Personal liberty in an inalienable right. Sometimes somebody remembers. For sure, the justice of the peace of Palermo, Giuseppe Alioto, has never forgotten this, and in a sentence of last July 4th he expressly condemned as illegal and even unconstitutional the practice of arbitrary detention of the Tunisians in the reception centre of Lampedusa. It’s the first sentence of this kind since the reception centre of the island was turned into a prison, for all intents and purposes, last April.
And it’s a big blow for the Italian government, which on the state of exception has built its entire policy regarding the Tunisian repatriations. But this time the violations are too big to pretend nothing is happening. Hicham Boughanmi, the claimant, represented by attorney Barbara Cattelan from the bar of Torino, was detained for 10 days, from May 6th to May 16th, in the island’s reception centre, to be then transferred to the centre for identification and expulsion (Cie) of Turin with a measure to ‘defer push-back decision’. The appeal starts there. In those 10 days of detainment on the island, which no judge ever validated. According to the defence, that was an unlawful detention, and was an obvious violation of article 3 of the Italian constitution and of article 5 of the European Convention on human rights.
Judge Alioto shares the thesis of the defence, explaining that ‘in the case being examined we are witness to the de facto custody of a foreigner, in conditions of restriction and/or limitation of personal liberty not upheld by any measure motivated by the judiciary authority, in obvious violation of article 13 of the Italian Constitution for an indefinite period of time referred to the broad discretion of the public administration’.
Hicham Boughanmi in the meantime was expelled. They loaded him onto an airplane for Tunis on July 4th. On the same day in which in Palermo judge Alioto was writing his sentence, which annulled his decree of expulsion. But at least justice was done. The justice of the peace of Palermo wrote black on white that his had been an unjust detention and that it was- we would add- false imprisonment. And this is an extremely important precedent.
We advise lawyers throughout Italy to download judge Alioto’s sentence and to study it in detail. Though another issue remains open, the issue of jurisdiction. In other words: where are the appeals against deferred push-back decisions supposed to be presented? To the ordinary judge or to the Tar (Administrative Regional Court of Law)?
Judge Alioto has claimed entitlement to the case, as it was a case of evident ‘coercion of personal liberty’. But it is an exception. Because almost all other justices of the peace, when faced with appeals against differed push-back decisions, avoid issuing a sentence, referring the case to the Tar, which then does not get involved in the matter, sending the case back to the justices of the peace.
So the next challenge for lawyers should be exactly this. To present an appeal for the regulation of jurisdiction in front of the Cassazione (Italian Supreme Court), so that the decision of who is to be the competent judge for such appeals can be clarified once and for all. And at that point, to present in a systematic way hundreds and thousands of appeals similar to that of Boughanmi. So that the judges can put the state of law back on track, which at this point, along the borders, has derailed.
All you have to do is think about the thousands of Tunisians who this year were falsely imprisoned by the Italian State, for entire weeks, in the reception centres of Lampedusa, Pantelleria, Porto Empedocle, Salinagrande, as well as on the ships bound for their marshalling in Italy. And the same can be said for the Egyptians falsely imprisoned in the warehouse of Pozzallo, where last week a revolt broke out.
For all of them, and we’re talking thousands of people, we’re looking at false imprisonment. In other words, thousands of men and women deprived of their personal freedom without a valid reason and especially without validation from a judge.
Breaking this perverse state of exception from the base would mean blocking policies of collective and indiscriminate repatriations taken forward by this government. And more generally, eradicating at birth that extremely dangerous culture by which law is a rod between the wheels, and the state of exception the fastest and most functional way.
translated by Camilla Gamba