Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Report on the visit made by the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Italy
Report to the State Party *,**,***
A.National Preventive Mechanism4
D.Overarching issues pertaining to immigration detention 11
IV.Repercussions of the visit and final remarks20
I.List of Government officials and other persons with whom the Subcommittee on
Prevention of Torture met21
II.Places of deprivation of liberty visited by the Subcommittee on Prevention of Torture23
1.In accordance with its mandate under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Optional Protocol” or OPCAT), the United Nations Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Subcommittee” or “SPT”) conducted a visit to Italy from 16 to 22 September 2015.
2.The SPT members conducting the visit were: Mr. Hans-JörgBannwart (Head of Delegation), Mr. Malcolm Evans (Chair of the SPT), Mr. Paul Lam Shang Leen (Vice Chair of the SPT), and Ms. Margarete Osterfeld. The SPT was assisted by three human rights officers from the Office of the United Nations High Commissioner for Human Rights (OHCHR) and interpreters.
3.The primary objective of the visit was to assess the system of immigration detention in Italy. The SPT met with government officials, the Human Rights Commission of the Senate, representatives from non-governmental organisations, as well as the Office of the United Nations High Commissioner for Refugees (UNHCR) and the International Organisation for Migration (IOM), and visited a variety of facilities used to hold migrants in Rome, Trapani, Pozzallo, Turin and Bari (see Annexes I and II).
4.This report contains the SPT’s findings and recommendations concerning the prevention of torture and ill-treatment of persons deprived of their liberty in immigration detention facilities. The term “ill-treatment” is used to refer to any form of cruel, inhuman or degrading treatment or punishment.
5.The present report will remain confidential until such time as the State decides to make it public, as stipulated in OPCAT, Article 16(2). The Subcommittee firmly believes that the publication of this report would contribute positively to the prevention of torture and ill-treatment in the State party, as the widespread dissemination of the recommendations would foster a transparent and fruitful national dialogue on the issues covered. The Subcommittee therefor e recommends that Italy request for this report to be published, as other States parties to the OPCAT have done.
6.The Subcommittee wishes to draw the State party’s attention to the Special Fund established in accordance with Article 26 of the OPCAT. Recommendations contained in Subcommittee visits reports that have been made public can form the basis of an application for funding of specific projects through the Fund.
7.The SPT acknowledges the cooperation and assistance it received in advance, as well as during its visit. However, there were a number of unsatisfactory elements that merit mention. With regard to information, much of it was received belatedly, was sometimes outdated, inaccurate, incomplete and not relevant to the visit’s stated focus on immigration detention. In some instances, access to certain information that would have been of value to the delegation was denied.
8.Access to detention facilities during the visit was also sometimes problematic, was denied completely on one occasion and initially impeded on another. The pre-arranged means of assisting in such cases proved inadequate to address these obstacles. The cooperation with staff once access to the detention facilities had been secured was generally satisfactory and private access to detained migrants was also ensured.
9.The SPT was disappointed not to be able to meet with as broad a range of high-level authorities as it would have wished. The possibility of undertaking a short follow-up visit for the purpose of having such meetings subsequently was discussed during a meeting between the SPT and the Permanent Mission of Italy to the United Nations in Geneva and was subsequently arranged on 4 February 2016.
10.The challenges encountered with regard to cooperation and assistance appeared to reflect a lack of understanding of the nature and scope of the SPT’s mandate as set out in OPCAT, Article 11, as well as a failure of understanding by the State Party to appreciate the extent of its obligations under OPCAT, Article 12, to ensure the SPT could exercise that mandate effectively. The SPT was pleased to note that the aforementioned misapprehension seemed to be resolved as a result of the follow-up visit.
11.The follow-up visit allowed the SPT to receive further input from the high-level authorities and discuss practical ways to continue the dialogue for the implementation of the SPT recommendations, including through regular exchanges, in written form and other appropriate channels, including by Skype. The SPT was pleased to learn about the willingness of Italy to engage in such a dialogue and appreciated the swift follow up of the authorities in producing some useful additional documentation shortly after the visit. The SPT acknowledges the exchange, with thanks, and considers it a good opening of the dialogue.
A.National Preventive Mechanism
12.According to OPCAT, Article 3, a National Preventive Mechanism (NPM) must be established at the latest one year after the ratification of the OPCAT by the State party. Italy signed OPCAT in 2003, followed by ratification on 3 April 2013. On 21 February 2014, Italy adopted Law N° 10/2014, providing for the establishment of the National Authority (Garantenazionale) for the Rights of Persons Detained or Deprived of Personal Liberty, which will constitute the NPM together with the Local Authorities for the rights of persons deprived of liberty at regional and city levels. The SPT regrets that at the time of the visit, the NPM had not yet been fully established and was not functional. During its follow-up visit on 4 February 2016 the SPT was informed that two out of the three members of the National Authority were formally appointed.
13.Law N° 10/2014 provides that the National Authority will be a collegial body, comprised of one President and two members. They are to be appointed by the President of the Republic, following a decision of the Council of Ministers and the opinion of the relevant Parliamentary Commissions. The office of the National Authority is within the Ministry of Justice from which it derives the human resources for its operation.The National Authority has recently been given a status of detached (distaccato) unity with an autonomous budget. Despite the steps which have been undertaken in order to give the National Authority more autonomy, the SPT is concerned that law N° 10/2014 and other regulations do not clearly provide for sufficient functional, personal and financial independence required for a NPM to be in compliance with OPCAT (Article 18). Moreover, the SPT is concerned that the law does not explicitly provide the NPM with unrestricted access to all facilities, thus, contravening Articles 4 and 20 (c) of the OPCAT which establish the obligation for States parties to allow visits to all places where people are, or may be, deprived of their liberty. Furthermore, the law does not mention the power of the NPM to have private interviews with persons deprived of liberty and any other relevant person, nor the right to maintain direct contact with the SPT (Article 20). In addition, the law does not mention the NPM power to provide observations on policies and legislations (Article 19 (c) of the OPCAT). Furthermore, neither the law nor other regulations underline the preventive mandate of the National Authority. Finally, the law is silent on prohibition of reprisals, which is a crucial element to ensure that individuals feel safe to approach and communicate with the NPM (Article 21).
