Detention in prisons, the judge must justify the yes to the request of the quaestor
Extensions affect a fundamental right protected by the Constitution. The court must exercise judicial review
by Patrizia Maciocchi
2' min read
2' min read
The Justice of the Peace who validates the further extension of detention in a Centro di permanenza per i rimpatri (Cpr) of the foreigner cannot limit himself to accepting the motivations of the Questore and to referring to the police information. The order must, in fact, provide the reasons justifying the continuation of the restriction, exercising the duty of judicial review.
The restriction of a fundamental freedom
.The Supreme Court thus upheld the appeal of a non-EU citizen against the third extension in the Trapani CPR, justified by the difficulty of identifying the applicant, given that the Gambian consulate had not recognised him as a citizen. According to the Supreme Court, given the negative outcome of every other identification attempt made up to that moment, the justice of the peace could not endorse a measure that would compress a fundamental freedom, protected by Article 13 of the Constitution, without explaining on the basis of what concrete elements identification was considered likely.
The Supreme Court then recalls that the need for motivation becomes more stringent when the time of detention is extended. "On the subject of the detention of a foreign national at a detention centre for repatriation, the assessment to be made by the validating judge varies depending on whether it is the first extension or subsequent ones," reads the judgment, "given the progressive intensification of the conditions that justify the deprivation of personal liberty, having to ascertain, in the first case, that it is necessary to extend the detention for the time strictly necessary for the administration to prepare the repatriation, while, in the second case, that such extension is necessary to complete an identification now likely, in the light of the concrete elements already emerged, or to complete the repatriation operations under the organizational profile".
The absence of further verification after the extension
.A motivation - underlines the Court of Cassation - that 'must contain the ascertainment of the existence of the reasons put forward in support of the request, as well as their congruence with the purpose of making possible repatriation'.
For the judges of legitimacy, none of this had happened in the case examined. The contested decision of the Justice of the Peace, but even before that the same request of the Questore did not indicate on what basis the identification of the applicant and his repatriation would still be possible. Nor was there any indication of activities carried out for the purpose of identification after the previous extensions. The justice of the peace, therefore, acted in the wake of the quaestor and failed in his duty to implement a judicial control.
