What it is about
The Italian government has for years accelerated the signing of readmission and repatriation agreements with African countries, particularly Nigeria, Gambia, Ivory Coast and Senegal, in order to identify and repatriate foreign nationals irregularly residing in Italy.
In the past, repatriation agreements were intended as genuine international agreements, whereas for the past few years they have been regarded by the Ministry of Interior and the Public Security Department (usually responsible for signing them) as mere police arrangements.
The differences and consequences are quite evident.
In fact, an international agreement must be published so that all individuals (Italian and third country nationals) may have access to its content (and even challenge it if its provisions are contrary to fundamental freedoms, the right to asylum, constitutional guarantees, etc.). On the contrary, in case of a police arrangement, individuals do not have access to its contents, as the information contained can potentially involve areas of police cooperation.
However, it emerges from various public sources (parliamentary queries, press statements, interviews) that repatriation and readmission agreements always contain provisions of a political and economic nature that are incompatible with mere police arrangements. In fact, where the Italian State obligates itself to an economic performance, or the understanding gives rise to political obligations, one is undoubtedly dealing with an international agreement that entails duties of publicity and transparency.
Therefore, actions have been structured aimed at becoming aware of the content of these understandings, which should comply with the legal regime of international agreements, as they are internationally binding for the Italian State.
It is of utmost importance to know the content of these agreements in order to become aware of the economic and political commitments made by the Italian Government on the matter of promotion of repatriation procedures. Such knowledge is essential to know what identification procedures have been established, to assess whether they can be considered suitable legal bases for prolonging the periods of detention, to challenge them and to request their annulment in case of unlawfulness.
What has been done
The most important action taken was requesting access to the readmission and repatriation agreement signed between Italy and The Gambia, as a strategy for proving its nature of international understanding or agreement.
In fact, if confronted with an international agreement one should have knowledge of its content and be able to verify the legitimacy of its provisions; whereas, if we are confronted with an understanding, the Italian Ministry of Interior could not prolong the detention period of third country nationals (whose governments are parties to the repatriation agreements) in repatriation centers beyond the stipulated 90 days (Art. 14 of the Italian Legislative Decree 286/98).
According to the provisions of Italian Legislative Decree 33/2013 and Article 4 of Italian Law No. 839/1984, the Government has an obligation to notify Parliament and publish in the Official Gazette all international agreements the Italian Republic undertakes in the context of foreign relations. Therefore, international agreements are subject to an obligation of publicity.
Hence, a request was made under Article 5(1) Legislative Decree 33/2013 for the production of documents subject to mandatory publication.
We then argued that the readmission agreement between Italy and The Gambia was an international agreement, by relying on the public sources which referred to its content.
It is possible to infer its nature of agreement from the following key elements:
1. The Under-Secretary of State for Foreign Affairs and Cooperation, during a Parliamentary query session dated 9 June 2016, confirmed that the 2010 Agreement provides that Italy and The Gambia mutually bind each other with regards to precise obligations concerning, on the one hand, the commitment to economic, training and logistical support of Gambian police authorities, and on the other hand, the facilitation and cooperation in the repatriation activities of Gambian nationals in Italy.
2. From the stenographic report of parliamentary session No. 613 of 21 April 2016 the programmatic and cooperative nature of the agreement emerges, so much so that the willingness of the parties to engage in future forms of cooperation – including through the use of economic resources – is mentioned several times.
3. As recalled by the Under-Secretary of State in his response to the Parliament, this agreement establishes the possibility to authorize the permanent residence at Italian police force premises of personnel belonging to foreign police forces, and the deployment of economic resources aimed at strengthening the border control capacity at the border with Senegal.
4. Italy provided for the purchase in favor of the Gambian police of 12 Toyota Land Cruiser PickUps, and of computer equipment that had been requested by the Gambian authorities in October 2016, and in the following December procedures were initiated for the supply of 40 all-terrain vehicles.
The Council of State asked the government and the Ministry of Foreign Affairs and Cooperation to report on the content of the understanding and withheld the decision until the outcome of the investigation.
Based on the information received by the Italian government, the Council of State found that Italy and The Gambia had signed an understanding and an agreement, hence the non-applicability of the publicity obligations.
What else can be done?
Today there is a renewed interest in readmission agreements and understandings with third countries, following the reform of Art. 14(5) of Italian Legislative Decree No. 286/98. This provision now provides the possibility of prolonging the period of detention for additional 30 days for irregular third country nationals in repatriation centers if there is a readmission agreement between Italy and their countries of origin.
This has two consequences. On the one hand, if the Ministry of Interior argues that we are dealing with a police arrangement, this cannot represent the basis for a request for an extension of the period of detention; on the other hand, if an extension of detention is requested and ordered, then there is an existing agreement and this must also be public, in order for its content to be verified.
In consideration of the foregoing, we believe that lawyers and legal practitioners can request the disclosure of readmission agreements through requests for access to documents and civic access, and that lawyers can request the competent Judge to order the disclosure of the agreements before deciding on the extension of detention periods.
Knowing the content of the agreements would also allow people to challenge their lawfulness in case they contain provisions that infringe the rights of third country nationals.
Members of Parliament play a decisive role in this path to transparency. In fact, they should require publication and reports on the content of readmission agreements whenever they are signed in order to remind the Ministry of Interior and Foreign Affairs and Cooperation of their transparency and control obligations.