STATEMENT BY THE UN WORKING GROUP ON ARBITRARY DETENTION AT THE CONCLUSION OF ITS MISSION TO ITALY

Ladies and gentlemen, good afternoon.

My name is Aslan Abashidze, and I would like to welcome you to this meeting with the press held by the United Nations Working Group on Arbitrary Detention at the end of its official visit to Italy, which started on 3 November and ends today.

I would first wish to briefly introduce the Working Group on Arbitrary Detention (WGAD). It was set up by the former Commission on Human Rights in 1991. The current Human Rights Council extended the mandate of the Working Group. The Working Group is composed of five independent experts representing the five regional groups of the United Nations and serving in their personal capacities. Two of the five members of the WGAD, Mr. Garretón and myself, form part of this official delegation. In this respect, because the delegation was formed only by two of the five members, I would like to emphasise that what we will present to you are preliminary findings. They will be examined and deliberated by the entire Working Group at its next session, at which the Working Group will adopt a report on this visit. The report will be made public.

The Working Group on Arbitrary Detention is mandated to investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration on Human Rights, in human rights conventions and other legal instruments. As part of its work, the Working Group conducts official country visits, upon the invitation of governments, in order to better understand the situation prevailing in the country, as well as the reasons behind instances of arbitrary deprivation of liberty in those countries. I would like to express our thanks to the Government of Italy for the invitation.

The mandate of the Working Group originally defined three categories of arbitrary detention:
-Category I: when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty;
-Category II: when the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by applicable international human rights instruments, such as the detention of persons on the basis of their religion or political opinion.
-Category III: when the violation of international norms relating to the right to a fair trial is of such gravity as to make detention arbitrary.
More than ten years ago, the UN Commission on Human Rights asked the Working Group to also look at the situation of migrants and asylum seekers who are deprived of their freedom. This last aspect of the Working Group’s mandate was the main reason for the visit to Italy.

Let me say some words on the program of the visit. In the course of the past 12 days our delegation visited Rome, Naples, Catania, Caltanissetta, Cassibile, and Milan. In each of these cities, we met with the authorities, among them:

-The Ministry of Interior, including the Secretary of State Mr. Alfredo Mantovano, the Chief of Police, and the Director of the Department on civil liberties and immigration, as well as numerous prefecture and police officials at the local level;
-The Ministry of Justice, including the Minister of Justice and the heads of department of judicial affairs, penitentiary administration and juvenile justice;
-officials at the department of mental health of the Ministry of Labour, Health and Social Policies;
-The Superior Council of the Magistracy, the Cassation Court and numerous judges and prosecutors in Naples and Milan;
- the Committee for justice affairs of the Senate;
- the Ombudsmen for the rights of persons deprived of their liberty of Lazio and Campania as well as of Milan Province.

We also met with representatives of the criminal bar association criminal defence lawyers, among them some specialised on terrorism cases, and lawyers defending migrants and asylum seekers, as well as numerous representatives of civil society organisations active in the fields of the justice system and of immigration and asylum.

Possibly most importantly, we visited many places where persons are deprived of their freedom and discussed in private with the detainees. Among these places are Rebibbia and Poggioreale prisons, a judicial psychiatric hospital, the mental health department of a hospital, facilities for juvenile offenders, the police holding cells in Naples, facilities for asylum seekers and identification and expulsion centres for migrants.

We would like to stress that we have enjoyed in all respects the fullest cooperation from the Italian Government. We have been allowed to visit all places of detention we had requested and to interview in private detainees of our choice, without any restriction. The Government provided us copies of all the documents we requested.

I now turn to my colleague and peer, Mr. Roberto Garretón, who will present some preliminary findings of the Working Group delegation which visited Italy.


We were told innumerable times in the past two weeks that there could be no arbitrary detention in Italy in the sense of detention without legal basis or in violation of fundamental due process guarantees. We were told so not only by officials from the ministries of justice and interior, by judges, prosecutors and police officers, but also by representatives of the otherwise very critical civil society.

We tend to agree with this assessment, but with some qualifying remarks. The strength of the commitment of a government to human rights – among them due process guarantees – is really put to test when faced with a real or perceived emergency. There are at least three situations currently perceived by some as critical situations facing law enforcement and justice in Italy and thus requiring extraordinary measures:

- the fight against organised crime of the mafia type;
- an alleged alarming rise of common criminality by foreigners living in Italy without permit; and
- the post 11 September 2001 threat of international terrorism.

In responding to each of these situations, the Government is having recourse to extraordinary measures involving deprivation of liberty. They are certainly not cases of straight forward arbitrary detention, but they do raise some concerns, which we are going to discuss with our colleagues in Geneva and examine in our report.

Regarding the fight against organized crime, we have examined the issue of the “tough imprisonment” under article 41 bis of the Law on the penitentiary system. We have been told by the government, by judges and prosecutors, that this special provision is necessary to effectively combat mafia crimes and protect society. We are also aware that the European Court of Human Rights has repeatedly stated that this form of detention does not amount to torture, inhuman or degrading treatment. There remain, however, some concerns regarding the repeated renewal of this measure, year after year in many cases. We met one detainee who told us that he was in his fourteenth year of “tough imprisonment” under article 41 bis, which the prison administration confirmed.

