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Italian bail for asylum seekers to avoid detention violates EU law (Catania Court, 29/9/23)

29 September 2023, Catania Court

The bail required by the Italian government from asylum seekers from so-called safe countries to avoid detention in a CPR is contrary to European law and should therefore be disapplied. 

(automatic non official translation)

R.G. 10460/ 2023

The judge designated for validation, Dr. IA:

Having regard to the request for validation of the detention order issued pursuant to Article 6 bis of Legislative Decree 142/2015 by the Questore of the Province of Ragusa, notified to the person concerned on 09/27/2023, at 11:30 p.m., against: MH, born in TUNISIA, on **/1992 , Tunisian citizen who entered the territory of the State on September 20, 2023 from the Lampedusa border,

Noted and considered:

that the order was transmitted to this Court on September 28, 2023, at 00.15 hours, by PEC protocol Court;

that the terms of art. 14 of Legislative Decree 286/98, co. 1 bis, recalled by art. 6, co. 5, of Legislative Decree 142/2015 have been observed;

that the order by which the Questore ordered the detention bears the indication that the applicant has the right to submit in person or through a defender pleadings or deductions to the court seat of the specialized section on immigration, international protection and free movement of citizens of the European Union competent to validate; that the said order was communicated to the applicant in Arabic

that the detention was ordered because the person concerned, coming from a country designated as a safe country of origin in accordance with Article 2 bis of Legislative Decree 20/05/2008, submitted, on 27/9/2023, the application for recognition of international protection in the transit zone of the province of Ragusa referred to in Article 28 bis, co. 4, Legislative Decree 25/2008, as part of the procedure referred to in Article 28 bis paragraphs two lett. b) and b-bis) of Legislative Decree 25/2008;

the same, moreover, did not hand over a valid passport or other equivalent document and did not provide a financial guarantee in accordance with the provisions of the Decree of the Minister of the Interior, in consultation with the Minister of Justice and the Minister of Economy and Finance, dated September 14, 2023, indicating the amount and manner of provision of the financial guarantee to be borne by the foreigner during the conduct of the procedure for ascertaining the right to enter the territory of the State;

Noted that no briefs were submitted;

Considered that the asylum seeker, heard at today's hearing, which took place by means of an audiovisual link between the hearing room and the center in which he is detained, stated that he had arrived in Lampedusa, on 20.09.2023, by a boat that entered the port directly, and that, after Lampedusa, he had been taken to another place, the name of which he could not specify, and then to Pozzallo;

added that he had sought international protection in Pozzallo because he was persecuted for physical characteristics that gold diggers in his country, according to local beliefs, consider favorable in carrying out their activities (particular hand lines, etc.) and that he was undocumented because, in fleeing, he had not been able to take them from his home;

Highlighted: that, during the hearing, the Vice Questore specified, on the basis of the acts in his possession, that the applicant had actually arrived in Lampedusa on September 20, following rescue operations by the G.F., that he had been transferred to Palermo and that, on 09/27/2023, he had been taken to Pozzallo, manifesting on the same date his desire to seek protection; he also specified that the applicant had already been the recipient of an expulsion order in the past;

Hearing the defense, which opposed the validation;


- that the applicant cannot be detained for the sole purpose of examining his application (Art. 6, co. 1 Legislative Decree 142/2015; Art. 8 of Directive 2013/33/EU);

- that detention must be considered an exceptional measure limiting personal freedom pursuant to Article 13 of the Constitution;

Held: that the Court of Justice of the European Union - Grand Chamber- in its judgment of November 8, 2022 (Joined Cases C-704/20 and C-39/21), clarified that "Article 15(2) and (3) of Directive 2008/115/EC of the European Parliament and of the Council of December 16, 2008, on common standards and procedures in Member States for returning illegally staying third-country nationals, Article 9(3) and (5) of Directive 2013/33/EU of the European Parliament and of the Council of June 26, 2013, laying down standards for the reception of applicants for international protection, and Article 28(4) of Regulation (EU) No. 604/2013 of the European Parliament and of the Council of June 26, 2013, establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted to mean that the review by a judicial authority of compliance with the prerequisites of lawfulness, derived from Union law, of the detention of a third-country national must lead that authority to find, of its own motion, on the basis of the elements of the file brought to its knowledge, as supplemented or clarified during the adversarial proceedings before it, that there has been any failure to comply with a prerequisite of lawfulness not relied on by the person concerned."

that Articles 8 and 9 of Directive 2013/33/EU "must be interpreted as precluding, firstly, the detention of an applicant for international protection solely on the grounds that he or she cannot meet his or her own needs, and secondly, that such detention should take place without the prior adoption of a reasoned decision ordering the detention and without the necessity and proportionality of such a measure having been examined" (CJEU (Grand Chamber), May 14, 2020, Joined Cases C-924/19 PPU and C-925/19 PPU);

