying administrative act (i.e. the refusal of the application for a residence permit or denial of its renewal) on which the administrative court has jurisdiction.
But recently there has been a ground-breaking change in the Supreme Court’s approach for situations of manifest illegality in underlying administrative acts (decision no. 17407/2014 in the case Shalabayeva)
This position recovered a previous position of the Italian Constitutional Court (judgment no. 105/2001) and another ruling by the same Court of Cassation (see order no. 12609/2014) which had enhanced the notion of “lawful detention” resulting from the European Court of Human Rights (ECtHR) case-law (see ECtHR judgments Hokic and Hrustic v Italy 17/12/2009 (app. no. 3449 2009) and Seferovic v Italy of 02.08.2011 (app. no. 12921 of 2004).
One of the issues with respect to the subject of formal or real character of judicial protection is related to the practical difficulty to resort to the Supreme Court and the type of competent judge at first instance.
Since November 2014, the competent judge for challenges to the expulsion order, as well as for the validation of administrative detention orders, forced escort to the border and application of other coercive measures, is no longer the Tribunal, but rather the Justice of the Peace.
As better illustrated in the national reports of Contention and Redial research projects, it is a non-professional judge, appointed normally among lawyers, paid primarily on the basis of the number of measures drawn up, which has an effective independence level (as well as an average legal expertise) lower than that of professional judges4. Ordinary civil courts are involved only when the return decisions are related to issues of family unity, including the relationship with children aged under 18 (as well as related international protection).
And when they do (as is also demonstrated by the national judgments published in the database of Contention and Redial research projects) the level of real protection on average rises. For instance, important questions for a preliminary ruling are referred to the Court of Justice of the European Union (we have quoted El Dridi, but others include the Celaj case, decided by the CJEU in 2015 on the compatibility with the Return Directive of national legislation which provides for prison sentences in case of breach or a re-entry ban of a TCN already subject to a removal order)5.
The national procedure can be said to be fair (recital no. 6) where there is a provision of legal aid (legal aid at state expense) in cases where the expulsion is challenged or procedures of validation. The presence of an interpreter might also be necessary.
A problem of the effectiveness of legal protection, however, arises in the absence of a defender of trust, in respect to the level of defence ensured by a lawyer appointed by the state (also for the tight deadlines of the validation procedures).
The challenge before the courts has no suspensive effect, except in special cases acknowledged by case-law and in any event not by an express provision of the transposition law referring expressly to the provisions of Article 13(2) Return Directive.
This aspect appears contrary to the stipulation in the Directive.
The combination of these factors helps to explain the limited recourse occurring in practice to the Supreme Court in order to challenge the decisions issued by Justices of the Peace.
The balance between effective protection and effectiveness of enforcement of return decisions is not well made. Both scales do not weigh enough.
In my opinion it can be affirmed that the Italian national system still gives too little weight to considerations of voluntary return as a priority option for enforcing return decisions.
When it does (Article 14 ter TUI), see the IOM report on the implementation in Italy of nine assisted return projects between 2008 and 2013, further to the establishment of the European Return Fund in 20096, the results in terms of effectiveness, also thanks to the economic assistance in the reintegration phase in the country of origin, are very good.
Absolute numbers are still slightly less relevant (2,380 people for the first seven completed projects, of which 1,944 from 2011 to 2013) 7.
But it still does too little compared to the overall number of foreigners concerned by removal processes.
According to available statistical figures on foreigners found in Italy in an irregular situation in 2014 and 20158, only about one-thirtieth were recipients of a formal notice to voluntarily leave the territory (Article 13(5) TUI). And only one third of them complied with the notice in 2014; even less in 2015 (about one quarter).
But the percentage of enforcement of police orders to leave the country within seven days is just over 1% (only 169 cases of compliance out of 14,526 orders) as well as the percentage of coercive accompaniments to the total removed foreigners remains limited (about 15%).
The overall percentage of foreigners actually removed compared with the total found in an irregular situation amounted to about 50% in 2014 and even less in 2015.
But about half (2014), if not more (2015) of the cases of “success” concern border rejections (which remain in the Italian national system outside the scope of the Directive, as is permitted by Article 2(2)(a) Return Directive). And in front of us, in our concrete horizon, there are cases of asylum that both in 2014 and in 2015, in Italy, were well above half of the number of incoming migrants (69,246 out of a total of 114,846 in 2014; 71,016 out of 128,796 in 2015).
1 See law decree of 23.06.2011 no. 89, converted into law 2 August 2011 no. 129, in force since 6.08.2011.↩
2 Because of the requirements to access voluntary departure: possession of a passport or other valid document; documented availability of a place of accommodation; availability of sufficient financial resources (this should always be shown, even if after the term pursuant to Article 13(5)(2) of the Italian law TUI (Testo Unico sull’immigrazione) has been granted).↩
3 According to Articles 6(6) and 8(3) Return Directive.↩
4 As we write in Contention research National Report, the Justice of the Peace is an honorary magistrate to whom judicial duties are temporarily assigned. They hold the office for four years and can be confirmed only once. They are appointed upon resolution of the Judges’ governing body (“Consiglio Superiore della Magistratura”) and the Minister of Justice, at the end of a competition based on qualifications and an internship of six months.
As to their requirements, they do not include a specific preparation or professional experience on the matter, apart from general knowledge of legal issues. In fact, it is not necessary to have years of experience as a lawyer or barrister before undertaking the Giudice di Pace role. They must be between thirty and sixty-five years of age, have a bachelor’s degree in law and have passed the qualifying examination for the legal profession. When they are appointed they must have ceased, or commit to cease before the entry into office, the exercise of any employed public or private activity.
They are tasked with applying the law and are subject to disciplinary liability. But it must be stressed that they do not have an employment relationship with the State and are paid a benefit in relation to the work effectively carried out (hearings held, measures taken) rather than to the amount of time that they spend hearing and deliberating over matters (for every validation of detention, pursuant to Article 14(4) of the Single Text on Immigration (TUI), the Justice of the Peace receives 10 euros and for every hearing 20 euros).
These peculiarities have raised critics. It has been affirmed that “Justices of the Peace are paid on the basis of the number of acts they adopt per day, so that they have a vested interest in issuing many acts, rather than in conducting hearings where the rights of the defence are fully ensured” (Pisa report p. 60).
In addition to their limited knowledge and experience in the application of the law, they are also criticized since they have less authority in comparison to career Judges. Practitioners point out that the fact that their office is temporary and they can be reappointed limits their independence, neutrality and courage in adopting detention measures.↩
5 See the CJEU Judgment issued in case C-290/14.↩
6 The report and the attached statistical tables can be found at: http://www.italy.iom.int/images/pdf/AnalisiReintegrazione.pdf↩
7 In 2011 The Consolidated Text on on immigration was amended to add art. 14-ter (in force since 06/08/2011) which provides for the implementation by the Ministry of the Interior (within the limits of resources available in a special Return Fund established in 2009 and European funds for the purpose) of voluntary and assisted return programs. ↩
8 Source Ministry of the Interior. Department of Public Safety. Central Directorate for Immigration and Border Police.↩