Italy, Court of Cassation, 6th - 1 Civil Section, 5 June 2014 12609/2014

Identification of the case

• Legislative Decree n. 286/1998 (Consolidated Test on Immigration)

Summary of the case

Under Italian law, the return/expulsion decision and the removal order are two distinct acts although they are strongly connected.

The removal order is mostly enforced though escort to the border but in case this is not immediately possible and there is a risk of absconding, the person concerned is detained.

The return/expulsion decision is challengeable before a lay judge (Giudice di pace) within a time limit of 30 days. When the removal order is enforced through escort to the border and/or detention, it entails a restriction on personal freedom and thus according to art. 13 of the Italian Constitution it is subject to an ex lege validation before the Giudice di Pace.

According to the previous and consolidated case-law of the Supreme Court, when the Giudice di Pace exerts its validation control on a detention order, there are limits on his ability to review the merits of the expulsion order: the Giudice di Pace should merely assess the existence and effectiveness of the underlying expulsion order.

The case here annotated concerns an irregular migrant that was kept under detention in view of enforcing his expulsion decision. The detention order was validated by the Giudice di pace. The recurrent appealed before the Supreme Court claiming that the validation control exerted by the first instance judge was contrary to art. 5.1.f and art. 13 of the ECHR since the judicial review limited to formal checks.

The Supreme Court took the opportunity to partially review its previous and consolidated case-law. It interpreted national law consistently with ECtHR’ decisions rendered with regard to art. 5.1 f. ECHR and it further refers to art. 13 of the ECHR. It held that when validating pre-removal detention, a first instance judge should be able to assess the manifest unlawfulness of the expulsion order.

• Civil judicial enforcement

The Supreme Court highlights that according to the ECtHR case-law on art 5.1.f of the ECHR a judge when validating a detention decision concerning an irregular migrant should be able to assess the validity of the pre-existing expulsion order in case this is manifestly illegitimate. Thus, when validating detention or forced removal of an irregular migrant, the Giudice di Pace must not limit to simply verify the existence and effectiveness of the administrative expulsion order but ho should assess, incidentally, the manifest illegitimacy of it, even if this decision has not been challenged within the 30 days time-limit.

The Cassation Court also referred to the right to an effective remedy according to art 13 of the ECHR in order to change its previous case-law.

Among the situations that enable the judge to quash the detention order on the ground of the manifest illegitimacy of the pre-existing expulsion order, the Cassation Court refers to previous decision of the ECtHR rendered against Italy. In Seferovic c. Italia (8th February 2011) and Hokic and Hrustic c. Italia (1st December 2009,) the ECtHR explicitly consider that a situation of “manifest illegitimacy” of the expulsion order occurs in the cases enumerated by art. 19 of the Italian 1998 Immigration Act. This provision lists the case where an alien cannot be expelled. The first paragraph that in no case an alien can be expelled or rejected toward a State in which he can be object of persecution due to race, gender, language, citizenship, religion, political opinions, personal or social conditions, or can risk to be sent to another State in which he is not protected from persecution.

The second paragraph of art. 19 of the 1998 Immigration Act forbids expulsion, except where grounded on reasons of national security, to some categories of aliens namely minors, aliens living with relatives within the second degree or with spouse, of Italian nationality; pregnant women or in the six months following the birth of their child of whom they take care.

Role of the Charter and role of the general principles on enforcement

• Explicit reference to Art. 13 ECHR

Art. 5.1(f) ECHR

Art. 13 ECHR

The Italian Supreme Court explicitly realigned its case-law to the ECtHR’s interpretation of art. 5.1.f) of ECHR. The ECtHR has formulated the principle according to which a detention of an irregular migrant is in breach of art. 5.1.f) when the detention order or the preexisting expulsion order are manifestly illegitimate. In Seferovic c. Italia (8th February 2011) the EctHR considered that the expulsion of a woman having given birth to his son for less than 6 months amounted to such a situation, provided that under Italian law in a situation as such the expulsion order cannot be enforced.

It is also important to highlight that the Supreme Court also referred to art. 13 ECHR right to an effective remedy.

The Supreme Court did not substantiate this reference. Nonetheless, it is meaningful that the principle of the full effectiveness of the remedy has prevailed on existing content-based limits of the judicial review of a detention order, limits derived by procedural jurisdiction rules

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• Seferovic v. Italy, 8th February 2011, app. n. 12921/04
• Hokic and Hrustic c. Italia, 1st December 2009, app. n. 3449/05