The Return Directive was implemented in Italy with delay following the ECJ landmark decision in the case El Dridi that had showed the inconsistency of some national provisions in force with the EU legislation. Since then the interaction between the national judiciary and the Court of Justice has not been constantly ensured, also in consideration of the judge that was assigned lawfulness control over the measures functional to the foreigner’s removal. In fact, such control is carried out by justices of peace, i.e. lay magistrates temporarily exercising judicial duties. Their independence and preparation in tackling an issue that directly affect personal freedom and fundamental rights are debated and the judicial practice on expulsion and pre-removal detention has not showed an in-depth legal analysis. In that regard greater attention to the European rules and jurisprudence emerges instead in the decisions of the Court of Cassation, whose intervention is however limited due to the reduced number of cases challenged before such court of superior jurisdiction. Overall, the choice made by the Legislature raises several critical profiles that will be discussed in this chapter.
Can a Justice of the Peace be a good Detention Judge? The case of Italy / A. DI PASCALE (MODERN STUDIES IN EUROPEAN LAW). - In: Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union / [a cura di] M. Moraru, G. Cornelisse, P. De Bruycker. - Prima edizione. - Oxford, New York : Hart Publishing, 2020. - ISBN 9781509922956. - pp. 301-317
Can a Justice of the Peace be a good Detention Judge? The case of Italy
A. DI PASCALE
2020
Abstract
The Return Directive was implemented in Italy with delay following the ECJ landmark decision in the case El Dridi that had showed the inconsistency of some national provisions in force with the EU legislation. Since then the interaction between the national judiciary and the Court of Justice has not been constantly ensured, also in consideration of the judge that was assigned lawfulness control over the measures functional to the foreigner’s removal. In fact, such control is carried out by justices of peace, i.e. lay magistrates temporarily exercising judicial duties. Their independence and preparation in tackling an issue that directly affect personal freedom and fundamental rights are debated and the judicial practice on expulsion and pre-removal detention has not showed an in-depth legal analysis. In that regard greater attention to the European rules and jurisprudence emerges instead in the decisions of the Court of Cassation, whose intervention is however limited due to the reduced number of cases challenged before such court of superior jurisdiction. Overall, the choice made by the Legislature raises several critical profiles that will be discussed in this chapter.File | Dimensione | Formato | |
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