CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 mars 2023

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border:0.75pt solid #949494; padding:1.02pt 5.03pt } .s4EF8931A { width:30.8%; border:0.75pt solid #949494; padding:1.02pt 5.03pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s4AA8B09A { margin-top:6pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s391E78BA { font-family:Arial; background-color:#ffffff }     FIRST SECTION CASE OF J.A. AND OTHERS v. ITALY (Application no. 21329/18)   JUDGMENT   Art 3 (substantive) • Inhuman and degrading treatment • Tunisian sea-migrants detained in hotspot centre for ten days in poor material conditions Art 5 §§ 1 (f) , 2 and 4 • Arbitrary deprivation of liberty to prevent unauthorised entry into country • Detention without clear and accessible legal basis and in absence of reasoned decision • Applicants not informed of legal reasons of detention • Inability to challenge lawfulness of de facto detention owing to lack of sufficient information Art 4 P4 • Prohibition of collective expulsion of aliens • Removal to Tunisia without proper regard to applicants’ individual situations when issuing refusal-of-entry and removal orders   STRASBOURG 30 March 2023   FINAL   30/06/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of J.A. and Others v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Péter Paczolay,   Krzysztof Wojtyczek,   Lətif Hüseynov,   Ivana Jelić,   Gilberto Felici,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   21329/18) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Tunisian nationals (“the applicants”) on 26 April 2018; the decision to give notice to the Italian Government (“the Government”) of the complaints concerning Article 3, Article 5 §§ 1, 2 and 4 and Article   13 of the Convention and Articles 2 and 4 of Protocol No. 4 to the Convention, and to declare inadmissible the remainder of the application; the decision not to disclose the applicants’ names; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by L’altro diritto, the World Organisation Against Torture and the Tunisian Forum for Economic and Social Rights (FTDES), organisations which were granted leave to intervene by the President of the Section; Having deliberated in private on 7 March 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicants’ detention in the hotspot on the island of Lampedusa at Contrada Imbriacola, their poor conditions of stay and their forced removal to Tunisia. The Early Reception and Aid Centre ( Centro di Soccorso e Prima Accoglienza ) on Lampedusa was designated as one of the Italian hotspots pursuant to Article 17 of Decree-Law no. 13 of 17   February 2017. THE FACTS 2.     The applicants were born on the dates indicated in the appended table and live in Tunisia. They were represented by Ms L. Leo and Ms L. Gennari, lawyers practising in Rome. 3.     The Government were represented by their Agent, Mr   L.   D’Ascia. 4.     The facts of the case may be summarised as follows. THE APPLICANTS’ STAY IN THE LAMPEDUSA HOTSPOT 5.     The applicants left the Tunisian coast on 15 October 2017 aboard makeshift vessels in order to reach a larger boat carrying about a hundred people. After a few hours of sailing, following an emergency at sea, they were rescued by an Italian ship which took them to Lampedusa on 16   October 2017. They submitted that they underwent a medical check-up. Some of them received a flyer containing general information regarding unaccompanied minors and asylum procedures. The applicants stated that they had been unable to fully understand the content of the said documents. They then underwent identification procedures. 6.     The applicants remained in the Lampedusa hotspot for ten days, during which it was allegedly impossible for them to interact with the authorities. They stated that they had been unable to leave the centre lawfully during that period and that they had done so a few times by going through an opening in the fence which surrounded the centre. The applicants described the material conditions at the centre as inhuman and degrading. THE APPLICANTS’ REMOVAL TO TUNISIA 7.     In the early morning of 26 October 2017 the applicants and some forty other individuals were woken up by the Italian authorities. They were told to undress, were searched and were then transferred by bus to Lampedusa Airport. 8.     There, the applicants were asked to sign some documents of which they allegedly did not understand the content or receive a copy, and which they subsequently found out were refusal-of-entry orders issued by the Agrigento police headquarters ( questura ). The applicants’ representatives submitted a request to the police headquarters to obtain a copy of those documents. Only the copies concerning the first two applicants were provided to them; the requests submitted with regard to the third and fourth applicants on 15   February 2018 and 26 March 2018 went unanswered. The refusal-of-entry orders issued in respect of the first two applicants were dated 26   October 2017. 9.     