Mittwoch, 29. März 2017

Migrants. A Clear Way Ahead For The Minniti-Orlando Decree: The Central Points

From Redattoresociale.it

The government has put its faith in the Senate. The Ministry of the Interior's end goal is to speed up the whole process and to ensure the regulation of the migrant reception system. But the polemics have already begun: from the Community of Sant'Egidio all the way to ARCI, everyone opposes the decree. Gianfranco Schiavone (ASGI): “A manifesto made up of laws, without reasons for their necessity or urgency.”


With 145 for, 107 against, and no abstentions, the Government has backed the much contested Minniti-Orlando decree on immigration. The proposal will now be examined by the Chamber of Deputies. The declared objective of the two Ministers is to speed up the procedures for the recognition of international protection, accelerate deportations, and ensure hard and fast rules in the reception system. But the new regulations bring with them a host of criticisms. All of the humanitarian organisations concerned with the right of immigration have spoken out against the decree in recent weeks, speaking of an “electoral manoeuvre which follows the right-wing in criminalising immigration.” Representatives from across civil society, from the Community of Sant'Egidio all the way to ARCI, Antigone, Amnesty International, Centro Astalli, CIR, and the 
National Coordination of Care Communities (CNCA) have all raised their voice. Even the National Association of Magistrates (ANM) has expressed its opposition. But what exactly are the most important aspects of the decree?

Specialist judges and concerns about discrimination. In order to speed up the procedure for the recognition of the right to asylum, the decree proposes the establishment of specialised court sections (initially 14 but now increased to 20), dedicated to asylum requests and deportations, headed up by magistrates with a specialist knowledge of migration. But it is exactly the creation of such sections which raised the first doubts relating to the decree's legitimacy, as it seems to not be in accordance with Article 102 of the Italian Constitution, according to which: “There cannot be extraordinary judicial institutions or special judges” but only “sections specified for particular disciplines.” According to Gianfranco Schiavone, a lawyer and member of the Association for the Juridical Study of Immigration (ASGI), an expert on immigration law and President of the Trieste branch of the Italian Consortium for Solidarity (ICS), this is based on mere wordplay. “The difference is quite subtle. The decree doesn't mention special judges, which are expressly forbidden by the Constitution, but of specialised sections”, he explains. “The problem remains however. The specialisation is not of a whole discipline, that is, immigration law in its entirety, but only for refugees, that is, only for international protection. This risks creating the idea of a special judge for asylum seekers, thus raising a possible conflict of legitimacy. The rule might be considered discriminatory.”

Furthermore, according to Schiavone, creating such institutions would not even solve the problem of the long waiting times. “Instead of unblocking the process, this could actually make it more disputed.” “There is no need for special sections. Instead, competence regarding this material ought be spread out and handed over to the court of the location where the asylum seeker is resident. In our view, it's necessary that the asylum seeker's area of jurisdiction be physically near by”, he adds. “We are now in a situation in which the number of refugees in our country will keep increasing. Thus it's unreasonable that in this precise moment the number of judges who are engaged in this discipline be decreased. It's being treated like a niche occurrence, and not a subject which will continue to invest our work to an ever greater degree.” The only amendment which the Government has accepted deals with a different problem: in the first draft of the decree, the hearing was to be recorded on video. In the new text, an amendment states that the asylum seeker is to be heard directly in court if the video is not available, if “the interested party has requested so in the course of the appeal” and the judge believes it to be essential, or if “the case is based on factual elements which were not provided in the original procedure.”

Appeal denied. A still more important point in the Minniti-Orlando decree is the removal of the appeal, that is, one of the three levels of judgements provided for by our laws, even for minor civil matters. If an asylum seeker wants to make an appeal against a judgement given by the Territorial Commission, they will only be able to appeal to the Court of Cassation [a high court of appeal]. “It has been noted by many people, and with very good arguments, that the double level of judgement has no explicit constitutional protection”, explains Schiavone. “But in order to understand if an act is legitimate and balanced, we have to see the context into which it is inserted. And now one can deny that this would be the only instance in the entirety of Italian law where, in relation to a person's rights, there is now double level of justice. In the end, that which is provided for even minor civil cases, like stealing a chocolate bar from a supermarket, will no longer be provided for in a case which attempts to establish if someone was exposed to inhumane and degrading treatment in their country. We need to ask if the existence of a specialised court section has the capacity to take on the function of a double level of judgement”, he adds. “I seriously doubt that this would be the case. I also have strong concerns over this kind of imbalance in relation to all other legal proceedings, partly because the rights which need to be protected are fundamental personal rights, such as the right to life, to health, to asylum. All of these are rights guaranteed under the Constitution.” In this form, the new law thus “risks being imbalanced and unjust.” “We cannot exclude the fact that there are doubts relating to legitimacy, because the criteria of reasonableness, equity and non-discrimination are not respected.” For Schiavone, this very point ought to have been dealt with much earlier: “not only at the Chamber of Deputies, but even in the more appropriate departments. What we do not understand” he claims, “is why this was not enacted by September, when the government has to put out an integration and correction to Decree n. 142 on asylum. It would have been quite possible on this occasion to introduce modifications on many aspects, including critical issues such as the reform of the Territorial Commission. Instead, there is another immigration bill, which in our view meets no criteria of necessity or urgency. It seems more like a manifesto of laws, for electoral purposes.”

New detention centres.* The name changes but the rules are the same. The decree provides for the establishment of “Centres for Repatriation”.* These will be much smaller than the old detention centres, and spread throughout the country, designed to speed up deportations of those who have no right to international protection. “The previous rules relating to who does and doesn't end up in a detention centre haven't changed. Only the name has changed: for the fourth time, these centres will be renamed without any relevant changes”, Schiavone concludes. “We need to go back to the drawing board about the underlying principles to expelling or detaining people, that is, to limit these procedures to cases of serious danger to society, to situations when you really have to intervene in this manner. That hasn't been done: there's talk about smaller centres, but this is hardly relevant on a legal level.”

Criticisms from NGOs. “The wrong response, given only for the sake of elections.” Over the last few weeks the decree has been criticised by a range of humanitarian organisations engaged with immigration and human rights. Last week some of the most important groups came together in a public assembly at the La Sapienza University in Rome. For Paolo Morozzo Della Rocca, from the Community of Sant'Egidio, the Orlando-Minniti decree “constitutes the wrong answer to a series of very real problems”, ones which the government is failing to confront. These include the social inclusion of asylum seekers, and the legal routes to arrive in our country. For Filippo Miraglia from ARCI, “the text is unacceptable”, and has none other than an electoral aim to “pick up the right's themes on security”. An opinion which is widely shared by other representatives of civil society, such as Patrizio Gonnella from Antigone and CILD (Italian Coalition for Freedom and Civil Rights), as well as Chiara Peri from Centro Astalli. “We cannot accept this denial of rights”, Don Armando Zappolini adds, President of the CNCA, “We are ready even for disobedience.”

Eleonora Camilli

Project "OpenEurope" - Oxfam Italia, Diaconia Valdese, Borderline Sicilia Onlus

* Detention centre = CIE: Centro di identificazione e espulsione
* Centre for Repatriation = CPR: Centro di permanenza per il rimpatrio

Translation by Richard Braude

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