Constitutional Court fearful about migrants: why it has not declared CPRs unconstitutional

The ruling filed yesterday (n. 96/2025) by which the Constitutional Court declared inadmissible the questions of constitutional legitimacy raised by the Justice of the Peace of Rome regarding the methods of detention of migrants within the Repatriation Detention Centers ( CPR ) is frankly disappointing. Of course, there are – and indeed they are prevalent – ​​harsh and intense criticisms of the current legislation on the matter, well highlighted in these columns yesterday by the director Sansonetti and Gianfranco Schiavone. And yet, despite such solid premises, the Court has given up on traveling the “ last mile” that would have led it to declare the current legislation unconstitutional. A bit like when, if we may use the comparison, having reached the last pages of a detective story, the author surprises us by not arriving at the necessary conclusions with respect to the clues previously disseminated.

Let me explain. When – and this is the majority of cases! – the foreigner cannot be immediately rejected or expelled by being forcibly escorted to the border for transitory reasons (e.g. identification, acquisition of travel documents or unavailability of a suitable means of transport), the police commissioner orders his detention for the time strictly necessary in the nearest CPR. As the Court itself has long clarified, such detention constitutes actual detention, which therefore affects the foreigner's personal freedom, rather than simply his freedom of movement, because it involves his "physical subjection to the power of others" ( ruling no. 105/2001 ) in places – such as CPRs – which, in terms of structure and internal organisation, are in fact similar to prison. Personal freedom that art. 13 of our Constitution guarantees to everyone because it is " inviolable" and therefore belongs to each person not because they are citizens, that is, "participants in a specific political community, but as human beings" (§ 9). We are therefore within the scope of the " other restrictions of personal freedom " to which - in addition to detention, inspection and personal search - art. 13 of the Constitution refers. To protect this freedom, art. 13 of the Constitution establishes two guarantees.

The first is the so-called reserve of jurisdiction, whereby it can be limited only by a provision not of the administrative authority but of the judge, as a third and impartial subject. For this reason, the police commissioner must submit the detention provision to the justice of the peace within 48 hours, who, after hearing the interested party, may validate it within the following 48 hours after having carried out a non-merely formal check on the actual existence of the conditions for both detention and subsequent expulsion or rejection.

The second guarantee is the so-called absolute reserve of law whereby it is not up to the Government but exclusively to Parliament – ​​and therefore following a public discussion and not in the secret rooms of Palazzo Chigi – to regulate the “cases” and “ways” in which personal freedom can be limited. And it is precisely on the “ways” that the current legislative discipline is “completely unsuitable” from a constitutional point of view. In fact, it limits itself to guaranteeing the foreigner certain rights: adequate hygiene-health and housing standards, the necessary information on his status, assistance and full respect for his dignity, freedom of correspondence, including by telephone, with the outside world, the possibility of addressing complaints to the national, regional or local guarantors of persons deprived of personal freedom. For the rest, it is culpably omissive in defining the other rights in a sufficiently precise manner, thus effectively leaving carte blanche to an executive regulation which, moreover, for its implementation refers to the acts adopted locally by the prefects. The result of this long chain of regulations is the risk that the methods of detention of foreigners differ from CPR to CPR, in clear contempt of an inviolable right which, as such, must be uniformly guaranteed throughout the national territory. Ultimately, for the Court, the current regulatory framework regarding the methods of detention of foreigners in CPRs is unconstitutional because it is mainly regulated not by law – as required by compliance with the relevant reservation provided for by art. 13 of the Constitution – but by regulatory norms and discretionary administrative provisions which, moreover, may be different from each other.

At this point, on the basis of such premises, the reader would expect a ruling of unconstitutionality of the law because it is too lenient in guaranteeing the rights of foreigners. Instead, the Court rejects the question raised by the judge, declaring it inadmissible (not, therefore, unfounded) because, in essence, it believes it does not have the tools to replace the legislator in order to remedy the shortcomings highlighted, for example through an additional intervention that extends to the CPRs the current discipline provided by the penitentiary system, given that administrative detention in the CPRs does not have a sanctioning nature. Ultimately, for the Court the matter is too complex and articulated to be able to intervene directly. Hence, the referral to the legislator to urgently approve a regulation that, in relation to the methods of detention of the foreigner in the CPRs, ensures greater protection of his fundamental rights, for example regarding the characteristics of the buildings and the living and sleeping quarters, personal hygiene, nutrition, time outdoors, provision of health services, meetings with the lawyer and relatives, socialization activities. All this because - it is never useless to repeat it given the current climate - the foreigner is and remains a person to whom the inviolable rights of man must be guaranteed ( art. 2 Cost .).

So – the Court seems to imply – “I would like to, but I can’t”. With all due respect, however, it seems to me a “I could, but I don’t want to ” because the Court could have done more and better. In my opinion, in fact, the Court could have declared art. 14.2 of the consolidated law on immigration that the justice of the peace had challenged unconstitutional precisely because it does not indicate in a comprehensive and complete manner the methods of detention in the CPRs. By doing so, the Court would have forced the legislator to intervene immediately to remedy the denounced unconstitutionality. For example, the Government could have approved a decree law – at least this time – corresponding to the conditions of necessity and urgency established by art. 77.2 of the Constitution ; after all, it is precisely for this reason that the Constitutional Court’s rulings are communicated to the Chambers. Or, as on other occasions, the Court could have issued an order setting a specific deadline within which the legislator must intervene, under penalty of a declaration of unconstitutionality, as has happened in other cases (prison sentences for journalists in the case of defamation, assisted suicide and review of life imprisonment).

A censorial intervention that would have been all the more desirable both because of the extreme relevance of the matter – personal freedom precisely – and the serious injuries that foreigners suffer in such CPRs, being mostly locked up in overcrowded places, without privacy, in unhealthy conditions, suffering violence, as denounced by the ECHR and by journalistic investigations. Instead, the Court limited itself to issuing a simple warning to the legislator to intervene; a warning in response to which the Ministry of the Interior promptly declared itself aware of the criticality of the current legislation and said it was already «committed to drafting a primary law» to resolve the problem. An evidently very laborious birth and of which, let us be allowed, we have not and probably would not have had news if the Court had not intervened.

FROM

Salvatore Curreri