The Government stated that the refusal-of-entry orders had been duly served on the applicants, who had signed a receipt and been provided with a copy of it. The Government also pointed out that the refusal-of-entry orders included the information that it was possible to challenge the decisions in question before the Agrigento District Court within thirty days of them being notified of them. 10.     The applicants were then searched again, their wrists were secured with Velcro straps, and their mobile phones were taken away from them. They were transferred to Palermo by airplane, and the straps were removed during that flight and put back on again at Palermo Airport. 11.     Once there, the applicants met a representative from the Tunisian consulate who recorded their identities and, on the same day, 26   October 2017, they were forcibly removed to Tunisia by airplane. RELEVANT LEGAL FRAMEWORK DOMESTIC LAW AND PRACTICE The Constitution 12.     Article 13 of the Italian Constitution reads as follows: “1.     Personal liberty is inviolable. 2.     No one may be detained, inspected, or searched, or otherwise subjected to any restriction of personal liberty, except by a reasoned order of a judicial authority and only in such cases and in such manner as provided by law. 3.     In exceptional circumstances and under such conditions of necessity and urgency as shall be precisely defined by law, the police may take provisional measures that shall be referred within forty-eight hours to a judicial authority and which, if not validated by the latter in the following forty-eight hours, shall be deemed withdrawn and ineffective. 4.     Any act of physical or mental violence against persons subjected to a restriction of personal liberty shall be punished. 5.     The law shall establish the maximum duration of any preventive measure of detention ( carcerazione preventiva ).” Decree-Law no. 416 of 30 December 1989 13.     The relevant provision [1] of Decree-Law no. 416, entitled “Urgent measures concerning political asylum and stay of non-EU citizens and regularisation of non-EU citizens and stateless persons present on the national territory”, converted with modifications by Law no. 39 of 28 February 1990, reads as follows: Section 1- sexies – Reception and Integration System “(1)     The administrative local entities which provide reception services for refugees ( titolari di protezione internazionale ) and for non-accompanied foreign minors ... may also receive in their facilities, provided space is available, international-protection seekers ...” Legislative Decree no. 286 of 25 July 1998 [2] 14 .     The relevant provisions of the Consolidated text of provisions concerning immigration regulations and rules on the status of aliens, as amended, inter alia , by section 17 of Decree-Law no. 13 of 17   February 2017, converted into Law no.   46 of 2017, read as follows: Article 10 (refusal of entry) “1.     The border police shall refuse entry to aliens who seek to cross the border without meeting the conditions laid down in the present consolidated text governing entry into the territory of the State. 2.     Refusal of entry and removal orders shall, moreover, be ordered by the chief of police in respect of aliens: (a)     who have entered the territory of the State by evading border controls, when they are arrested on entry or immediately afterwards; (b)     or who in the circumstances referred to in paragraph 1, have been temporarily allowed to remain for purposes of public assistance. 2- bis.     The validation procedures and provisions set out in Article 13, paragraphs 5- bis , 5- ter , 7 and 8 shall apply to the refoulement measure referred to in paragraph 2. [3] 4.     The provisions of paragraphs 1, 2 and 3 and those of Article 4, paragraphs 3 and 6, do not apply to the situations provided for in the applicable provisions governing political asylum, the grant of refugee status, or the adoption of temporary protection measures on humanitarian grounds.” Article 10- ter (provisions concerning the identification of illegal aliens found on the national territory or rescued during rescue operations at sea) “1.     Aliens found illegally crossing the internal or external borders or having entered the national territory following rescue operations at sea shall be directed, for rescue and first-aid needs, to special crisis centres ( punti di crisi ) set up within the facilities referred to in Decree-Law no. 451 of 30 October 1995, converted with modifications into Law no. 563 of 29 December 1995, and to facilities referred to in Article 9 of Legislative Decree no. 142 of 18 August 2015. The taking of identification photographs and fingerprints ( fotosegnalamento ) shall be carried out within the same facilities ... and information shall be provided concerning international-protection procedures, the relocation programme to other EU States and the possibility of voluntary assisted repatriation. 2.     The taking of identification photographs and fingerprints shall be carried out, in fulfilment of the obligations referred to in Articles 9 and 14 of Regulation (EU) No.   603/2013 of the European Parliament and of the Council of 26   June 2013, also in respect of aliens found to be on the national territory unlawfully. 