Regarding efforts to prevent the criminality by irregular foreigners, the government has adopted a number of measures that caught our attention:
- mandatory arrest and fast track trial for foreigners who remain in Italy notwithstanding an expulsion order;
- the amendment to the criminal code making the status of irregularly present foreigner an aggravating circumstance for any offence. In other words, if an Italian citizen and an irregularly present foreigner steal a car together, the foreigner is to receive a significantly higher sentence than the Italian. This is a provision that does raise some concern.
- Parliament is currently debating the criminalisation of illegal entry into the country. In this respect, we note with relief that the proposal to punish illegal entry with a prison term has been withdrawn.

Regarding the fight against international terrorism, the Italian justice system is responding vigorously to this threat by investigating, prosecuting and imprisoning persons involved in terrorist activities. According to detailed information provided to us by prosecutors dealing with these crimes, more than 90 international terrorists have been convicted and sentenced to prison terms in Italy since 11 September 2001. This is a response that meets the twin requirements of international law: protecting the population against terrorist crimes while upholding fundamental principles of human rights law.

There is however also a “dark side” to the response to international terrorism by the authorities: foreigners suspected of terrorism can be and are returned to countries where they are at very substantial risk of arbitrary detention and profoundly flawed trials, as well as of torture. Such expulsions take place without any effective judicial control. In some cases, foreigners who had been tried and acquitted on terrorism charges in Italy were subsequently expelled to countries in which they were promptly imprisoned, most likely in serious violation of fair trial guarantees. We call on the Government to reconsider this practice.

When it carries out an official visit, the WGAD is always called to pay particular attention to the deprivation of liberty of vulnerable groups. Here in Italy, as in other countries, we have examined the detention of juvenile offenders and of persons living with mental health problems.

In the past two weeks we have visited two prisons for juvenile offenders, a center for the holding of juvenile offenders immediately after their arrest, and a community in which juvenile offenders live instead of imprisonment. We have spoken with juvenile offenders staying in these institutions and with those responsible for running them, as well as with juvenile judges and prosecutors. We are very impressed with Italy’s juvenile justice system. It is a very far reaching application of the principles on the treatment of juvenile offenders in the UN Convention on the Rights of the Child and of the principle in article 27 of the Italian Constitution that penal sanctions shall aim at the rehabilitation of the offender. Italy could serve as a model to many other countries in this respect.

Some persons we spoke to are concerned that the juvenile justice system will suffer deep budgetary cuts in the coming years. These cuts, it is feared, would undermine the current model and force a sharp reduction of the activities in juvenile prisons aimed at the rehabilitation of the detainees, as well as of the possibility to effectively pursue alternatives to imprisonment for children in conflict with the law. We appeal to the Government to continue providing the means which are necessary for the Italian juvenile justice system to function in the exemplary way it does.

As far as the deprivation of liberty of persons suffering of mental disabilities is concerned, we visited a hospital where obligatory medical treatment is provided to mental health patients and spoke to patients and doctors. We were very positively impressed by the minimal restrictions placed on the freedom of the patients and by the spirit of respect for the patients’ dignity prevailing. The situation is very different in the judicial psychiatric hospitals where persons who committed an offence and were found not responsible on the basis of mental illness are detained. The one we visited was for all practical purposes a prison. We are aware that in the past legislature there was a commission established by parliament which suggested profound reforms to the system, and we would encourage parliament to place this issue on its agenda also now.

As mentioned in the beginning, the single most important issue we intended to examine during our visit to Italy is the administrative detention of migrants and asylum seekers who come to Italy without a permit or overstay the permit they have.

In many respects, the answer of the Italian authorities and of civil society to the massive influx of human beings escaping from situations of never ending war, persecution or desperate poverty in search of a better life is admirable, in keeping with the Italian traditions of generosity and international voluntarism. Thousands of men, women and children at risk of drowning are saved on the high seas every year, they are taken to Italy, given medical treatment, food and shelter, and information on the right to seek asylum.

There are, however, also some significant human rights concerns with regard to the centers in which migrants and asylum seekers are kept, in particular with regard to the deprivation of liberty they are subjected to. In 2006, the Government set up a Commission to examine the situation of the centers for persons awaiting expulsion and to make proposals for improving them, their management and the legal framework in which they operate. The proposals made in its final report by this Commission (referred to as “De Mistura Commission” after the UN official appointed by the Government to head it) remain valid and, to a large extent, still await implementation. We would like to highlight three points concerning deprivation of liberty raised in the De Mistura report which remain of concern today:

- during the first period in reception centers, which can last between a week and more than a month, asylum seekers are de facto detained. The legal basis for this detention is weak, and there is no judicial control over this detention.
- foreigners who are to be expelled from Italy after having served a prison sentence are very often detained an additional sixty days in a Center for Identification and Expulsion in order to ascertain their identity and obtain travel documents for their return home, when these procedures could have been completed while they were in prison.
- Some foreigners who for a variety of reasons cannot be returned to their home countries, are nonetheless detained in Identification and Expulsion Centers. After the legal maximum sixty days of detention they are released, to be apprehended and detained again for sixty days in such a center a few months or even years later, with the same outcome. We have met several internees in this situation. Their detention is entirely legal from a formal point of view, but not very reasonable. As also suggested in the De Mistura report, the Government should promote incentives for voluntary repatriation instead of a deprivation of liberty that, in many cases, does not achieve its aim.

We call on the Government to implement the recommendations set forth in the De Mistura report.

With regard to the duration of detention in expulsion centers, we would like to stress that the limit of 18 months provided in the EU return directive is meant to limit the duration of detention in countries which currently have no limit. It is certainly not meant to encourage countries with laws that establish reasonable limits, such as the sixty days currently in Italy, to abandon their good practice.