More guarantees for migrants against detention

More guarantees for migrants. In appeals to the Court of Cassation against detention validation orders they will be able to count on the defence ensured by a lawyer. In fact, the Constitutional Court has declared illegitimate the rule, introduced a few months ago, which, borrowing the discipline from that provided for the European Arrest Warrant, provides that the Court of Cassation judges in chambers, without the intervention of the parties, on the grounds of appeal of the parties and on the requests of the Attorney General's Office.

According to the Constitutional Court, sentence no. 39, the reservations put forward by the Supreme Court itself are well founded. In fact, the new rules, contained in Decree-Law no. 145 of 2024, in the part in which it extends to the judgement of legitimacy on the validation of detention a procedural model such as that of the European Arrest Warrant, which is structurally not suitable to ensure the parties a moment of written or oral dialectical confrontation, borders on manifest unreasonableness.

In the Consulta's assessment, these are heterogeneous matters that cannot be assimilated. In fact, the Court emphasised, the particular speed and simplification of the procedure concerning the consensual European arrest warrant is justified both by the need to conclude the surrender procedure within the time limits imposed by Framework Decision 2002/584/JHA and by the consent given by the person concerned, the object of judicial review is more limited..

On the other hand, the judgment of legitimacy before the Court of Cassation on the validation of detention is characterised by the opposition of the parties and may extend to the verification of profiles that go beyond the regularity of the adoption of the restrictive measure.

However, the Court goes a step further and points to the procedural rules governing the ordinary European arrest warrant as the point of reference. This is a conclusion that, the Consulta points out, makes it possible to hold together procedural acceleration requirements and guarantees, with the parties having to be heard in any case (and for migrants this translates into technical defence by a lawyer).