3.     The repeated refusal of an alien to consent to the examinations referred to in paragraphs 1 and 2 constitutes a risk of absconding which allows the alien to be detained in the centres referred to in Article 14. That detention is ordered on a case-by-case basis, by decision of the chief of police, and is valid up to thirty days from its adoption, unless the need for which it was accorded ceases before that time. The provisions of Article   14, paragraphs 2, 3 and 4, apply. In the event of detention concerning an asylum-seeker ... validation of the relevant order falls under the jurisdiction of the district court where the section specialising in immigration, international protection and free movement of citizens of the European Union is located. ...” Article 14 (execution of removal measures) “1.     Where ... it is not possible to ensure the prompt execution of the deportation measure, by escorting the person to the border, or of the refusal-of-entry measure, the chief of police shall order that the alien be held for as long as is strictly necessary at the nearest Identification and Removal Centre, among those designated or created by order of the Minister of the Interior in collaboration ( di concerto ) with the Minister for Economics and Finance. To this end the chief of police applies for the relocation of the aliens to the Central Direction of Immigration and of the Border Police of the Public Security Department of the Ministry of the Interior. Among the reasons justifying detention, in addition to [the risk of absconding], there is also the need to provide assistance to the alien, to conduct additional checks of his or her identity or nationality, to obtain travel documents, or on account of the lack of availability of a carrier. ... 2.     The alien shall be detained in the facility, in which adequate hygienic and living standards are guaranteed, with procedures in place to ensure the provision of necessary information concerning his or her status, assistance and the full respect of his or her dignity ... 2- bis .     The detained alien can address requests or complaints ... to the National Guarantor or to the regional or local Guarantors of the right of people deprived of personal liberty. 3.     The chief of police of the place where the centre is located shall transfer a copy of the documents to the competent justice of the peace for validation without delay and, in any event, no later than forty-eight hours after the adoption of the decision. 4.     The validation hearing takes place before the judge sitting in private with the compulsory participation of a lawyer informed in a timely fashion. The person concerned will also be informed in a timely fashion and brought to where the judge is holding the hearing. ... The judge shall validate the decision within forty-eight hours in a reasoned decision ... 7.     The chief of police shall take effective supervisory measures, through the use of law-enforcement agencies, to ensure that the alien does not unlawfully leave the centre and, in the event the measure is violated, shall reinstate detention by adopting a new detention order. ...” Legislative Decree no. 142 of 18 August 2015 15.     This Decree implemented Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (the “Asylum Procedures Directive”) and Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (the “Reception Conditions Directive”) (see paragraphs 30-31 below). The relevant Articles state as follows: Article 1 – Objective and applicability “1.     The present decree regulates the reception of non-EU countries’ citizens and of stateless persons asking for international protection within the national territory, including border and transit zones, as well as in international waters. [These measures also apply to] their family members, included in their international protection request. 2.     The reception measures regulated by the present decree apply as from the moment [the alien] demonstrates the intention to ask for international protection. ...” Article 6 – Detention ( trattenimento ) “1.     An asylum-seeker can only be detained for the purpose of examining his or her request. 2.     The asylum-seeker shall be detained, where possible, in dedicated spaces, in the centres regulated by Article 14 of Legislative Decree no. 286 of 25 July 1998, on the basis of a case-by-case evaluation ...” Article 8 – Reception system “1.     The reception system of international-protection seekers is based on the cooperation of the government entities concerned ... 2.     Early aid functions are carried out in the centres referred to in Article 9 ... below, while rescue and identification procedures of aliens illegally entering the national territory are governed by Article 10- ter of Legislative Decree no. 286 of 25   July 1998. 3.     International-protection seekers are received, provided space is available, in the Reception and Integration System facilities provided for in section   1- sexies of Decree-Law no. 416 of 30 December 1989, converted with modifications by Law no. 39 of 28   February 1990.” Article 9 – First reception measures “1.     