14 . The SPT reminds Italy of its obligations regarding the establishment of a NPM under OPCAT, Articles 3 and 17-23. It urges the Italian authorities to ensure that the legal framework provides for the full functional independence of the NPM, the clearly defined independence of its personnel, as well as unrestricted access to all places of detention along with the power of conducting private interviews, as well as the prohibition of reprisals, in accordance with OPCAT Articles 4, 18, 20 (c) and 21 and the Guidelines on National Preventive Mechanisms (CAT/OP/12/5). Moreover, the State party should guarantee in law and in practice the full mandate of the NPM, in particular its right to conduct private interviews with persons deprived of liberty and to maintain direct contact with the SPT, in order , inter alia , to follow up on compliance with the present recommendations. In line with the principle of cooperation and constructive dialogue and in conformity with the Article 11 (b)(iv), the SPT stands ready to assist Italy in fulfilling its obligations under OPCAT.
15.The SPT understands that the Italian legal framework related to immigration issues is undergoing modification, in particular in relation to the changes required to implement the migration policies of the European Union (EU). Given this context, the comments and recommendations of the SPT focus on a number of key elements related to immigration detention which it believes should underpin any future legislative plans.
16.The SPT notes with appreciation that Article 13 of the Italian Constitution protects the right to liberty of the person, requiring any restriction of personal liberty to be ordered by the Judiciary in accordance with the law. The SPT also welcomes:
(a)the Law No. 67/2014 of 28 April 2014 abolishing the criminal offence of irregular stay in Italian territory;
(b) the Legislative Decree No. 18/2014 of 21 February 2014, which transposes into national law European Directive 2011/95/EU, sets standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection; and
(c)the Presidential Decree 394/1999 which provides that detention centres should include essential health services, activities and freedom of worship.
17.The SPT emphasises that the first and most effective way of protecting a person from the risk of torture or ill-treatment is to limit the use of detention by having recourse to it as a measure of last resort, while ensuring that the reasons for detention are clearly and exhaustively defined in law and of limited scope and duration. In each individual case, it should be determined that detention is strictly necessary and proportionate.
18.While commending the State party for reducing the maximum length of detention in CIEs from 18 months to 90 days by Law 161/2014, the SPT notes with concern that the immigration detention, that is a form of administrative detention whereby the individual has not committed a criminal offence, continues to be commonly used.
19 . The SPT would like to emphasize that the starting point should be a presumption against detention in law. In particular, mandatory detention policies or detention of groups of persons without having undertaken an adequate assessment of the necessity and proportionality of detention in each individual case must be avoided.
20.While welcoming the decriminalization of unauthorized stays, the SPT notes with concern that, if an individual has been subject to an expulsion or rejection order and re-enters Italian territory irregularly, the criminal law continues to be engaged.
21.Legislative Decree 286/1998 provides for the detention of irregular migrants who are liable to expulsion in Centres for Identification and Expulsion (CIE). The legal framework does not foresee immigration detention in any other form of facilities and only permits such detention if (a) there is a ‘risk of absconding’, (b) there is a need to provide assistance, (c) if for practical reasons an expulsion cannot be carried out, for reasons such as the lack of confirmation of an individual’s nationality or identity by their country of nationality, lack of travel documents or of available means of transportation. Detention of a person in a CIE must be validated by the competent justice of the peace within 48 hours.In its follow-up visit the SPT was informed that the above-mentioned legal framework has been partially amended and modified by regulations which have been put into force after the visit. The SPT takes note of those changes but will comment on the legal framework which was applicable during the visit. The SPT comments have an overarching value and are therefore continue to be applicable accordingly to any change of the legal basis.
22.The SPT is deeply concerned at the enumerated criteria legitimising detention in Legislative Decree 286/1998 and, in particular, at the excessively broad approach to what amounts to a ‘risk of absconding’ in Italian law, which includes either of these elements:
(a)the individual is not in possession of a valid identity document;
(b)the individual does not have documentation capable of proving the availability of a lodging where he/she can be easily traced;
(c)the individual has previously stated or falsely certified his/her personal data;
(d)the individual did not comply with one of the measures provided by authorities (such as previous expulsion order and re-entry ban; restrictions imposed as alternatives to detention);
(e)the individual infringed one of the requirements set in relation to his/her voluntary departure.
2 3 . The SPT recommends the State party to:
( a) consider decriminalising all instances of irregular re-entry or stay;
( b) consider revising its definition of what circumstances constitute a ‘risk of absconding’ with a view of narrowing it;
( c) consider introducing a presumption against immigration detention in law and ensure that immigration detention is only applied as a measure of last resort, after it has been determined, on a case by case basis, to be strictly necessary, proportionate, lawful, non-arbitrary and it is imposed for the shortest period of time.
24.Similarly, the SPT regards the detention of a person based on the need for assistance an entirely inappropriate and illegitimate reason to deprive someone of his or her liberty. Persons in need of immediate assistance might be in a situation of vulnerability requiring protection, in which case the coercive means are not only unnecessary and non-proportionate but may exacerbate the aforementioned vulnerability.
2 5 . The SPT recommend s that the State party consider vulnerability factors as part of an individual analysis on the criteria of necessity and proportionality of detention, conducting such an analysis in a systematic way and excluding vulnerable persons from detention. Furthermore, the SPT recommend s that the State party consider removing from its legislation the provision of assistance as a reason of detention of migrants.
26.Regarding the practical obstacles to returning an individual as a reason for detention, the SPT notes that most of the practical obstacles are contingent on the cooperation of the country of origin, confirmation of the identity of the person or the availability of transport, which are beyond the control of the individual migrant. Therefore, in those cases where it is not possible to meet the above-mentioned practical conditions, the expulsion cannot be carried out and the persons awaiting deportation are released. The SPT is concerned at the possibility of repetitive detentions of the same individuals for the purpose of deportation, as several persons interviewed by the SPT were detained in CIEs for the second or third time. The SPT is particularly concerned at disproportionate punitive effect of the cumulative periods of multiple detentions in these cases, especially taking into account that individuals are deprived of liberty without having committed a criminal offence.
2 7 . Taking into account the deleterious effects of detention on the mental and physical health of detainees, the SPT recom mends that the State party take into account previous periods of detention for the purpose of deportation in the individual assessment of persons and substitute it, whenever possible, with non-custodial measures. The SPT recommends that the State party consider incorporating safeguards to prevent individuals from being administratively detained on multiple occasions cumulatively amounting to long periods.
