Judicial Review on Migrants and Asylum Seekers’ Detention Proceedings in Italy

Guest post by Francesca Asta, PhD in Legal Sciences – Philosophy of Law, University of Roma Tre, Law Department. Francesca is a post-doctoral researcher in Philosophy of Law and a teaching assistant at Philosophy of Law and Legal Clinic on Migration and Asylum classes, at Roma Tre University, Law Department. This is the second instalment of the themed week on assessing border control practices in Italy. 

This post aims at discussing the main results of a wide research project, ‘Observatory on the judicial review on migrants’ rights – l’EXILIUM’, which aimed to examine migrants and asylum seekers’ detention proceedings in Italy. It involved qualitative empirical research on judicial decisions issued by the national competent authorities - the Ordinary Tribunal for asylum seekers and the Justice of the Peace for third-country national citizens.

The Justice of the Peace is an honorary judge introduced into the Italian legal system back in 1991 with law 374/1991, and has jurisdiction over minor civil and criminal matters. The Ordinary Tribunal, instead, is the first instance competent authority for civil and criminal law issues, and it is usually composed by magistrates. Therefore, these two authorities have a divergent jurisprudence over non-nationals’ detention proceedings matters. It is important to note that detention proceedings are the only cases where Italian justices of the peace decide on measures affecting personal liberty. In particular, the institutional configuration of the Justice of the Peace presents some controversial elements in relation to its judicial independence from executive power.

The project started in 2013 under the coordination of the Legal Clinic of Roma Tre on migration and asylum and involved different Italian University departments, that collected and analysed in total, between 2013-2014 and 2015-2016, 1,859 decisions by Justices of the Peace on migrants’ expulsion and detention proceedings. Between 2015 and 2018, I also carried out independent research on the Ordinary Tribunal of Rome case law, analysing 188 detention proceedings regarding asylum seekers detained in the detention centre of Rome, ‘Ponte Galeria’. The ‘Observatory’ was the first study of Justices of the Peace since they were introduced in the Italian judicial system as non-professional judges. These judges have been controversial figures based on two factors; first, their temporary affiliation to the judiciary, since they exercise their function only for a limited time, as opposed to magistrates, and second, their piecework remuneration. These criticisms have led expert observers to define them as ‘precarious judges’, and call into question the level of their independence.

The research findings corroborate the above criticisms. The analysis of the Justice of the Peace hearings minutes shows an extremely summary and superficial proceeding: hearings last in average between 5 and 10 minutes, reports are most of the times reduced to a few lines written on an established form, where each part of the process has a pre-set section. The role of the judge is here reduced to complying with law enforcement agencies, such as the ‘Questura’, as the legal arguments ‘per relationem’ show. This term described the routine practice whereby the Justice of the Peace explicitly mentions the arguments advanced by the ‘Questura’ in the legal reasoning of the motivation, without adding any other element to justify the validation of the detention of the migrant. Indeed, the legal reasoning for validating or rejecting a detention decision is very often limited to a ‘ritual formula’ such as ‘the judge considers the instances advanced by the ‘Questura’ to be founded’- the “per relationem argument” -  or ‘the judge considers the detention requirements to be fulfilled’. In 80-90% of the cases (in some extreme cases like the one of the Office of the Justice of Peace in Turin this raises up to 98%), a detention decision is validated. Furthermore, as a general rule, validation and extension hearings are held inside the detention centres instead of in the offices of the judges. Finally, these results appear to describe a ‘bureaucratic’ proceeding rather than a jurisdictional one: where judges do not use their powers conducting the hearing but exercise their work regardless of who stands before them, as administrative officers usually do.

On the other side, detention proceedings of asylum seekers in front of the Ordinary Tribunal of Rome appear to be different compared what was described above, First, hearings do not take place inside detention centres but in judicial offices. Drawing on the analysis of the hearing minutes, it can be argued that they follow a more detailed and complex process, an example of which is the accurate development of legal arguments. Frequently, the judge conducts a proper interview with asylum seekers on relevant elements, such as residential and working conditions and on their personal stories, in order to evaluate if the international protection’s request is merely instrumental to avoid or delay deportation. The legal reasoning is fully developed in judges’ decisions, with consideration of individual cases. As a result, adjudication outcomes are more balanced: foreign nationals’ detention is not a foregone conclusion, since in approximately 50% of the cases, judges decide to reject the detention request, which affects in particular women from Nigeria. Indeed, from December 2015 to the spring 2019, the male area of the Ponte Galeria detention centre closed following a riot initiated by some migrants. The male section is actually open but protests are still occurring: the last riot has taken place in September 2019, and it brought to the closure of some parts of the detention centre, followed by the liberation of about 40 people. The Ordinary Tribunal of Rome has a settled case-law of granting subsidiary protection to female asylum seekers from Nigeria, because of the severe social context of the country, especially for women, often victims of violence and abuses.

In conclusion, the case-law of the Justice of the Peace differs significantly from that of the Tribunal; one possible explanation for this is the fact that the authorities deal with partially different legal norms since one concerns the detention of irregular migrants and the other concerns the detention of asylum seekers. Nonetheless, this strictly formal explanation is not sufficient to explain the scale of divergence in the case of the two authorities.

The two proceedings are also conducted in a similar manner; that is, a summary procedure without the formalities of a traditional trial, leaving more discretion to the judge conducting the hearing. According to the definition given by Aharon Barak, discretion is the power, awarded to a person with authority, to assess between two or more alternatives, specifying that all of those are lawful (Barak 1989, 17-20). The exercise of discretionary powers is a crucial element that distinguishes the two cases-studies: while the Justice of the Peace does not use its prerogative in the hearings, judges on the Tribunal use the discretionary powers with which they are invested to play a central role when conducting the hearings, and in most cases, the use of these discretionary powers is meant to assure individual rights.

In conclusion, the relationship between branches of government appears to be a crucial factor affecting the adjudications. These two authorities are also differently framed within the legal system: The Justice of the Peace is merely an honorary judge and, as I have pointed out above, there are some controversial elements in its institutional configuration, such as the temporary affiliation to the judiciary and the piecework remuneration, relating to its independence from executive power – a necessary element for the judge to play the role of guarantee in the proceedings – and relating to how effective this independence may be said to be. On the other side, the Ordinary Tribunal of Rome – usually composed of professional judges and competent more generally in civil and criminal matters – has a different attitude towards the ‘Questura’, the qualified administrative authority; the Tribunal, but not the Justice of the Peace, is able to elaborate case-law autonomously and its jurisprudence is overall aimed at protecting individual rights.

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How to cite this blog post (Harvard style) 

Asta, F. (2020). Judicial Review on Migrants and Asylum Seekers’ Detention Proceedings in Italy. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/02/judicial-review(Accessed [date])