In order to satisfy first reception needs and to ensure the first steps to determine an alien’s legal position, the alien shall stay in governmental first reception centres established by decree of the Minister of the Interior ... 4.     Upon being informed by the mayor of the municipality where the reception centre is located and upon consultation with the Department for Civil Liberties and Immigration of the Ministry of the Interior, the Prefect will send the [asylum] seeker ( richiedente ) to the facilities referred to in paragraph 1. The [asylum] seeker will stay there throughout the time necessary for his or her identification ... the drafting and the early examination of the asylum request ... 4- bis .     Once the procedures regulated in paragraph 4 have been carried out, the [asylum] seeker is transferred to the facilities provided for in section 1- sexies of Decree-Law no.   416 of 30 December 1989, converted with modifications by Law no. 39 of 28   February 1990, provided space is available ...” Article 10 § 2 – Reception procedures “Migrants are allowed to leave the centre during the daytime ... but must return to the centre at night. An [asylum] seeker can ask the Prefect for a temporary leave of absence from the centre for a period differing from or longer than [the above-mentioned] period, for relevant personal reasons or for reasons related to the examination of his or her [asylum] request. A decision to reject the requested authorisation shall be reasoned and notified to the person concerned ...” Article 11 – Extraordinary reception measures “1.     In the event of there being no space available in the centres referred to in Article   9, owing to numerous and frequent arrivals of asylum-seekers, reception can be organised by decision of the Prefect, upon consultation with the Department for Civil Liberties and Immigration of the Ministry of the Interior, in temporary, specially set up, facilities, subject to evaluation of the health situation of the person concerned, also with the aim of assessing special reception needs. ... 3.     Reception in facilities referred to in paragraph 1 is limited to the time strictly necessary to transfer the asylum-seeker to the Reception and Integration System facilities referred to in section 1- sexies of Decree-Law no. 416 of 30   December 1989, converted with modifications by Law no. 39 of 28 February 1990 ...” Article 12 § 1 – Material reception conditions “The tender scheme for providing goods and services pertaining to the functioning of the facilities regulated by Article 6 and Article 8, paragraphs 2, 9 and 11, shall be adopted by decree of the Ministry of the Interior and organised in such a way to guarantee uniform levels of reception within the national territory, depending on the specificities of each centre.” Roadmap of the Ministry of the Interior of 28 September 2015 16.     The relevant passage of this report, adopted in response to the European Agenda on Migration, reads as follows: “As from September 2015, four seaport areas have been identified as hotspots (Pozzallo, Porto Empedocle, Trapani and Lampedusa). Each hotspot is equipped with first reception facilities with an overall capacity of 1,500 places and it is aimed to carry out pre-identification, registration, taking of identification photographs and fingerprinting there. The setting-up of two more hotspots is planned before the end of 2015 in Augusta and Taranto with the aim of creating 2,500 hotspot places ... After health checks, pre-identification, intelligence and investigative activities and depending on the relevant results, migrants requesting international protection are to be transferred to the relevant regional hubs set up on the national territory. Migrants who should be relocated are also transferred to relevant national hubs and irregular migrants who do not request international protection are to be transferred to Identification and Expulsion Centres ( centri di identificazione ed espulsione ).” National Guarantor of the rights of people detained or deprived of their liberty “Report on the visits to the Italian Identification and Expulsion Centres and hotspots (2016-17: first year of activity)” 17 .     The relevant parts of this report read as follows: “... The visits to the hotspot [of Lampedusa] were carried out on ... 3   October 2016 and 14 January 2017 ... Structure: The Lampedusa hotspot is in the premises of the former Identification and Expulsion Centre (CIE) ... Therefore, it maintains all the characteristics of a CIE, with bars, gates and metal fences. The general conditions are shabby and run down. The only common areas are concrete shelters with concrete benches where newly arrived migrants wait to be identified and photographed ... Dormitories consist of rooms equipped with twelve beds, some of them bunk beds, and further mattresses on the floor, some rooms thus containing up to thirty-six beds. The sleeping areas are large rooms where the beds are set out side by side, without any furniture in which to stock personal belongings ... The foam mattresses often lack bedding (sheets are made of paper and are distributed periodically so, if they