28.The SPT is also aware of a number of readmission agreements Italy has signed with other countries, which provide for simplified procedures of return. During its visit the SPT observed how groups of migrants of the same nationality had been transferred from disembarkation directly to be detained in CIEs for the purpose of expulsion. The SPT is concerned that such agreements may foster a practice of collective expulsion, risk eroding the principle of using immigration detention as a measure of last resort, as well as treating certain groups of individuals differently, based on their nationality.
2 9 . The SPT recommends that the State party ensure that readmission agreements do not lead to unnecessary and disproportionate use of detention or collective detention of groups of persons.
30.During the meetings with the authorities and civil society the SPT was informed about the large discrepancy between the numbers of arrivals versus the number of officially registered migrants, due to the refusal of many to be registered. During its visit in September 2015, the SPT learnt that a number of “hotspots” were to be established to ensure that all migrants are duly catalogued when entering the country. On the occasion of its follow up visit in February 2016, the SPT was informed that three out of six planned hotspots were functioning. Whilst recognizing that this procedure results from the transposition of a Directive of the European Commission, the SPT wishes to put on record its concerns with regards to the possibility of using force and detaining any migrants who resist the collection of fingerprints. Furthermore, the SPT is concerned at the lack of legal basis and clear safeguards for such detention and warns that the practice of deprivation of liberty of individuals for the sole purpose of collecting biometric data, such as fingerprinting, can be deemed unlawful and represents a risk of torture and ill-treatment. This is particularly worrying in the light of the absence in the State party of a functional and independent NPM to ensure adequate standards and to reduce the risk of abuses.
3 1 . The Subcommittee recommends that the State party reinforce its legislation, including sub legislation, to strengthen the protection of migrants against torture and ill-treatment, in particular in the collection of fingerprints and avoids detention of migrants for the sole purpose of identification. Further, the SPT also recommends that the authorities ensure the presence of medical staff and independent monitors at the “hotspots” and recommen ds that the State party improve its training of personnel working with migrants, including on the Istanbul Protocol and other international standards. The SPT wishes to be informed on the further developments in the establishment and the management of the “hotspots”, as well as safeguards against torture and ill-treatment put in place by Italy in these facilities.
Prohibition of torture
32.The SPT wishes to express its grave concern that, despite more than 20 years of discussions in Parliament, the Italian Penal Code still does not contain a specific provision which penalises the crime of torture. The SPT is concerned about the fact that this situation may justify tolerance of acts prohibited under the Convention against Torture and may create actual or potential loopholes for impunity.
3 3 . The SPT urges the authorities to redouble their efforts to introduce as soon as possible the crime of torture into the Penal Code, in accordance with Italy’s longstanding international obligations and in conformity with articles 1 and 4 of the Convention against Torture. Further, with a view to reinforcing the dissuasive force of such a specific offence, the necessary steps should be taken to ensure that the crime of torture is never subject to a statute of limitations.
Prohibition of refoulement and collective expulsion
34.The SPT notes with appreciation that the Legislative Decree 286/1998, article 19(1), prohibits the refoulement of an individual to a State in which he or she risks persecution on the grounds of race, gender, language, citizenship, religion, political opinion, personal or social conditions, or risks to be sent to another State in which he or she is not protected from persecution. It also notes positively that the article 19(2) of the decree prohibits the refoulement of individuals under the age of 18; those in possession of a residence permit; individuals who live together with a relative or their spouses of Italian origin; pregnant women, and women who are caring for their child that is less than six months old.
35.However, the SPT is concerned that, according to Legislative Decree 286/1998, the Questura can reject individuals at the border without the validation by any judicial authority. While individuals can challengesuch a decision by appealing tothe Regional Administrative Court or through an Italian diplomatic representative abroad, the SPT questions the effectiveness of this procedural guarantee in practice.
36.Expulsion orders, on the other hand, must be validated by the competent justice of the peace within 48 hours, providing reasons for the expulsion. The SPT notes that individuals have the right to legal aid and assistance and interpretation services if necessary and can appeal against the expulsion. However, the appeal does not suspend the execution of the order. The SPT is of the view that the point of a preventive safeguard is that it should be able to prevent potentially irreversible harm to the individual. An ongoing legal process means that it has not yet been definitively determined whether an individual would risk irreversible harm upon his or her removal. For this reason, the legal system should provide for the automatic suspensive effect of a removal order, if the migrant is still undergoing a legal process.
37 . The S PT recommends that Italy ensure that the legal framework, and its application in practice, provides for effective preventive safeguards against refoulement . This should include, at a minimum, the automatic suspensive effect of a removal order if legal procedures to challenge the removal or to determine an entitlement to remain are still ongoing.
Structure for immigration detention
38.Following its visits to places of detention of migrants and interviews with staff and persons deprived of liberty, the SPT has concluded that the complexity of the structure by which immigration detention and the facilities are governed undermines the rights of migrants and weakens their protection against torture and ill-treatment.
39.The Ministry of Interior has the main responsibility for migration detention, but the SPT found the framework established to be marred by structural deficiencies: the delegation of powers and responsibilities throughout the system lacks the application of common human rights-based standards and rules, resulting in variations in the material standards and conditions, as well as the unjustifiable differential treatment of migrants throughout the system. The governance framework is susceptible to individual actors avoiding liability or responsibility as a result of overlapping and vaguely defined roles and obligations. It is characterised by the absence of appropriate and necessary safeguards to effectively prevent human rights violations, including torture and ill-treatment.
40.The proliferation of responsibilities at the level of managing the detention facilities is of particular concern to the SPT. The responsibilities of the various law enforcement, military and management entities are at times overlapping with unclear delimitations of competences, rendering the overall management structure of these facilities dysfunctional and inadequate to fulfil their purpose.
41 . The SPT recommends that the State party re-examine its structure for immigration detention, taking a one government approach and establishing the necessary communication channels accordingly. In particular, Italy should ensure that the roles and responsibilities of authorities and actors avoid overlapping and are clearly defined, in particular in areas where close cooperation between different entities and ministries is required.
Access to information
42.The SPT found a remarkable discrepancy between the duties to provide information, theoretically available information and the actual access of migrants to this information. Throughout all the migration processes, the lack of information was endemic and migrants interviewed expressed their incomprehension as to why they were in the particular facility and what would happen next. Migrants were unaware of their rights, of services available to them or the legal procedures they were involved in. They were distressed about being separated from friends or others they had travelled with and not being informed why they were supposedly being treated differently.
