Brussels, 28/04/2011 (Agence Europe) - The Italian law which allows a prison term to be imposed on an illegally staying third-country national who does not comply with an order to leave the national territory runs counter to the European directive on the return of illegal immigrants. A penalty such as that provided for by the Italian legislation is liable to jeopardise the attainment of the objective of the “returns directive” (2008/115/EC) of introducing an effective policy for removal and repatriation in keeping with fundamental rights.
That is the substance of the judgment delivered in case C-61/11 PPU by the Court of Justice of the EU, to which the Trento Appeal Court had urgently referred. The Trento Appeal Court asked about the legality of a ruling by the Trent District Court which, at the end of 2010, sentenced an Algerian national to one year in prison for failing to leave Italian territory within the five days specified in the order to leave the country issued to him. The Italian legislative decree at issue justifies the five-day timescale by the lack of space at a detention centre making it impossible to accommodate the Algerian national temporarily.
In its judgment, the Court of Justice notes, firstly, that the returns directive sets out clearly the stages in the procedure and the measures that member states must apply on the rerun of illegally staying third-country nationals: - the adoption of a return decision, where priority is given to the possibility of a voluntary departure, with a period of between seven and 30 days normally being granted; - if voluntary departure is not accepted, member states should proceed with forced removal using the least coercive measures possible; - where the removal risks being jeopardised by the conduct of the person concerned, that person may be held in detention for as short a period as possible (and no more than 18 months) in a specialist detention centre and, under no circumstances, in a detention centre along with criminals, with reviews at reasonable intervals of time. The directive seeks to limit as much as possible coercive measures and deprivation of freedom, observing the principal of proportionality at every stage of the procedure and ensuring respect for the fundamental rights of illegally staying third-country nationals. Member states may certainly apply measures, including criminal measures if necessary, in cases where coercive measures have not led to removal, but they must adjust their legislation in order to ensure compliance with the objectives of the directive and its criteria. For this reason, and despite the fact that the returns directive has not yet been transposed into Italian law (though it should have been before 24 December 2010), European law must prevail and Italy must not, through its criminal law, jeopardise realisation of the objectives of the directive and prevent its achieving its ends. The Court invites the judge who referred the matter to leave in abeyance any national provision which runs counter to the desired effect of the directive (imprisonment of one to four years as provided for in the Italian decree) and to take account of the principle of retroactive application of the lightest sentence, which forms part of member states' common constitutional traditions. (F.G./transl.rt)