The CPRs are illegitimate, for the Consulta they violate freedom
The Consulta puts an end to hypocrisy
The detention of migrants cannot take place outside the guarantees of art. 13 of the Charter. From today, foreigners will be able to assert their rights
The Constitutional Court ruling 96/2025 , which decided on the referral of the Justice of the Peace of Rome with order dated 17 October 2024, in relation to the “methods” of detention in the CPRs, is of extreme importance. The Court, recalling its jurisprudence on detention in administrative detention centres for foreigners (judgments no. 212 of 2023, no. 127 of 2022 and no. 105 of 2001), but also its recent jurisprudence (judgment no. 22/2022) on the REMS (Residences for the Execution of Security Measures), clearly underlines that " the detention of foreigners, therefore, as a measure affecting personal freedom, cannot be adopted outside the guarantees of art. 13 of the Constitution, being attributable to the "other restrictions of personal freedom" (9) and that " the public interests affecting the matter of immigration cannot, in fact, undermine the universal character of personal freedom, which, like the other rights that the Constitution proclaims inviolable, belongs to individuals not as participants in a specific political community, but as human beings" (9).
According to the Court, " the vulnerability complained of by the referring court with reference to the absolute reserve of law referred to in art. 13, second paragraph, of the Constitution exists" because, precisely in compliance with the aforementioned art. 13, paragraph 2 of the Constitution, it is up to the " primary source therefore to foresee not only the "cases", but, at least in their essential core, the "ways" in which detention can restrict the personal freedom of the subject subjected to it". However, this has never happened because " the legislator has failed to fulfil the positive obligation to regulate by law the "ways" of limiting personal freedom, eluding the function of guarantee that the absolute reserve of law carries out in relation to personal freedom in art. 13, second paragraph, of the Constitution. The "ways" of detention are in fact currently improperly regulated (or not regulated at all) by regulatory sources that do not have the force of law and often only by simple administrative provisions" . The scant legislation in force is therefore "completely unsuitable to define, in a sufficiently precise manner, what are the rights of persons detained during the period - which could also be not short - in which they are deprived of personal freedom" (10). What should happen? On this point the Court is precise: the legislator has an "unavoidable duty to introduce a complete regulation that dictates, in abstract and in general for all detained subjects, contents and methods delimiting the discretion of the administration, so that the detention of foreigners ensures respect for fundamental rights and the dignity of the person without discrimination" (11).
Why then was the question of constitutionality, so well founded on the merits, declared inadmissible, and what will happen now? The Court, in the wake of a similar decision on the Rems, recalls that " the instruments of the judgment of constitutional legitimacy on laws do not allow this Court to remedy the defect of a law that describes and regulates with a sufficient degree of specificity the "ways" of detention of the foreigner at the CPR, since there is no adequate solution in the legal system to fill the gap found through the expansion of different legislative regimes" . Simply put, the Court cannot replace the seriously defaulting Legislator. In my opinion, precisely because fundamental rights are at stake, the Court could have been clearer in reaching the conclusion that detention can no longer be implemented in its current regulatory configuration . In any case, the scenario that now opens up after the Court's ruling is that of a profound change in the system of detention of foreigners.
But what will happen if the Legislator does not fulfill its obligations and remains inert, as has unfortunately happened in other fields? In terms of social and political action, today associations and political forces have a push, but also a strong obligation to act in all venues so that a regulatory reform takes place as soon as possible. As for the people who are detained despite the serious regulatory gap, they have full right to act, albeit with great difficulty, to assert their rights, as the Court itself underlines in the final part of its ruling . If, as the Court reminds us in its provision, detention cannot be adopted outside the guarantees of Article 13 of the Constitution, the entire framework, from today, can no longer be the same as before.
l'Unità
