Press release, Rulings no. 202207368/1 and 202300521/1 April 2023, 26th
The Italian Constitution enshrines the inviolability of personal freedom (Article 13, par. 1) by referring it to human being as such, it also provides some guarantees by means of the different role entrusted to political institutions and judicial bodies (Article 13, par. 2). Consistently, any restrictive measure, even beyond criminal sanctions, shall comply with both, formal constitutional guarantees (i.e. the rule of law and the competence of judicial authorities) and substantial constitutional guarantees (i.e. respect for the fundamental principles of reasonableness, proportionality and human dignity according to Articles 2-3). Against this backdrop, some constitutional doubts raise in reference to the Italian legislative provisions on immigration with specific regard to the “retention” of migrants irregularly entered the Italian territory
In light of the expansion of the scope of personal preventive measures, the role of courts and scholars consists of watching individual safeguards. In a context of expanding preventive measures, it seems unrealistic imagining a criminal justice system without prevention praeter delictum. The best option is then limiting the use of such measures, strictly applying proportionality in order to assess the grounds and the effects of the measure on the personal freedom, directly or indirectly as a consequence of the infringement of the relevant prescriptions.
The weakness of fundamental rights of the psychiatrically ill individual, within curative facilities based on restraint theories and organizational models, has been posing for a long time an ethical and legal matter, on which some judges have significantly ruled. An important judgment by the Italian Supreme Court of Cassation justified the mechanic contention under necessity in light of constitutional, systemic and bioethical reasons, advanced for long time by scholars
Mental health and freedoms are interrelated. In the history of psychiatry, on the contrary, social control and psychological subjection were the prevailing factors. Contention in closed facilities, as psychiatric hospitals were, and similarly to many hospital psychiatric divisions nowadays causes additional illness. Consistently with the democratization of all the liberal professions, many psychiatrists started to follow a different path that since the XIXth century conjugated plural freedoms and therapies. The mental health movement helped in drafting the Italian laws 180 and 833 that banned madhouses and integrated physical and mental health under the Local Health Units. Health is now under the Market domain, because of the regional and business structure of the SSN. This jeopardized the mental health service culture and organization
The current status of the protection seekers is similar, recalling Arendt, to the one of individuals enjoying in theory human rights, but without any kind of protection in practice. Such a de facto statelessness derives also from the lost legal-dogmatic autonomy of constitutional asylum, whose original purpose was the political emancipation of the seeker, in principle entitled even to citizenship. The purpose of the humanitarian asylum is, in turn, mainly to aid a naked life suffering and traumatized. The decline of humanitarian rationale and the increasingly prominent role of security rationale, the de-individualization program of the protection seeker reaches its peak, becoming, especially after the ‘security’ law decrees in Italy, a sort of institutional racism
The paper examines substantive and procedural safeguards surrounding personal freedom of foreign nationals in the area of irregular immigration control, focusing on de facto detention at the border. In the lack of a general habeas corpus remedy in Italy, several tools against coercive measures extra ordinem are examined, in light of the most recent case law on detention in the hotspot centers as well as aboard military and private ships in the context of the so called “closed ports policy”. The paper analyzes both the border authorities’ praxis and the most recent legislative measures, from an interdisciplinary standpoint that takes into account criminal law and administrative law principles, as well as the supranational human rights protection profiles