43.Some of the facilities displayed the rules and rights or had an information leaflet in different languages. However, the obligations flowing from the right of access to information require the information to be accessible in a format and language the migrant is known to understand and should not be restricted to general information, but enable the individual to understand his or her situation and rights and available options in this regard. There was a significant lack of communication between the authorities holding information on migrants’ individual cases and forthcoming procedures and the affected migrants or staff of the various facilities. In expulsion cases, staff at CIE facilities were even prohibited from informing migrants of what was happening, frustrating any efforts to maintain calm and order in the facility. Legal papers served to migrants, such as removal orders, were not adequately explained to them.
44.The SPT is concerned at how the lack of information and absence of explanations was a direct cause of the stress and anxiety migrants were experiencing, regardless of where they were being held, exacerbated migrants’ feelings of hopelessness and limbo, and impacted negatively on their mental health. Given the heightened situation of vulnerability many migrants find themselves in, extra care should be taken to ensure information is communicated in a sensitive manner.
4 5 . The SPT re commends that Italy establish procedures to ensure that migrants are informed in accessible formats and in a language they are known to understand of their situation, the availability of specific services and how to access them, the procedures that will be followed, their rights and obligations during the procedure, possible consequences of their non-compliance and remedies available to them.
Justice system, including legal assistance
46.Through its interviews with staff, lawyers, legal assistants, migrants and NGOs, the SPT found the system put in place to support migrants in exercising their rights not to be effective. Time limits within which migrants were to be brought before a court were not respected. Mutual trust between the different legal and judicial actors and migrants was lacking, as migrants felt they were not being heard The SPT heard reports that there was a perception that judicial hearings and decisions concerning detention and expulsion were a pro forma exercise and did not take the individual circumstances of migrants adequately into account. Migrants reported that they were not being heard and felt they were not being treated with dignity and respect. Alongside eliminating any incentives for migrants to cooperate with the system, the SPT also notes that the absence of appropriate and quality legal assistance negatively affected migrants’ mental health.
47 . The SPT recommends that Italy ensure that law enforcement officials, lawyers, judges and other relevant State actors working with migrants, carry out their duties in a manner that upholds the guarantees of fair trial and due process of law, in particular the right of each individual to be brought promptly before a judge to determine the lawfulness of his/her detention; to have access to legal assistance and if necessary, interpretation, free of cost; to be heard; and for his/her case to be determined following an assessment of his/her individual circumstances.
4 8 . The SPT recommends that Italy cooperate with NGOs and the bar association providing support to migrants to establish a list of lawyers with expertise in immigration law.
Monitoring and accountability
49.The SPT is deeply concerned at the absence of an independent monitoring mechanism to regularly oversee immigration facilities, transfers, disembarkation and expulsion processes. Authorities and management demonstrated a complete lack of understanding of the concept of monitoring, confusing it with surveillance or border control functions. The SPT heard reports that independent monitoring bodies, which had previously accessed detention facilities now faced difficulties in gaining access. Throughout its visit, the SPT did not encounter any individuals acting in an official capacity who monitored the human rights situation of migrants.
50.The SPT found that there were no structures put in place for migrants to file complaints and report human rights violations. The likelihood of migrants facing considerable obstacles in accessing the Italian justice system from abroad places a heightened duty on the State Party on ensuring that complaints mechanisms are effectively available and accessible. The absence of accessible and effective complaints mechanisms for migrants combined with the lack of monitoring, aggravates Italy’s ability to ensure key safeguards to prevent human rights violations, including torture and ill-treatment.
5 1 . The SPT re commends that the State party:
( a) urgently ensure internal and external independent monitoring, including through the NPM, of the immigration facilities and processes to guarantee its actions are in compliance with international human rights law and standards, including the prevention of torture and ill-treatment;
( b) ensure and facilitate effective and unrestricted access of independent monitoring bodies to any facilities where migrants may be held, including reception facilities, as well as disembarkation and expulsion processes and transfers;
( c) ensure that mechanisms are put in place to implement recommendations by the monitoring bodies.
D.Overarching issues pertaining to immigration detention
52.The SPT would like to comment on the immigration processes it observed, starting from disembarkation through to expulsion.
53.The SPT observed a calm and orderly disembarkation procedure, which entailed various security and medical checks until migrants were received at the first reception centre (Centro di Soccorso e Prima Accoglienza – first aid and reception centres for migrants and asylum seekers) or referred for onward transportation to elsewhere in Italy. The medical examinations were performed swiftly and focused on detecting communicable diseases. Pregnant women were identified on the ship and transferred by ambulance to hospital upon disembarkation. Medical emergencies were treated the same way. The SPT was concerned that the security checks were performed by male staff only. The SPT also noted that some families were separated for the purposes of disembarkation and that women withchildren had to wait to be reunited with their spouses, leaving them exposed to the elements and susceptible to separation under less orderly circumstances.
5 4 . The SPT recommends that adequate numbers of male and female staff are present to perform security checks. Moreover, the SPT recommends that families are not separated during disembarkation procedures.
55.Migrants were given a number tag and had their photo taken with it twice during the security checks. FRONTEX staff questioned migrants to ascertain identifying information for the Questura forms, such as name, sex, date of birth, nationality, while the Italian police held an operational role. This procedure was carried out speedily but migrants were not informed of their rights, or the purpose and consequences of the form and their signature. The SPT also noted that this stage did not include any questions to assess whether the individual was seeking protection or was at particular risk.
56 . The SPT recommends Italy to put in place a mechanism to ensure human rights and refugee protection concerns take precedence over border control and migration management objectives and that individuals at particular risk are identified as soon as possible. While seeking to identify migrants and data collection are necessary, care should be taken that information about an individual’s nationality does not lead to profiling based on nationality rather than protection needs. Individuals should be informed of their rights, the purpose of any forms they are to sign and the possible consequences of not complying with the process.
57.Many migrants carried bottles of water received on the ship with them. Food was served to everyone at the same time, approximately four hours after the disembarkation had started, by which time many children were complaining that they were hungry.
5 8 . The SPT recommends that water and a snack be distributed upon registration in the centre and that water be always made available when needed.
