This document examines the Italian system of criminalizing, detaining, and expelling irregular migrants. It finds that: 1) Only a small percentage (around 1.2%) of irregular migrants are detained each year, and even fewer (around 0.6%) are actually expelled. 2) The detention centers (CIEs) operate with a lack of transparency and their internal regulations and costs are kept secret. 3) The system violates both the Italian Constitution and EU law, by detaining migrants without proper legal justification and by using detention and expulsion as a first resort rather than a last option.

1. The international human rights
legitimacy of the Italian
criminalization
and detention system
MPC – Migration Policy Centre
Florence, 3 October 2012
Alberto di Martino
Professor - Criminal Law
Scuola Superiore Sant’Anna, Pisa

2. Aim of the project
• To examine the Italian legislation on criminalization,
detention and expulsion of irregular migrants in the light of
international, EU and constitutional law
• To examine the practice of Italian authorities in the light of
existing legislation
• To gather data on the detention and expulsion of irregular
immigrants.
The international human rights legitimacy of the Italian system

3. Focus
• Use of detention in the Centers for Identification and
Expulsion (CIEs)
• Conditions of detention in the CIEs
• Use of forcible expulsion as the ordinary means to deal
with irregular immigration, in violation of EU law (Returns
Directive)
• Problem: forcible expulsion can violate basic human rights
and is the less efficient means to deal with irregular
immigration (see IOM)
The international human rights legitimacy of the Italian system

4. Main findings
• Estimates on the number of irregular immigrants present
in Italy in 2010, compared with data on the CIEs, show
that:
- Only around 1.2 % of all irregular immigrants were detained
in a CIE in the course of the year
- Only around 0.6 % of the total were effectively expelled
- The same is confirmed by Ministerial data on the number of
expulsions
The international human rights legitimacy of the Italian system

5. Data from 2009 to June 2011
The international human rights legitimacy of the Italian system

6. CIEs: data and cost
• The data on the CIEs are kept secret (including their
internal regulations)
• The CIEs are not open to visits and there is no formal
procedure to appeal decisions denying requests to visit
them
• The data on the costs are kept secret
• But data included in legislative reports and Court of
Auditors reports show an average cost of 55 € per
person, per day of detention.
The international human rights legitimacy of the Italian system

7. Issues of constitutional law
• The whole system of detention in CIEs violates Art. 13 of
the Italian Constitution (protection of personal freedom)
• According to the Constitution, deprivation of liberty must
be foreseen by law – both cases and manner
• There is no law detailing the rules of detention in the CIEs
The international human rights legitimacy of the Italian system

8. Consequences
• Violation of Article 13 of the Constitution
• Violation of the principle of equality: immigrants detained
in different CIEs have “committed” the same acts, but
are treated differently (there’s no general national law)
• Immigrants detained in CIEs are subjected to worse
treatment than criminal detainees.
• Complete lack of transparency and openness regarding
the CIEs (democratic principle)
The international human rights legitimacy of the Italian system

9. Issues of EU Law (1)
• Violation of the Returns Directive:
• Detention is used as a measure of first resort
• Alternative measures are never applied – the authorities
do not know about them
• Voluntary expulsion is exceptional
The international human rights legitimacy of the Italian system

10. Issues of EU Law (2)
• Detention lasts longer than necessary
- Case: when immigrants are imprisoned for criminal
offences, they are not subjected to a procedure in order to
identify them
- Consequence: detention in the CIE always follows criminal
detention
The international human rights legitimacy of the Italian system

11. Criminalizing immigration and EU law (1)
• The crime of irregular immigration is punished
with a fine expulsion
• This expulsion does not follow the procedures of the
Returns Directive
• It does not guarantee even the (minimal) rights granted by
EU law
• It violates the principle of sincere cooperation
The international human rights legitimacy of the Italian system

12. Criminalizing immigration and EU law (2)
• No protection is offered to persons who, according to the
Court of Justice of the EU, should be released from
detention – e.g. stateless, persons who clearly cannot be
expelled, etc. [Kadzoev]
The international human rights legitimacy of the Italian system

13. Criminalizing immigration and international
law
• Insufficient protection to victims of human trafficking:
problems of identification and information about their right
to a permit
• No protection to victims of smuggling: violation of the
Protocol on smuggling of the UN Convention on
Transnational Organized Crime
The international human rights legitimacy of the Italian system

14. What can be done?
• Judges (upon lawyers’ request, or on their own initiative)
can:
- Refer the system of detention to the Constitutional law –
under Articles 3 and 13
- Stop applying rules that do not comply with EU law
- If in doubt, refer cases to the CJEU
• The general public must be made aware of how public
money is spent
The international human rights legitimacy of the Italian system

15. Thank you for the attention
The international human rights
legitimacy of the Italian
criminalization
and detention system
Alberto di Martino
a.dimartino@sssup.it
Francesca Biondi Dal Monte, PhD
Ilaria Boiano, PhD candidate
Rosa Raffaelli, PhD, LLM N.Y.U.