The Supreme Court: the Consulta should not be circumvented on the CPRs

This time the intervention of the execrable Massimary of the Supreme Court cannot but please the government, in particular Interior Minister Matteo Piantedosi. If a few days ago the report on the security decree had attracted criticism and controversy for its highly critical content, now the new document by the Court judges reckons with the consequences of the recent ruling by theConstitutional Court on CPRs. 

The Constitutional Court, on the one hand, strongly emphasised the need forlegislative intervention to regulate with a primary law the times and methods ofthe detention of migrants in the Centres, but on the other hand it considered the questions raised inadmissible, considering that it could not intervene directly to fill the gap that a verdict of unconstitutionality would have produced.

A complex pronouncement that the Report qualifies as of "ascertained, but not declared unconstitutionality", which some of the first applications by the Courts of Appeal (Rome, Genoa, Sassari) used to corroborate the non-validation of the detention orders. A conclusion that, according to the Supreme Court, is unjustified. That is to say, the judges on the merits have exploited that part of the judgment of the Constitutional Court critical of the absence of a primary-level discipline, which is absolutely necessary to establish such a severe restriction of personal freedom as the measure of detention.

However, this misunderstands the conclusion of the judgment, which was ofinadmissibility and not illegitimacy. "The approach set out above, the judges of the Supreme Court emphasise, although dictated by the attention paid to respect for the fundamental rights whose protection the judge is called upon to guarantee, presents some undeniable profiles of criticality". In fact, "following the approach taken by theCourts of Appeal, one would end up debasing the choice of the Constitutional Court, denying value to the type of pronouncement adopted of 'ascertained but not declared illegitimacy'".

The Constitutional Court, recalls the Report of the Supreme Court, made a choice dictated by respect for the legislator's discretion, having ascertained the impossibility of regulating with a sufficient degree of specificity themethods of detaining foreigners at the CPR. A decision characterised, therefore, by a spirit of loyal and dialectic institutional cooperation.