59.Some individuals were identified as potential witnesses or suspected smugglers and taken aside for questioning during which noticeable psychological pressure was exerted. The SPT was made aware that migrants willing to cooperate as witnesses were transferred to different reception facilities. The SPT was not provided information as to where these temporary or alternative reception centres were located nor where suspects were taken. The lack of transparency as well as the evident absence of procedural safeguards for these migrants at point of disembarkation raises considerable concerns.
60 . The SPT recommends that when investigating potential smugglers, all actors are aware of and act in accordance with fair trial and due process guarantees, including the presumption of innocence, the right to remain silent and the right to legal assistance. They must refrain from inflicting undue pressure on individuals, in particular in situation of heightened vulnerability and stress migrants find themselves in. Until an individual has been tried and found guilty by a court, his or her right to seek protection should not be detrimentally affected.
2. First line of reception
61.The reception centre in Pozzallo officially had the capacity to hold 180 persons in two rooms and was run by a cooperative, whose staff had different functions. There were social worker, psychologist and cultural mediators. The SPT noted positively that many staff had a migration background. However, during the days the SPT visited the facility, it did not encounter any child protection officers. No information was provided regarding staff with a child protection function and only the NGO, Save the Children, was identified as providing specialised support to children.
6 2 . The SPT recommends that Italy ensures that all immigration facilities include staff who are adequately trained to respond appropriately to age and gender specific needs.
63.Physical and psychological medical care was provided through an arrangement between the local health service and Médecins Sans Frontières (MSF). An infirmary was located on site with a fixed timetable when a doctor was available to receive patients; a nurse was present 24 hours/day for emergencies. However, the SPT regards the centre to be understaffed in comparison with the holding capacity of the centre, which can have negative consequences for migrants’ physical and mental health. The SPT was also made aware of the high percentage of women and girls who have experienced sexual and gender based violence prior to or during their journey. It was unclear to which extent the personnel and procedures were available and effective in providing adequate and gender sensitive care.
64.A positive aspect was that one of the doctors also was a psychologist. However, evidence showed that migrants were not informed and did not understand the treatment they were receiving, which in one case led to stress and retraumatisation as the migrant wanted to be transferred but had to stay behind due to his medical condition for which hedidn’t get adequate explanation.
6 5 . The SPT recommends that migrants receive information about their medical condition, necessary medication and treatment in a format and language they can understand and which is age, culture and gender sensitive. The State party should ensure that adequate numbers of female and male medical and health staff are employed and available to provide quality health services and appropriate medication, including for sexual and reproductive health.
66.Whilst noting that migrants received a hygiene kit with basic items for men and women, the SPT noted that only one shower room was functioning, requiring male and female migrants to take turns, and that toilets did not flush, rendering the hygiene conditions of the facility unsatisfactory.
67 . The SPT recommends that shower and toilet facilities be rep aired and regularly maintained.
68.An external caterer provided three daily meals. However, the SPT received complaints about insufficient food and water supply.
69 . The SPT recommends that water and food be available beyond the mere nutritionally required minimum.
70.The reception facility was expanded to a maximum capacity of 400 with additional mattresses in the recreational and eating space to accommodate the large number of arrivals the day the SPT visited. Everyone slept in the same hall with women on one side and men on the other. A group of unaccompanied boys that had arrived approximately two weeks earlier was moved to a second, smaller room. The SPT is of the view that mixed facilities should provide for adequate gender segregation ensuring sufficient privacy and protection from sexual and gender based violence.
71.Migrants could request to leave the premises during the day but unaccompanied children were not allowed to leave and there were no activities for them to engage in. The reception facility did not feature any outdoor recreational or personal space. The SPT is concerned that the migrants, who are not supposed to be held longer than 48 hours in this centre, on average remained at the facility for three to four days before they were transferred. The SPT found that, albeit exceptional, records evidenced that stays of up to 16 days had been registered. The SPT is further concerned that a group of unaccompanied children had been held there for approximately two weeks, complaining that they did not know why they were still there, how long they would still remain, that they had nothing to do or anywhere to play and were also worrying because they could not have regular contact with their families.
72.The SPT recognises the need for shelters to provide immediate assistance to newly arrived migrants and the logistical and resource challenges this may pose. However, the SPT also is aware that the numbers of yearly arrivals have been steady if not growing over the past few years and that the expectation is that this situation will continue. It can therefore not be considered an emergency. The SPT considers stays longer than 48 hours in these centres to be inappropriate as well as unlawful, given the lack of any legal basis.
7 3 . The SPT concludes that the combination of restricted freedom of movement, lack of personal, recreational and outdoor space, as well as unsatisfactory sanitary conditions render reception centres of this type ( of structure-to de lete ) inappropriate for periods longer than 48 hours.
7 4 . The SPT recommends that the State party:
( a) take effective measures to ensure that migrants are not held in such facilities beyond the legally permitted 48 hours;
( b) take particularly rigorous measures to ensure migrant children are not held in detention as it is never in the best interest of the child and constitutes a violation of the rights of the child;
( c) ensure that arrangements in the reception facilities effectively protect women from sexual and gender based violence.
3.Second line of reception
75.The SPT visited one CARA (Centro di Accoglienza per Richiedenti Asilo – Accommodation Centre for Asylum Seekers) in Bari and four CIEs (Centro di identificazione ed espulsione – Identification and Expulsion Centre) in Rome, Turin, Trapani and Bari. Normally, a CIE should not be considered a reception centre, as its purpose serves the expulsion of migrants. However, the SPT found that a number of migrants had been transferred directly to a CIE upon disembarkation and that some individuals held in CIEs were in procedures to seek protection. For this reason, the CIEs will be considered under this section.
76.As a starting point, the SPT was pleased to assess that the CARA it visited in Bari was not strictly speaking a place of deprivation of liberty, as asylum seekers were at their will to leave and shuttle services to Bari were at their disposal. The SPT found that there was a calm atmosphere at the CARA, despite the facility being crowded and at its full capacity of 1200 spaces. On average, people stayed approximately nine months until their asylum request was finally determined. Positive aspects included the availability of recreational spaces and activities, outdoor areas and places of worship. The SPT noted that the facility is located within a former military complex and that despite the relaxed environment, there was a high military presence, which it considered unnecessary and not adequate for the circumstances.
The SPT recommends that Italy reconsiders the need for militarisation of CARAs.