break, people are left with none) ... Migrants are not allowed to leave the hotspot even after they have been identified and identification photographs and fingerprints have been taken, contrary to what happens, for example, in the Taranto hotspot where, after [those identification measures have been taken], migrants receive a badge which enables them to leave the centre ... When asked why guests were not allowed to leave the Lampedusa centre, the Prefect explained that the island relied on revenue from tourism and that their presence could create problems. However, he added, if they wanted, they could leave through an opening in the fence ... The Guarantor delegation were present at a disembarkation [which took place in January 2017] ... The first step [is] pre-identification which consists in the collection of the aliens’ personal details. First, the aliens were interviewed by cultural mediators, who cooperate with the police and provide migrants with useful information for filling out the information sheet ( foglio notizie ) ... The mediators wrote down the answers on small, pre-printed sheets of paper [a sort of label] where the information to be collected (personal data and nationality) was set out – the reason for the [aliens] fleeing [their country] was not listed on the pre-printed form, however the mediators nevertheless noted it as a [supplementary] note on the side of the sheet. This label was filled in for each foreigner with an indication of the general data relating to each person interviewed. Then, the foreigners were brought one at a time before two police officers who, with the help of a cultural mediator, proceeded to complete the collection of information relating to pre-identification and inserted the data in an electronic database. At the end of this further interview, a blank information sheet ( foglio notizie ) where the upper part was overlapped by the small [sort of label] mentioned above was submitted by the mediator to the foreigners for signature. The police officers then proceeded to the actual filling in of the foglio notizie which had already been signed by the migrant. Therefore, migrants were signing a completely blank sheet without having previously filled it in and having no guarantee that what was declared was actually understood and reported in the documents as they intended it to be. It should also be noted that, at least in the cases observed by the delegation, the annotation of the reason for the aliens having fled [their country] added to the side of the small pre-printed [label], which was stuck on the information sheet, was provided in Italian. The National Guarantor immediately expressed his strongly negative opinion to the police authorities concerning this way of proceeding and indicated that such a procedure was unacceptable in view of its clear implications on migrants’ future and that it could not be justified by any need for speed and simplification. The National Guarantor therefore recommends interrupting the practice consisting in the migrants signing the foglio notizie and that any document requiring a signature, including the content of any data entered by the cultural mediator, should in all circumstances be written in a language that the alien understands. ... The migrants’ deprivation of liberty is considered to be unjustified and illegitimate. While reiterating the need to establish a clear regulatory framework of the legal nature of hotspots, the National Guarantor recommends ceasing the practice of depriving the foreigners staying in the Lampedusa hotspot who have had identification photographs and fingerprints taken of their personal liberty and allowing them to leave the centre. Even at the end of the formalities related to the identification process, migrants staying in the Lampedusa hotspot are not allowed to leave the centre. This entails a deprivation of personal liberty not governed by a primary source of law, nor subjected to the scrutiny of a judicial authority, thus entailing that the hotspot constitutes a sort of limbo of legal protection, in which people are de facto detained without any judicial assessment and without the possibility of appealing to a judicial authority ... The meals are prepared and packed to be distributed in the kitchen of the centre, which appeared to the delegation to be clean and tidy, however, inside the centre there is no canteen, nor tables and chairs to be used during the meal ... The absence of common rooms, clearly stemming from the hotspot’s purpose as a first reception facility in which to offer refreshment to people who have just landed in a very limited period of time, reveals the material inadequacy of the centre in view of the actual length of people’s stay. According to the delegation, the aim is to reduce the time spent at the hotspot to a maximum of two to three days, however, this is made difficult owing to the variability of weather conditions that affect the practicality of sea transport. Based on the data provided to the National Guarantor ... it appears that both adults and minors remain in the Lampedusa hotspot for an average of fifteen days. ...” Report to the Italian Parliament 2018 18 .     