ITALY: Judge questions constitutionality of immigration law
01 November 2000
On 4 November a judge in Milan in an unprecedented action refused to approve the detention of 9 Romanian and Albanian undocumented immigrants into the newly reopened Corelli detention centre. The rulings challenge the constitutionality of Articles 13 and 14 of the 1998 Turco-Napolitano law on immigration. Mrs Rita Errico of the civil section of Milan's court claimed that the detentions would be unconstitutional, based on Article 13 of the Constitution, which does not allow a restriction of personal freedom "without a motivated decision of the judicial authority".
Italian law considers illegal entrance into Italy as a civil, not criminal, offence which carries the penalty of expulsion. The present practice of detaining immigrants for up to 30 days pending their expulsion is deemed a practical solution for law enforcement agencies to identify and administer the sanction. Out of 8,947 immigrants who passed through detention centres in 1999, 773 were released because their arrest resulted from a mistake - 348 were released by judges and 425 by police for "different reasons". Ms Salvato (Rifondazione Comunista), in a parliamentary question, pointed out that 56% of those detained remained in Italy after being detained for the 30-day period. Only 43 of the detained immigrants had been charged with a crime.
Explaining her ruling, which threatens to bring the use of Italy's detention centres to a standstill, judge Errico attacked the practice whereby local police chiefs can decide on the forced expulsion of immigrants. Repubblica quoted from judge Errico's ruling: "The escorted removal of immigrants via the use of public force is a measure which undoubtedly affects personal freedom, understood in terms of a person's autonomy and availability, a freedom which is protected by Article 13 of the Constitution". She also refers to a 1956 sentence by the Corte Costituzionale which established that: "In no case can a person have their freedom limited or denied... if a regular trial is not held for this purpose... without a judicial decision which gives the reasons".
Giorgio Napolitano and Livia Turco, drafters of the law, criticised the decision. Turco inaccurately claimed that the decision "moves us away from Europe", because: "Throughout the rest of Europe the system of administrative expulsions with immediate escort on request from the head of police is in force". Activist Giuliano Acunzoli welcomed the ruling, arguing that the struggle against the Corelli detention centre has hit hard "and some of our arguments clearly reached the judicial level". He was at the forefront in the year-long struggle by social centres and civil rights groups which led to the closure of the detention centre in September. He observed that only two weeks after it was reopened on 1 November, there had been two escapes, one self-inflicted injury, one riot and a hunger strike, as well as newspaper reports of a scurvy epidemic.
In Sicily, a judge in Trapani ordered the release of six Chinese immigrants on 14 November after they were transported to Trieste (Italian-Slovenian border region) to be expelled, because their right to a defence was violated. Cinzia Giambruno, defence attorney in Milan, said that "the right to defence is simply ignored" and that the role of defence attorneys is "a mere formality" in Italian detention centres. She claims that defence lawyers are warned only one day before trials, lack access to their clients (who are denied the time and freedom to collect the necessary documentation) and therefore find themselves having to improvise defence arguments. They sometimes work on a quasi-volunteer basis as they are not guaranteed reimbursement for costs.
In a statement in the Senate, Ms Salvato explained that expulsion measures in "law N.40 of 1998 have, for the first time in Italian legal tradition, introduced the principle according to which a person can have his/her freedom limited as a result of an administrative measure, not a