77.The SPT noted with concern the physical conditions, in particular the inadequate toilet facilities. Some toilets were not functioning, another had no doors and in general they were unacceptably dirty. In addition, they were located approximately at least five minutes walking distance away from the living quarters. The living quarters housed four persons, which was cramped for the size of the rooms.
78.The SPT recommends the toilet facilities to be repaired and maintained regularly to meet a minimum level of adequacy.
79.The SPT noted positively that three meals of sufficient quality and quantity were provided, taking into consideration dietary requirements and offering an element of choice. Asylum seekers could also use kitchen facilities to cook their own meals.
80.The SPT notes with concern that a heavily militarised security structure was maintained in all CIEs, characterised by a high presence of four structures (Guardia di Finanza, Carabinieri, National Police and the Army), as well as by the penitentiary-style organisation and methodology of surveillance and control, resembling a high security prison. The SPT regards this militarised approach, including weapons worn in a visible manner and the presence of dogs, as unnecessary and highly intimidating, especially considering that many migrants have suffered traumatising experiences in their countries of origin or during their journeys. The SPT welcomes information received during its follow-up visit that an agreement between the Ministry of Justice and the Ministry of Interior has been recently signed. This agreement aimed at treating the deportation procedures of persons while they were still in custody and it would allow for a more relaxed security policy in CIEs.
81.The SPT observed during the visit that facilities themselves added to the hostile environment as the compounds were divided into multiple enclosed sections and surrounded by various fences with barbed wire. The SPT considers this security structure to be completely unnecessary for the purposes of administrative detention. As an example, in some CIEs visited food and drinks vending machines were freely accessible during certain hours, but in others only upon request with a military escort. The SPT also emphasises that with the material, organisational, infrastructure and security structure of these facilities, they would be entirely inappropriate to be reconfigured and established as ‘hotspots’, failing to meet international human rights laws and standards required to prevent arbitrary detention, inhuman and degrading treatment. In this respect, the SPT welcomes information received during its follow-up visit that so far CIEs have not been used as ‘hotspots’.
82 . The SPT recommends that the State party:
( a) continue the scaling down process of its CIE facilities and shift s to a system of alternatives to detention, resorting to immigration detention only when expulsion is imminent and detention necessary and proportionate;
( b) ensure that all immigration detention facilities are demilitarised by removing intimidating security and surveillance infrastructure and reducing the level and number of armed military and law enforcement presence on the premises;
( c) ensure that all immigration detention facilities are reorganised to reflect the purpose of administrative detention, whereby interferences with individual autonomy are kept to a minimum, and any restrictions are strictly necessary to maintain security and order.
83.The SPT reiterates that any detention represents a serious infringement of a person’s right to liberty and has a deteriorating effect on a human being, impacting their right to a highest attainable standard of health and other related human rights. Immigration detention of children is never in the best interest of a child and always constitutes a violation of the rights of the child. The SPT noted positively, that children or families with children are not detained in CIEs, although an allegation was received in one CIE that a child was being detained subsequent to the discovery of its actual age.
8 4 . The SPT recommends that Italy ensure s that children are promptly identified and anyone claiming to be a child be treated as such until the contrary has been proven. Age determination processes should be a measure of last resort and be conducted by child protection officers in a prompt, child-friendly, gender sensitive manner. Where these processes are inconclusive, the benefit of the doubt should be afforded to the person being assessed.
85.The SPT noted that the language adopted to refer to the detention of persons in CIEs is likened to internment, reflecting the administrative nature of these centres. In reality, however, the structure and functioning of these facilities all but resembled an administrative detention setting.
86.The SPT found that migrants detained in CIEs fell broadly into three categories: a) individuals who had been convicted of a criminal offence, who had served a custodial sentence and were to be deported; b) migrants in an irregular situation who had been identified during spot checks; c) migrants in an irregular situation who had been rescued at sea.
87.Concerning the first category of detainee, the SPT was concerned to learn that most individuals had already served their full prison sentence but were allowed to be detained for a further 30 days due to practical obstacles in arranging the deportation to their countries of origin. The detention in the CIE was not connected to their original conviction. The SPT is aware that measures have been introduced to avoid this practice (such as an agreement signed between the Ministry of Justice and the Ministry of Interior) but at the time of the visit this group of migrants still made up the majority of detainees.
8 8 . The SPT regards the practice of placing persons who have completed their custodial sentence into immigration detention entirely inappropriate as it does not fulfil a legitimate purpose and represents de facto an additional punishment. The SPT recommends that Italy abolishes this practice of holding convicted migrants in immigration detention.
89.The SPT was concerned to learn that the second category of migrants also included individuals who had previously already been detained in a CIE for the purpose of expulsion. The SPT was made aware that if after 90 days an expulsion could not be carried out, the migrant would receive the expulsion order and be told to leave the territory. However, the practical obstacles preventing his/her return, such as lack of identity or travel documents, still persisted, making his/her return unviable. These migrants then remain in the territory and run the risk of being detained in a CIE yet again. It is the view of the SPT that this system is impracticable, as it also detracts from the fact that many of these migrants have family ties and jobs, sometimes already for many years, be it regularly or irregularly. Firstly, this puts in question the actual ‘risk of escape’ as a justification for their detention. Secondly, if a migrant had already been detained and his/her expulsion not successfully carried out, it is questionable whether an additional detention period would serve to remove the practical obstacles and effectuate the deportation. In addition, the SPT notes the considerable impact expulsion can have on migrants’ mental health. In such instances, the State Party may wish to consider in more detail the administrative circumstances that led to the individual’s irregular status and placing them in administrative detention.
90 . The SPT recommends that Italy:
( a ) reconsider its practice of detaining migrants who have been living and working in Italy and provide s alternatives to detention, in particular where the necessity and proportionality of immigration detention does not correspond with any real risk of escape;
( b) abolish its practice of detaining migrants previously held in immigration detention for the same purposes, unless expulsion is imminent and there is a real risk of escape.