The relevant passages of this report read as follows: “Despite their specific provision in a legal text (Article 10- ter of Legislative Decree no. 286 of 25 July 1998), the legal nature of hotspots is still uncertain ... If on the one hand they appear to be humanitarian first aid centres where assistance, information and first reception activities are provided to asylum-seekers, on the other hand pre-identification and police procedures consisting in taking identification photographs and fingerprints are carried out on the premises and forced repatriation operations start there. Such procedures imply that migrants are forbidden to leave the centre until their conclusion and that the deferred refusals of entry ( respingimenti differiti ) are forcibly enforced. ... The Guarantor [would underline] the principle that when possible limitations of personal liberty are at stake – as in fact happens in these facilities – it is necessary, under Article   13 of the Constitution as well as Article 5 of the European Convention on Human Rights, that the relevant rules, which should be clear and predictable, are defined by the legislature ... in such a way either to justify the deprivation of liberty or to prevent the de facto detention of people in the hotspots. ... Migrants subjected to specific readmission agreements are often returned to their countries by charter flights following deferred refusals of entry ( respingimenti differiti ) pursuant to Article 10, paragraph 2, of the Consolidated Act on provisions concerning rules on immigration and on aliens’ conditions no. 286/1998. This concerns migrants rescued at sea who, not having expressed the will to request international protection ... after being identified and photographed in the hotspots, are considered to be irregular migrants and therefore removed. ... Some people are then ... directly forcibly expelled based on a decision of the public security authority without any intervention of a judicial authority. ... Doubts have been raised in the doctrine as to the constitutionality of the failure [of the legal system] to provide judicial control despite the fact that deferred refusals of entry are commonly enforced through the use of force and the question has recently been subjected to the examination of the Constitutional Court in judgment no. 275 of 8 November 2017. ...” Senate of the Republic – Extraordinary Commission for the protection and promotion of human rights Report on Identification and Expulsion Centres in Italy (updated January 2017) 19 .     In addition to the situation of the Italian CIEs, this report refers to the Lampedusa hotspot, although it specifies that it does not belong to the category of CIEs. The relevant passages of the report read as follows: “Lampedusa hotspot The centre was conceived as a first reception centre for very short stays of maximum forty-eight hours. Following the introduction of the new procedures envisaged by the European Agenda on Migration, in many cases stays are longer than that, thus giving rise to a series of critical issues, denounced in an open letter to the Minister of the Interior by Mayor Giusi Nicolini: ‘Both the structural characteristics of the hotspot and the funds available to it ... are unsuitable and insufficient to guarantee decent reception conditions for people who have been detained for over thirty days and who could even be held indefinitely ...’ ... Pre-identification: The way pre-identification is carried out is of particular concern. ... The interview takes place in an open space, under a shelter with tables and benches. The alien is given the so called ‘information sheet’ ( foglio notizie ) which must be filled in with personal information (name, surname, date of birth, residence, paternity, nationality, place of departure). ... This fundamental and necessary step for ‘a first differentiation between, on the one hand, asylum-seekers and, on the other hand, persons to be relocated and irregular migrants’ – as set out in the Roadmap of the Ministry of the Interior – takes place when aliens, who have been rescued at sea and have just disembarked, are often clearly still in shock after a long and risky journey. This cannot be qualified as a proper interview but as a simple questionnaire formulated in an extremely concise way and in any event difficult to understand. ... Identification and registration: ... Under the provisions of the Ministry of the Interior, aliens are not allowed to leave the hotspot until their identification procedure is complete, nor can they apply for asylum in Italy or access the European relocation programme without having completed this procedure. A lacuna thus exists in the current practice with respect to the national law provision pursuant to which, beyond forty-eight hours, a detention must be validated by a judicial authority and the relevant decision must be served on the person concerned. Prolonged stays and the impossibility to leave the facility are indeed not regulated in Lampedusa, owing to its very nature as a first aid and reception centre. ... The facility, then, is completely inadequate in terms of space and services offered to accommodate people for long periods, especially in the case of minors. ...” Constitutional Court case-law Judgment no. 105 of 22 March 2001 20.     