Migrants: 5,000 euro “bail” to avoid CPR. Some suspicion of unconstitutionality
With an implementing decree of 14 September, published yesterday morning in the Official Journal, the Ministry of the Interior set the «financial guarantee», already foreseen by the “Cutro” decreewhich must be provided to avoid detention in a repatriation detention center (CPR) by asylum seekers coming from safe countries or stopped at the border after having evaded border controls, as well as by non-EU citizens who have challenged and requested the suspension of a denial provision issued following requests for international protection deemed inadmissible, manifestly unfounded or merely dilatory, or presented by subjects found in an irregular situation on Italian territory or – again – hosted in crisis points following a rescue at sea.
News that earned the Government rhetorical accusations of «State smuggling» by whom (not intending to attribute to the expression – hopefully – the meaning it had in Ancient Persia) probably forgets that bail to avoid preventive detention – far from being considered in the rest of the world a «tangent” or “protection payment» governmental – it is a legal institution that has already been handled for centuries by the very civilized Anglo-Saxons (who, at most, were once pirates).
Not everything that is innate in the Anglo-American legal universe, however, is also welcome by the Italian Constitution and continental supranational norms. Therefore, our legal memory and, in particular, constitutional jurisprudence require us to ask ourselves: will the “bail” for asylum seekers stand up to the constitutional scrutiny to which it will probably be subjected to very strict scrutiny?
The Constitutional Court has never looked favorably on the request for a guarantee, i.e. the deposit of a sum of money, as a condition for the exercise of the fundamental right to appeal against the measures of the administrative authority.
In 2004, the Council declared unconstitutional a rule, introduced the year before in the Highway Code, which required anyone wishing to challenge a traffic fine before the justice of the peace to pay, under penalty of inadmissibility of the appeal, «a sum equal to half the maximum statutory sanction imposed by the investigating body».
Of course: the issue of “fines” for motorists may appear to be a much more petty matter than the treatment of refugees (or self-proclaimed refugees). Studying the law, however, means abstracting the principles and the principle stated by the Court on that occasion was very clear: the right to take legal action for the protection of one’s interests «is inviolable and must be implemented equally for everyone, regardless of any difference in personal and social conditions”.
According to the Council, rules which “impose certain burdens (including economic ones)” are always to be considered unconstitutional. against those who intend to take legal action for the defense of their rights, when such economic requests have the effect «to preclude or seriously hinder the experiment of judicial protection» for purposes «outsiders with the aim of ensuring that the process is carried out in accordance with its function». Principle already affirmed in the past by constitutional judges to cancel, from our legal system, the rules that required the payment of the tax as a condition for challenging the act with which the tax authorities requested payment, even if illegitimate, and those that required prior payment of the registration tax for the issue of an enforceable copy of civil sentences.
This jurisprudence hangs like the sword of Damocles, especially on the third hypothesis of bail provided by the government: that requested from the non-EU citizen who challenges and requests the temporary suspension of a measure of revocation or termination of international protection, to avoid temporary detention at a CPR pending the decision on the suspension request. Also because, in the case of «undue removal of the asylum seeker», the prefect should enforce the financial guarantee and allocate it «to state budgets», therefore for purposes totally alien to those for which the guarantee should be provided.
It will be said: in the cases decided by the Consulta, the payment of the deposit was a condition for taking legal action, the “Cutro” decree and the implementing decree published yesterday morning, however, do not require the provision of the “financial guarantee” as a condition for challenging or requesting the suspension of provisions denying international protection, but only as a condition for not ending up in a repatriation center while waiting for the judge to decide on the request for suspension of the contested provision. True: in fact it is not certain that the hanging sword will slip from its hair and pierce the legislative innovation, also considering that the cases in which bail is required are particular cases.
It is also true, however, that – at least when it wants – the Constitutional Court does not go too far (legally) and the deprivation of personal freedom and freedom of movement resulting from imprisonment in a repatriation center constitutes a concrete obstacle to the exercise of right of defense, due to the limitations and greater difficulties in preparing the defensive strategy that derive from it.
Opposition criticism and community law
The criticisms of the measure coming from the opposition are more drastic and supranational in scope. The radical Riccardo Magi argued that a “ruling of the European Court of Justice in 2020 has already sanctioned a similar measure introduced by Hungary”, while, in an interview with the Huffington Post, the president of the Italian Solidarity Consortium, Gianfranco Schiavone, even believes that a ruling of 14 May 2020 pronounced by the European Court of Human Rights (a body other than the Court of Justice) , again against Hungary, will allow Italian judges to disapply the new rule.
The ruling of the European Court of Human Rights cited by Schiavone does not deal in any passage with provisions of Hungarian law which provide for the payment of a financial guarantee by asylum seekers; the same goes for the only ruling made in 2020 by the European Court of Justice against Hungary’s treatment of migrants that we could find. Both rulings condemned the Hungarian state for the methods of treatment of migrants in some territories on the border with Serbia and for the policy of rejections towards the latter state.
Indeed, reading European law more carefully, Magi and Schiavone’s concerns appear legally unfounded. It is the same Directive no. 33/2013, approved by the then majority smuggler of the European Parliament and also cited in the sentence mentioned by Schiavone, to establish that, as an alternative measure to the detention of asylum seekers in special centres, member states may provide for “the establishment of financial guarantees”.
So will it be possible to sleep (at least a few) peacefully on the main floor of the Interior Ministry due to the certain compatibility of the new rules with supranational law? No.
Italian jurists and legislators are free to call the stay of asylum seekers at the CPR “detention” but in Strasbourg, and also in Luxembourg, the aim is “to the essential»: that type of regime is considered custodial (the Khlaifia v. Italy ruling says so) and then the “financial guarantee” included in the Cutro decree is freedom on bail. The consequence is very simple: in at least three sentences (Gafà v. Malta, Hristova v. Bulgaria and Toshev v. Bulgaria), the jurisprudence of the ECtHR has decided that «the amount established for bail must take into account the means available to the accused and his ability to pay». Even if we want to round down the 4,938 euros that the prefects should collect from Guineans, Ivorians and Tunisians, it is difficult for a rule like the one we have had since yesterday in Italy, imposing the payment of such a high fixed amount and being devoid of mechanisms adaptation to the specific case, is compatible with the principles of community jurisprudence.
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