91.Migrants in an irregular situation who had arrived by boat via the Mediterranean represented the third category. This included asylum seekers whose claim was unsuccessful or individuals who were not entitled to other forms of temporary protection. The SPT noted with concern that also groups of individuals, usually of the same nationality, had been transferred to the CIE directly from the port of disembarkation. This is problematic at two levels as the practice indicates possible collective detention and risks contravening the prohibition of collective expulsion. There should be an individual assessment to determine the necessity and proportionality of each migrant’s detention. The SPT did not find that such individual determinations were adequately integrated into the decision-making processes. Secondly, as highlighted above (PARAS no.), the SPT is aware that during disembarkation, no questions are asked to assess whether a migrant is at particular risk or seeking protection. The SPT emphasises that each person must be afforded an individualised examination of all arguments militating against his or her expulsion in order to avoid collective expulsions, violations of the principle of non-refoulement and the prohibition of discrimination.
9 2 . The SPT recommends that Italy ensures that direct transfers from disembarkation to CIEs are avoided and the presumption against detention is upheld. It should further ensure that individual assessments are carried out for all migrants arriving by sea without discrimination of any kind.
93.The physical conditions in the CIEs varied but they were generally substandard, sometimes considerably so. The SPT observed filthy mattresses; some had no sheets and a number of detainees suffered from sores and scabies. The toilets and showers were generally in poor condition as well: in a state of disrepair, dirty, or lacking warm water. Within the CIEs the cells were of varying standards, with one or two fitted with a television or an air conditioner and more spacious, while the majority of cells were small and did not feature any of these furnishings.
9 4 . The SPT recommends that Italy guarantee that each CIE is able to swiftly ensure its shower and toilet facilities are repaired and regularly maintained and that mattresses and bedding meet adequate hygiene standards.
95.The SPT regards the food provided in the CIEs to be of poor standards. In addition, the SPT notes the stark contrast in provision of food between CIEs and the CARA inspected in Bari. The SPT fails to recognise any reasonable justification for the difference in standards.
9 6 . The SPT recommends that Italy ensure that meals provided are of adequate quantity and quality in all CIEs and migrants are provided comparable standards in water and food regardless of their status and pl ace of detention or reception.
97.Migrants could have access during certain hours to their personal belongings that were centrally stored. They could only keep their phones on them if they destroyed the camera on it for security reasons. Many items, such as books, pictures, posters and pens, were prohibited as a safety policy, without an individual risk assessment being carried out. However, the SPT noted that this rule was not applicable in all CIEs, raising questions as to its necessity in others.
98.Recreational spaces and activities were limited in all CIEs. All had outdoor and indoor spaces and a number of structured activities were offered, such as arts and crafts classes. However, migrants were rarely aware of the availability of any organised activities. Where they did participate, migrants voiced their frustration at not being allowed to keep the artwork. The exercise yards lacked equipment and could not serve their purpose and green areas were sparse if at all existent. Overall, the SPT found that the recreational spaces lacked the facilities for conducting any meaningful recreational, cultural or physical activities.
99.The SPT found that the negative impacts of detention on the well-being of migrants were exacerbated by the limitations placed on their autonomy and inability to engage in any recreational, cultural or physical activities. The SPT was made aware of a regulation containing common standards to be applied across all the CIEs. However, this was not being implemented in practice, resulting in differential treatment without individual risk assessments or other reasonable and objective justifications.
100.The areas for visitors in the CIEs provided limited privacy. In the CIE holding both men and women, couples were held separately and the only meeting space was the visitors’ room, during scheduled hours.
101 . The SPT recommends that the State party ensure that:
( a) common standards are applied across all CIEs;
( b) all immigration detention centres are equipped with adequate recreational, physical and cultural facilities, to which migrants have effective access;
( c) there is sufficient privacy for migrants to receive visitors o r for couples who are detained.
102.An infirmary was located in all the CIEs. Irregular migrants habitually received a medical check upon arrival. The SPT heard reports that these check-ups were carried out in a rather perfunctory manner. The SPT is concerned that this impedes the identification of victims of sexual abuse, violence or torture.
103.Medics in CIEs maintained a record of all migrants and the treatment they received. Psychologists were not employed in all CIEs. Where there were psychologists, they did not provide individualised psychological medical care, but rather engaged with migrants through art classes, helping to distract them. The SPT witnessed migrants in distress, who also expressed that they suffered from lack of or difficulties sleeping. The SPT is concerned that many individuals who have experienced trauma and violence are not receiving appropriate mental health care.
10 4 . The SPT recommends that the State party:
( a) ensure that it appropriately fulfils its duty to identify victims of torture, sexual abuse, violence or trauma and to provide adequate and appropriate physical and psychological medical care and protection ;
( b) ensure effective and prompt access to individualised mental health care, taking into account gender, age and culture specific needs.
105.The SPT observed the transfer of migrants from the CIE in Rome to the bus, which was to transport them to the expulsion aircraft. The SPT was informed that this was a joint FRONTEX forced expulsion operation of Nigerian nationals. The SPT regrets that officers on the ground were not adequately informed of their obligations in relation to the mandate of the SPT, which impeded the SPT from fulfilling its mandate according to OPCAT, Article 11. In particular, the SPT was denied access to places of detention, which included the buses on which migrants were to be transferred to the aircraft, as well as the airport itself.
106 . The SPT reminds Italy of its obligations under OPCAT, Article 12(a), by which it must undertake to ensure the SPT can fulfil its mandate.
107.The SPT recognises that Italy has legitimate immigration detention objectives and is entitled to take certain measures in pursuit of border control, law enforcement and migration management objectives. However, the policies and procedures applied must be in conformity with Italy’s human rights obligations, regardless of which authorities perform these measures and where they take place within Italy’s jurisdiction.
108.The SPT is deeply concerned about the manner in which the forced expulsion was conducted and considers it constituted inhuman and degrading treatment and violated Italy’s human rights obligations for the following reasons:
(a)Migrants subjected to expulsion as well as the remaining CIE inmates displayed clear signs of suffering extreme stress, anxiety and fear throughout the forced expulsion. In interviews, migrants described how everyone had been treated ‘like animals’ and some had difficulties sleeping due to the lack of certainty, absence of information and constant fear of being expelled;
(b)Migrants had been unaware that they would be expelled and many were still involved in legal procedures to determine their entitlement to remain;
(c)Regardless of whether migrants resisted officers or not, their hands were tied tightly with black Velcro handcuffs. Those who resisted were severely restrained and dragged by their hands and feet to the bus;
(d)Agitated police dogs were barking during the transfer to the bus, adding to the intimidating environment;
(e)There were migrants who collapsed, were carried away under sedation and wheeled out unconscious on a medical trolley. Although migrants must undergo a medical test to assess their fitness for travel, the SPT was concerned at the attempt to transfer one person who was evidently unfit to travel;
(f)Despite women constituting the majority of persons to be expelled, they were carried by male officers, often in a degrading manner.