In this judgment, the Constitutional Court examined the compatibility of Articles 13 and 14 of Legislative Decree no. 286 of 25 July 1998 with Article 13 of the Constitution. 21.     It recognised that measures providing for retention of foreign nationals in first reception and assistance centres, even if they could be viewed as a mere restriction of freedom of movement and not a full detention, have an impact on the individual’s personal liberty and, therefore, cannot be taken outside the guarantees provided for by Article 13 of the Constitution. Even if the order of retention is issued by the authorities, judicial review must be available and take account of the reasons that led the authorities to order enforcement of expulsion not by mere intimation, but by forced removal to the border, this being the motive of the limitation of the alien’s personal liberty and at the same time the foundation of the subsequent measure of retention. Judgment no. 275 of 8 November 2017 22.     In this judgment, the Constitutional Court examined the compatibility of Article   10, paragraph   2, of Legislative Decree no. 286 of 25 July 1998 with, among others, Article   13 of the Constitution. The Constitutional Court noted that there were two types of so-called “deferred refusals of entry”, as defined in (a) and (b) of that paragraph (see paragraph 14 above). 23.     It further found that situations like the one under its examination, where an order to leave the country ( ordine di respingimento ) was not followed by a forced removal ( rimpatrio forzato ), were not incompatible with Article   13 of the Constitution. 24.     However, the Constitutional Court noted that deferred refusals of entry executed through the use of force called for a legislative intervention since that measure had an impact on the individual’s personal liberty under Article 13 of the Constitution; therefore, it had to be regulated pursuant to paragraph 3 of that provision. Circular no. 14106 of 6 October 2015 of the Ministry of the Interior 25.     The relevant part of this circular states as follows: “In the Roadmap ... the following hotspots were identified: Lampedusa, Pozzallo, Porto Empedocle and Trapani ... Under the current procedure, it is envisaged that all migrants will land in one of the hotspots so that a health check and the procedures consisting in pre-identification ..., registration and the taking of identification photographs and fingerprints can be carried out within twenty-four to forty-eight hours ...” The 2016 Standard Operating Procedure applicable to Italian hotpots 26.     The relevant part of this document reads as follows: “... From the time of [the migrants’] entry [into the Italian territory], the period of stay in the facility should be as short as possible, in accordance with the national legal framework ...” INTERNATIONAL LAW AND PRACTICE European Union Directive 2008/115/EC of the European Parliament and of the Council of 16   December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [4] 27 .     The relevant parts of this Directive read as follows: Article 15 – Detention “1.     Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a)     there is a risk of absconding or (b)     the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. 2.     Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a)     either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b)     or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings. The third-country national concerned shall be released immediately if the detention is not lawful. ...” Article 18 – Emergency situations “1.     In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2). 2.     When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist.” Judgment of the Court of Justice of the European Union of 6   October 2022 Politsei- ja Piirivalveamet (placement in detention – risk of committing a criminal offence) , ECLI:EU:C:2022:753 28 .     The relevant parts of this judgment, delivered pursuant to a request for a preliminary ruling from the Riigikohus (the Supreme Court of Estonia) lodged on 14 April 2021 concerning the interpretation of Article 15 § 1 of Directive 2008/115/EC, read as follows: “35.     Article   15(1) of Directive 2008/115 explicitly provides for two grounds for detention based, on the one hand, on the presence of a risk of absconding as defined in Article   3(7) thereof and, on the other hand, on the fact that the person concerned avoids or hinders the preparation of the return or removal procedure. 36 .     It is true, as the Advocate General pointed out in points   30 to 34 of his Opinion, that it follows from the first sentence of Article   15(1) of Directive 2008/115, and specifically from the words ‘in particular’, that those two grounds are not exhaustive. Therefore, Member States may provide for other specific grounds for detention, in addition to the two grounds explicitly set out in that provision. 37 .     That being so, it must be stated that the p