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Detained foreigners and alternative to detention measures

Foreign and Italian citizens used to have the same rights when detained, therefore all measures which are alternative to detention could be used. In other words, no differences between citizens who hold residence papers and the ones who irregularly stay in our territories ever occurred in case of arrest (this is the magistrates’ interpretation of law).
Condemned people have the right to benefit from all alternative to detention measures if all conditions provided for by law are being respected.
There used to be no great doubts on this matter, magistrates accepted that clandestines could make use of alternative to detention measures. Interpretation of law was more restrictive in case of migrants without residence permit. This happened because clandestines have more difficulties than Italians and regular foreigners to be supported in the territory.

Example – An irregular detainee finds it hard to be entrusted to social services because it is extremely difficult that someone helps them with lodgings. Finding a regular job is even more difficult: administrations have problems in interpreting laws, they usually arrange conventions with cooperatives which work in the integration of detainees who benefit from alternative to jail measures. This kind of cooperatives usually work in projects that try to socially integrate detainees via labour.
We often are contacted by cooperatives which work in this sense: they often ask us what to do in case detainees without permit find a possible job. It seems that cooperatives won’t be able to benefit from pubblic fundings which are provided for projects of social integration.

In other words a non-EU detainee who holds no residence papers could make use of such measures unless more problems occur. But alternative measures were theoretically possible and allowed.

Today the trend is changing also in everyday procedures at courts of sorveillance. There was a sentence (number 30130 July 17th 2003 issued by Criminal Court of annulment section I. This sentence overturns the interpretation we have just referred of. The sentence says that custody to social services and all measures that take detainees outside houses of detention cannot be allowed to non-EU citizens who are unlawfully staying in Italy. Alternative to detention measures would make migrants stay in Italy illegal and no measures that would entitle to this could be possibly allowed.

The sentence simply wants to state that there would be incompatibility between alternative measures and people’s irregular stay. Court of annulment affirms this incompatibility and completely excludes the chance to make use of alternative to detention measures in case of non-EU citizens who haven’t got residence papers.
We should also deepen the meaning of the words “foreigners without residence papers” since it often happens that citizens who hold papers end up in jail and then their papers expire. The risk is evident: all migrants could be treated like clandestines.
July 17th sentence is based on the impugnment by general attorney of a measure dated July 17th 2002 which was issued by the court of surveillance in Taranto. Taranto’s court back then decided that a non-EU citizen without residence papers could be given to the custody of social services.
We need to remember that alternative to detention measures are the same as detention. They are an alternative measure.

No discriminations can occur between Italian and foreign citizens therefore such measures have always been allowed.
Unfortunately Court of annulment decided that what quoted cannot be allowed since incompatibility occurs in case of clandestines. Immigration rules are not compatible with such measures. In other words, Court of annulment affirms an ontological incompatibility between alternative to detention measures and the execution of the committed detention in case of clandestines.
According to the court all this is confirmed by Bossi-Fini law which provides for expulsion and repatriation of migrants who are sentenced and condemned to a less then two years detention. In other words these instructions would confirm the quoted incompatibility.

This sentence, whose motivation is absolutely synthetic, raises perplexities. The last phrase of the sentence says the conclusion of the court does not raise constitutional unlawfulness doubts since the difference of treatment between Italian and regular foreigners detainees and foreigners who are illegally staying in Italian territories is justified by their different juridical situation. In other words, a sort of discrimination is ongoing but there are different conditions, according to court, that would justify this.

From my point of view what court of annulment stated on the lawfulness of the sentence is not completely correct since there are general principles according to which the court arguments are not persuading.

If a person is condemned because of a crime the conviction must be respected and this is compulsory as court in Taranto stated. No discriminations can ever occur in this between regular foreigners, irregular foreigners and Italian citizens because law works the same for everyone.
On the other hand, convictions should be educational. Detention, alternative measures have the aim of promoting the education of all individuals and their integration in society.
This happens anyway even if the person, once conviction expires, may have to leave Italian territory since he/she does not hold residence papers. In other words when a person is re-educated he/she can take advantage of this education back in his/her country of origin after expulsion. This is not forbidden by actual law, the same re-education should take place for alll detainees a part from their juridical situation.

Another principle recognized by law is that alternative to detention measures are ways of atonement of the sentence, they are considered the same as conviction. Therefore we don’t see how they shouldn’t be accepted as an equivalent to conviction.
The argument the court used (Bossi-Fini law provides for the expulsion as a substitute of conviction) does not confirm the incompatibility of alternative measures.

This happens because such quoted measures are decided by magistrates who can freely choose whether to accept them or not. The fact that expulsion can substitute detention does not imply that alternative measures can be activated on basis of the detainee conditions and behaviour.
Doubts on the constitutional lawfulness of the Court of annulment still remain.

The only chance there is to change the sentence we are talking about is to refer to Constitutional court to express its opinion on the matter.
We shall keep giving pieces of information in case appeals occur. We ask anyone interested in the issue to also inform us.