On 17 October 2024 the Justice of the Peace of Rome issued four orders raising identical constitutional questions in similar proceedings concerning the detention of foreign nationals. The issues of constitutional legitimacy concerned Article 14, paragraph 2, of Legislative Decree No 286 of 1998, with reference to Articles 13, second paragraph, and 117, first paragraph, of the Constitution, the latter in connection with Article 5, paragraph 1, of the ECHR. The challenges alleged that the provision fails to:

• clearly regulate the procedures and conditions under which personal liberty may be restricted within Pre-Removal Centres (Centri di Permanenza per il Rimpatrio, CPRs);
• establish the rights and legal safeguards available to detainees;
• identify the judicial authority responsible for overseeing the methods of detention and for ensuring the protection of the rights of foreign nationals held in CPRs;
• define the role and powers of that judicial authority; and
• prevent excessive reliance on a subordinate legal source, namely Article 21, paragraph 8, of Presidential Decree No. 394 of 1999.

The same orders also raised issues of constitutional legitimacy with respect to Article 14, paragraph 2, of Legislative Decree No 286 of 1998, in relation to Articles 2, 3, 10 (second paragraph), 24, 25 (first paragraph), 32, and 111 (first paragraph) of the Constitution, on the grounds that the provision allegedly:

• fails to establish rules governing the modalities of administrative detention;
• does not identify the judicial authority responsible for reviewing the legality of such restrictions on personal liberty; and
• relies almost entirely on subordinate sources of law.

The Constitutional Court observed that the four referral orders concerned the same provisions and raised identical questions of constitutional legitimacy, and therefore ordered their joinder for a single consolidated decision. It ultimately held the challenges inadmissible.

The Constitutional Court cited relevant case law on detention, including the CJEU judgments in C, B and X v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (Joined Cases C-704/20 and C-39/21, 8 November 2022), and in FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság (C-924/19 and C-925/19, 15 May 2020), and the ECtHR judgment in Khlaifia and Others v Italy (16483/12, 15 December 2016). The court affirmed that detention in CPRs, as a restriction of personal liberty, must fully comply with Article 13 of the Italian Constitution, and that the constitutional guarantees enshrined in that article cannot be diminished in relation to foreign nationals, even in light of other constitutionally relevant interests. It specified that public interests related to immigration cannot undermine the universal nature of personal freedom, which, like other constitutionally inviolable rights, belongs to individuals not because of their membership in a particular political community, but simply by virtue of their humanity.

The court agreed with the Justice of the Peace of Rome that there was a violation of Article 13, paragraph 2, of the Constitution, which requires that any restriction of personal liberty be established by law. It reaffirmed its settled principle that primary legislation must fully regulate measures restricting personal freedom, by defining not only the “cases” in which such measures may be applied but also the “methods” of their application, and by clearly setting out the role and powers of the judiciary in supervising detention and ensuring legal safeguards against administrative decisions.

Specifically, the court noted that Article 14 of Legislative Decree No 286 of 1998 guarantees the detained foreigner only adequate hygienic and living conditions, necessary information regarding their status, assistance, full respect for their dignity, freedom to correspond with the outside, as well as the possibility to file complaints with the National Guarantor or regional/local guarantors for persons deprived of their personal liberty. The court affirmed that this regulation is clearly inadequate to precisely define the rights of detainees during their deprivation of liberty. It ruled that the reference in Article 14(2) of Legislative Decree No 286 of 1998 to Article 21(8) of Presidential Decree No 394 of 1999 does not meet the absolute reservation of law required by Article 13(2) of the Constitution. The Presidential Decree lacks the force of law and merely authorizes the prefect, after consulting the local police chief, to adopt measures necessary for order and safety within detention centres based on the centre’s founding decree and Ministerial directives. The court noted that these detention methods may vary across regions, as they depend on prefectural acts. Therefore, it found that by delegating almost the entire regulation to administrative rules and discretionary measures, the legislature failed to fulfil its positive obligation to regulate by law the “methods” of restricting personal freedom, thus bypassing the protective role of the absolute reservation of law under Article 13, second paragraph, of the Constitution. The court observed that neither the Return Directive nor the recast Reception Conditions Directive provides comprehensive and detailed regulation limiting administrative discretion over the “methods” of detention, including services related to care, assistance, social and human development, and visits, all aimed at protecting the fundamental and inviolable rights of those subject to restrictive measures. Consequently, the “methods” of detention in CPRs and the resulting deprivation of liberty remain largely governed by subordinate legislation and administrative acts.

Nevertheless, the court ruled that the issues raised by the Justice of the Peace of Rome must be declared inadmissible, as constitutional review mechanisms do not allow the court to remedy the absence of a law adequately defining and regulating the “methods” of detention of foreigners in CPRs. It noted that no existing legal remedy filled this gap by extending other legislative provisions. The court held that it was the legislator’s responsibility to enact comprehensive regulations clearly defining limits and procedures for all detainees, ensuring detention respected fundamental rights and human dignity without discrimination. This includes standards on facilities, hygiene, food, outdoor time, healthcare, legal access, family visits, and social activities. The court acknowledged that the lack of definition of the "methods" of detention results in the absence of specific rules to protect the rights of those held in CPRs; however, it noted that when the administration’s conduct violates the right to personal freedom, protection can still be sought through compensatory remedies under Article 2043 of the Civil Code, as well as through urgent measures provided by Article 700 of the Code of Civil Procedure. The court confirmed that detainees in CPRs may seek urgent protection under Article 700 of the Code of Civil Procedure for violations of personal freedom or fundamental rights not specifically regulated by Legislative Decree No 286/1998. At the same time, it found this remedy insufficient due to the lack of clear legislative and procedural rules governing detention conditions and legal safeguards. In conclusion, the court emphasized the need for primary legislation to regulate detention methods and for a dedicated procedural framework ensuring effective judicial protection.