Italy: Lecce judge questions whether migrant law constitutional

Rome: An appeals judge in Lecce recently questioned the constitutional legitimacy of legislation regulating the legal entry of foreign workers, the management of migrant flows and international protection applications. The case regards the extension of the detention of two migrants at a local repatriation center.

Lecce Appeals Court Judge Giuseppe Biondi last week suspended judgement on a request to extend the detention of two migrants at the CPR repatriation center at Restinco-Brindisi in the southern Italian region of Puglia, questioning the constitutional legitimacy of the government’s migrant flow decree (145/2024), which was converted into law in December last year.

The judge’s decision, one of the first in Italy, was also based on an appeal filed by attorney Bartolo Gagliani, who represents the two migrants — a Tunisian and a Moroccan — against the rejection by the territorial commission in Lecce of his clients’ application for international protection.

The appeals judge announced he would suspend judgement pending a decision of the Constitutional Court on the case regarding the two migrants.

In his ruling, the magistrate raised the issue of constitutional legitimacy in relation to articles 77, comma 2, 25 and 102 of the Constitution. The judge pointed to what he regarded as a compromised right to defense saying he believed that the decree that became law last year was not based on a real need or urgency and therefore could be regarded as unnecessary.

Biondi added that he believed that appeals courts like his had no real special knowledge of handling such complex issues such as migration and cases should be left to specialized tribunals, as had been the case previously.

Moreover, the judge noted the possible constitutional illegitimacy of the measure in connection to article 3 of the Constitution which states that “all citizens have equal social dignity and are equal in front of the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions.”

Biondi said that he believed the migrant flow decree had been originally issued “without the extraordinary need and urgency” required to issue such a decree. In addition, the legislation compromised the right to defense regarding appeals filed against decisions taken by territorial commissions, according to the judge’s ruling.

The decree law No. 145 was issued by the government in October last year after the special immigration section of the Tribunal of Rome failed to validate the detention of migrants taken to newly opened Italian-run centers for the fast-track processing of asylum requests in Albania.

Appeals courts were subsequently placed in charge of validating detention orders in lieu of the special immigration sections of tribunals when the decree was converted into law. In his ordinance, Judge Biondi highlighted the “reigning confusion” allegedly caused by the fact that courts of appeal, which were previously in charge of examining appeals against the decisions of the tribunals’ immigration sections, were instead required to validate the detention for asylum seekers requested by police chiefs after the decree was turned into law, a more limited scope normally attributed to courts of first instance, according to the Lecce appeals judge.

Biondi noted how the original measure, which “was already not based on any explicit reason of extraordinary urgency and need, was distorted when the decree was converted into law, once again without this being justified by explicit reasons of extraordinary urgency and need.”