“Release is the remedy when minimum standards cannot be met in other ways,” said human rights expert Mads Andenas, who heads the United Nations Working Group on Arbitrary Detention, at the end of a three-day visit to Italy to follow up on the implementation of the recommendations issued after the 2008 visit of the Working Group.

The Working Group welcomed the recent reforms reducing the length of sentences, overcrowding in the penitentiary establishments, and the use of pre-trial detention. According to Article 8 of Decreto legge 92/2014, pre-trial detention cannot be applied in cases where the judge considers that the defendant, if found guilty, will be sentenced to three years or less or given a suspended sentence. “This would reduce the inappropriate use of pre-trial detention as a penalty,” Mr. Andenas noted.

Concerns remained, however, with regard to the high number of pre-trial detainees, and there is a need to monitor and remedy the disproportionate application of pre-trial detention in cases regarding foreign nationals and Roma, including minors.

The Working Group welcomed the recent abolition of migration as an aggravating circumstance in criminal law and steps taken by the Parliament to abrogate the crime of “illegal entry and stay.” However, it noted with concern that the latter remains an administrative offence.

“We also remain seriously concerned about the length of administrative detention (with a statutory maximum duration of 18 months) and the conditions of detention in the Identification and Expulsion Centers (CIEs), but are encouraged by recent legislative initiatives to reduce the maximum period of detention of irregular migrants to 12, or even six, months,” Mr. Andenas said.

“We found that a significant number of detainees in CIEs are foreign nationals convicted of criminal offenses who were subsequently remanded into these centers,” he further observed. “We call on the government to avoid the transfer to CIEs of convicted migrants who should be identified during their detention in prison."

The Working Group also noted with particular concern reports of summary returns of individuals, including in some cases unaccompanied minors and adult asylum seekers, in the context of bilateral readmission agreements, mainly due to inadequate or non-existing screening that fail to determine age or to inform them of their rights.

In the context of monitoring places of detention, the Working Group welcomed the recent ratification of the Optional Protocol to the Convention against Torture and the establishment of the National Guarantor of the rights of detainees. It regretted, however, that the government had not yet established an independent national human rights institution in accordance with the Paris Principles.

The UN experts also met with two Italian NGOs, Antigone and Save The Children, during their visit.

"On similar matters, the directions of the UN should be followed, and not the feelings of public opinion," said Patrizio Gonnella, president of Antigone, commenting on the UN visit. "It makes no sense to hold in prison, in pre-trial detention, people who, having committed petty crimes, won’t go to prison after their final sentence. This is why we believe, and the Working Group agreed with us, that the decree approved by the government on remand detention should not be amended."

"Let’s introduce rapidly the crime of torture in the Italian penal code," concludes Gonnella, "and let’s deal urgently with all the problems highlighted by the Working Group of the United Nations, including appointing a national ombudsman for the detainees who is an eminent and independent expert."