The political choice on migrants of the current Meloni Government would seem to have appeared very clear from the very beginning in a restrictive sense, if one may say so. And this, despite the ineffectiveness in the years, current and past, of the so-called repatriation policy, involving complex and in many cases costly procedures that, also for such reasons, have known yesterday, and find today, few applications. More than anything, migrants, would seem to remain on Italian territory, and in the vast majority of cases, in the absence of any possibility of integrating into society.
Lastly, the effectiveness and practical feasibility of "border detention" would seem to be at stake precisely on the application results of the so-called Cutro Decree (Legislative Decree no. 20 of 2023 converted into Law on 5 May 2023, no. 50), introduced by the current Meloni Government, and containing "Urgent Provisions on the Legal Entry Flows of Foreign Workers and the Prevention and Fight against Illegal Immigration".
According to the news reported by important press organs, as a percentage, of the indicative number of decisions taken to detain at the border ordered by the Agrigento police headquarters, only a very few have subsequently been validated by the judiciary. In essence, in the absence of "due motivation on the necessity of detention, on its proportionality and on the impossibility of making effective use of other alternative measures, of a non-coercive nature", no measure in this sense can be applied. Even more so when one wants to consider that the very same provision of article 10, paragraph 3, of our Italian Constitution, in the manner in which it has been constantly interpreted by the legitimate jurisprudence and in the meaning attributed to it years ago by the United Sections, would lead to excluding even that the mere provenance of the asylum seeker from a safe country of origin can automatically deprive the aforementioned applicant of the right to enter Italian territory to request the desired international protection. And even more so, when, even after considering and considering everything, Directive 2013/33 contemplates, in its Article 9, both the right to be detained only for a certain period, the shortest possible, and the right to have the measure issued in written form by an administrative or judicial authority and containing the analytical exposition of the reasons in fact and in law that constitute its basis, as well as the right to obtain a review of the detention measure by the judicial authority, both ex officio and at the request of the applicant through recourse to legal assistance, even free of charge, for those who do not have the necessary resources.
First of all, because under Article 5 of the ECHR, this form of deprivation of liberty, namely the detention of the foreigner, would seem to be permitted, provided that it is a measure adopted with a view to expulsion, or as a preventive measure against unauthorized entry into the national territory, taking into account the fact that the deprivation of liberty of migrants when, and if, they are in an irregular situation, cannot be configured as arbitrary, nor can it constitute the automatic consequence of a violation, or alleged violation, of the legislation relating to foreigners. Then, because, to put it differently, the measure of detention of migrants must be an exceptional measure, of last resort, proportionate and, consequently, represent a measure of an absolutely individual nature since it is considered necessary as a measure of prevention of illegal immigration. Finally, because, the detention of migrants in an identification facility should never be configured as a measure having, in any way, a punitive character.
In light of the numbers, perhaps it would be useful, if not absolutely necessary also in consideration of the ever-changing international scenario, to prepare a reform of the reception system that effectively responds to the need to balance the duty of rescue at sea, management of arrivals, social inclusion and guarantee of safety.
Inviolability of fundamental rights and freedom in respect of others would seem to be the watchwords for a radical change in the concept of "limit" as a physical border and for the construction of a safe and globalized multi-ethnic society.
Giuseppina Di Salvatore – Lawyer, Nuoro