109.The SPT was made aware that the management of the CIEs are not provided more than a few hours’ notice and are not allowed to inform migrants of the expulsion operations, obstructing their ability to support detainees and maintain a calm environment.
110.The SPT also heard reports that court orders to suspend expulsion had been granted to some migrants, but had not yet been physically delivered to the Questura, who therefore did not recognise their validity. One woman was granted the right to remain after she had already been transported to the airport. She was returned to the CIE to be released the next day, having undergone tremendous stress which would have been avoidable.
111.The SPT considers that the lack of suspensive effect in ongoing legal procedures and of timely access to information regarding the expulsion renders migrants’ due process rights[,][and] right to an effective remedy ineffective.
112.The procedures by which forced expulsions are conducted and the methods that are applied undermine the effective prevention and heighten the risk of future expulsions violating the right to freedom from torture, cruel, inhuman or degrading treatment. The SPT reminds the State Party that international human rights law requires the conditions for the use of force to be set out in law and only if strictly necessary and proportionate.
113.The SPT further notes that voluntary returns are to be preferred and encourages Italy to use forced expulsions as a measure of last resort only. The SPT emphasises that any consent to voluntary return processes should be informed and given free of coercion, such as the prospect of detention in inadequate conditions.
11 4 . The SPT urges Italy to review its expulsion procedures and that it:
( a) reconsider its legislation to ensure due procedural guarantees, including the automatic suspensive effect of appeals against removal orders;
( b) remove any administrative obstacles that render migrants’ due procedural guarantees ineffective;
( c) ensure that expulsion or rejection orders are provided in writing in a language the migrant is known to understand and that migrants are informed about their rights to appeal the decision and have effective access to legal assistance and have a reasonable amount of time to challenge the order;
( d) ensure that migrants are informed in a timely manner of the expulsion date and procedures that will be followed;
( e) ensure that the management at the CIE is informed in a timely manner of the expulsion date;
( f) ensure that expulsion procedures are interrupted where they would endanger the safety and dignity of the migrant;
( g) ensure that all actors involved in expulsion operations in Italy do not resort to unlawful or disproportionate use of force. Any forms of physical restraint used must be demonstrated to be strictly necessary and proportionate to the resistance of each individual and respect their dignity;
( h) ensure that officers carrying out an expulsion comprise an adequate number of persons of the same sex as the migrants;
( i ) ensure that no migrant is removed unless they are medically fit to travel;
( j ) ensure that the use of tranquillizers, sedatives or other medication to facili tate deportation is prohibited.
IV.Repercussions of the visit and final remarks
115 . In accordance with OPCAT, Article 15, the Subcommittee calls upon Italy to ensure that there are no reprisals following the Subcommittee’s visit. To this end, the Subcommittee requests the State Party to provide detailed information in its reply on what it has done to prevent potential reprisals against anyone who provided i nformation to the Subcommittee.
116 . The Subcommittee recommends that, given the preventive effect of such a measure, the State make this report publi c, as already mentioned in para graph 5 . In addition, the Subcommittee recommends that the State distribute this report among the relevant institutions in all branches of government.
11 7 . The SPT recalls that this report represents only the first stage of a constructive dialogue with the Italian authorities on the above-mentioned issues. The SPT requests that the State party replies in writing, within six months of the date of the transmission of this report, giving a full account of the actions taken and proposed to be taken, to implement its recommendations.
List of Government officials and other persons with whom the Subcommittee on Prevention of Torture met
Ministry of Justice
Gennaro Migliore, Undersecretary of State
Alfredo Durante Mangoni, Diplomatic Counsellor of the Minister of Justice
Olga Mignolo, Head of the Office for Coordination of International Activities, Ministry of Justice
Linda D’Ancona, Judge at the Legislative Office of the Ministry of Justice, Ministry of Justice; Member of the Inter-ministerial Committee for Human Rights (CIDU)
Roberto CalogeroPiscitello, Director General of the Department of Penitentiary Administration
Roberta Palmisano, Department of Penitentiary Administration
Alessandra Bernardon, Department of Penitentiary Administration
Roberta Parmisano, Department of Penitentiary Administration
Mauro Palma, National Guarantor for the rights of persons detained and deprived of their liberty
Ministry of Defence
Stefano Cotugno, Legislative Office
Ministry of the Interior
Domenico Manzione, Undersecretary of State
Maddalena De Luca, Head of the Secretariat of the Undersecretary of State
Daniela Pugliese, Cabinet of the Minister of Interior Giovanni Pinto, Department of Public Security
Raffaella Renzi, Department of Public SecurityMariacarla Bocchino, Department for Public Security, Ministry of the Interior; member of the Inter-ministerial Committee for Human Rights (CIDU)Alida Gallo, Department for Civil Liberties and Immigration
Luigino Amorosa, State Police Lieutenant Colonel within the Border division, Ministry of the Interior
Maria Carla Bocchino, Department of Public Security
Carmen Cosentino, Department for Civil Liberties and Immigration
Agnese di Napoli, Central direction on immigration and border police
Massimiliano Mormone, Central direction on immigration and border police
II.Interministerial Committee for Human Rights (CIDU)
Gianludovico De Martino Di Montegiordano, Chairman of the CIDU
Mariacarla Bocchino, Department of Public Security, Ministry of the InteriorPierfrancesco De Cerchio, Governamental Focal Point
The Association Antigone
The Italian Coalition for Rights and Civil Liberties (CILD)
International Federation of the Action by Christians for the abolition of torture (FIACAT)
Jesuit Refugee Service Italy - Centro Astalli
United National High Commissioner for Refugees (UNHCR)
International Organization for Migration (IOM)
List of places of deprivation of liberty visited by the Subcommittee on Prevention of Torture
Centro di identificazione e espulsione (CIE) Ponte Galeria, Rome
Centro di identificazione e espulsione (CIE) of Trapani
Centro di Soccorso e prima accoglienza of Pozzano
Centro di identificazione e espulsione (CIE) of Turin
Centro di accoglienza per richiedenti asilo (CARA) of Bari
Centro di identificazione e espulsione (CIE) of Bari