Held that domestic legislation that is incompatible with that of the Union must be disapplied by the national court ( Constitutional Court, July 11, 1989, No. 389);

Held that the order of the Questore is not accompanied by adequate reasons;

Observed, indeed, that it lacks any assessment on an individual basis of the protection needs manifested, as well as of the necessity and proportionality of the measure in relation to the possibility of applying less coercive measures; Held that art. 6 - bis of Legislative Decree 142/2015 provides for a financial guarantee that is not configured as an alternative measure to detention but as an administrative requirement imposed on the applicant before recognizing the rights conferred by Directive 2013/33/EU, for the sole fact that he/she seeks international protection;

Considered, moreover, that the Ministerial Decree. September 14, 2023, by providing that the financial guarantee is appropriate when the amount fixed can guarantee to the foreigner, for the maximum period of detention, equal to four weeks (twenty-eight days), the availability of adequate accommodation in the national territory, the sum needed for repatriation and minimum necessary means of subsistence, determining in 4938, 00 euros the amount for the provision of the financial guarantee for the year 2023, to be paid in one lump sum by means of a bank guarantee or insurance surety policy, and precluding the possibility of it being paid by third parties, is not compatible with Articles 8 and 9 of Directive 2013/33, as interpreted by the Court of Justice in the above judgment;

Further held that, in the present case, the applicant entered Italian territory on 20.09.2023 from the Lampedusa border and was then taken to Pozzallo, where on September 27, 2023, he applied for international protection following which he was ordered to be detained;

Whereas: according to recital 38 of Directive 32/2013UE "Many applications for international protection are made at the border or transit zones of the Member State before a decision on the applicant's admission is taken. Member States should be able to provide procedures for the examination of admissibility and/or merits, which allow applications to be decided on the spot in well-defined circumstances." according to Art. 43 of the same directive, headed Border Procedures, Member States "may provide for procedures, in accordance with the basic principles and safeguards set out in Chapter II, for deciding at the border or transit zones of the Member State: a) on the admissibility of an application, within the meaning of Article 33, lodged there; b) on the merits of an application under a procedure pursuant to Article 31(8). 2. Member States shall ensure that the decision under the procedures referred to in paragraph 1 is made within a reasonable time. If the decision has not been made within a period of four weeks, the applicant shall be admitted to the territory of the Member State in order for his or her application to be processed in accordance with the other provisions of this Directive. 3. In cases where arrivals involving large numbers of third-country nationals or stateless persons making applications for international protection at the border or in a transit zone make it impossible in practice to apply the provisions of paragraph 1 there, those procedures may also be applied in places and for the period during which the third-country nationals or stateless persons in question are normally received in the immediate vicinity of the border or transit zone";.

that the directive does not therefore authorize, except in the cases referred to in paragraph 3 of Article 43, the application of the procedure at the border, a prerequisite, in the present case, of the measure of detention, in an area, other than that of entry, where the applicant has been forcibly taken in the absence of previous coercive measures;

Held that, pursuant to Art. 43(1) of Directive 2013/32, a detention based on the provision of point (c) of the first subparagraph of Article 8(3) of Directive 33/2013/EU is justified only for the purpose of enabling the Member State concerned to consider, before granting the applicant for international protection the right to enter its territory whether his or her application is inadmissible, in accordance with Article 33 of Directive 2013/32, or whether it should not be rejected as unfounded on one of the grounds listed in Article 31(8) of that Directive, and this in order to ensure the effectiveness of the procedures provided for in that Article 43;

Held, therefore, that the President of the competent Territorial Commission must have taken a decision, lacking in the present case, regarding the procedure to be followed in order for it to be legitimately placed as the basis for a detention order; Held, finally, that lett. c) of art. 8 of Directive 2013/33/EU does not apply in cases of rescue at sea, in which the right of entry into the territory derives from domestic and international law (art. 10 ter D. Lgs 286/98; point 3.1.9 of the 1979 International Convention on Search and Rescue at Sea, as amended in 2004, following the May 20, 2004 resolution of the IMO Maritime Safety Committee);

held that Article 8(c) of Directive 2013/33/EU should in any case be interpreted in accordance with the principle enshrined in Article 10, para. 3, Const. in the meaning clarified by the SS. UU. in Judgment no. 4674 of May 26, 1997; in light of the constitutional principle established by that article, it must in fact be ruled out that the mere fact that the asylum seeker comes from a safe country of origin can automatically deprive the said applicant of the right to enter Italian territory to request international protection;

Held that, in view of the foregoing considerations, the conditions for detaining the asylum seeker do not exist;


Does not validate the order ordering the detention, issued by the Questore of the Province of Ragusa on 09/28/2023 against MH, born in Tunisia on 06/30/1992. Orders the immediate release of the aforementioned. Sends to the Clerk's Office for the fulfillment of its duties.

Catania, 29/09/2023 Judge IA