CAT/OP/ITA/1 19. The SPT would like to emphasize that the starting point should be a presumption against detention in law. In particular, mandatory detention policies or detention of groups of persons without having undertaken an adequate assessment of the necessity and proportionality of detention in each individual case must be avoided. 20. While welcoming the decriminalization of unauthorized stays, the SPT notes with concern that, if an individual has been subject to an expulsion or rejection order and reenters Italian territory irregularly, the criminal law continues to be engaged. 3 21. Legislative Decree 286/1998 provides for the detention of irregular migrants who are liable to expulsion in Centres for Identification and Expulsion (CIE). The legal framework does not foresee immigration detention in any other form of facilities and only permits such detention if (a) there is a ‘risk of absconding’, (b) there is a need to provide assistance, (c) if for practical reasons an expulsion cannot be carried out, for reasons such as the lack of confirmation of an individual’s nationality or identity by their country of nationality, lack of travel documents or of available means of transportation. 4 Detention of a person in a CIE must be validated by the competent justice of the peace within 48 hours. In its follow-up visit the SPT was informed that the above-mentioned legal framework has been partially amended and modified by regulations which have been put into force after the visit. The SPT takes note of those changes but will comment on the legal framework which was applicable during the visit. The SPT comments have an overarching value and are therefore continue to be applicable accordingly to any change of the legal basis. 22. The SPT is deeply concerned at the enumerated criteria legitimising detention in Legislative Decree 286/1998 and, in particular, at the excessively broad approach to what amounts to a ‘risk of absconding’ in Italian law, which includes either of these elements: 5 (a) the individual is not in possession of a valid identity document; (b) the individual does not have documentation capable of proving the availability of a lodging where he/she can be easily traced; (c) the individual has previously stated or falsely certified his/her personal data; (d) the individual did not comply with one of the measures provided by authorities (such as previous expulsion order and re-entry ban; restrictions imposed as alternatives to detention); (e) the individual infringed one of the requirements set in relation to his/her voluntary departure. 23. The SPT recommends the State party to: (a) consider decriminalising all instances of irregular re-entry or stay; (b) consider revising its definition of what circumstances constitute a ‘risk of absconding’ with a view of narrowing it; (c) consider introducing a presumption against immigration detention in law and ensure that immigration detention is only applied as a measure of last resort, after it has been determined, on a case by case basis, to be strictly necessary, proportionate, lawful, non-arbitrary and it is imposed for the shortest period of time. 24. Similarly, the SPT regards the detention of a person based on the need for assistance an entirely inappropriate and illegitimate reason to deprive someone of his or her liberty. 3 4 5 6 Legislative Decree 286/1998, article 10bis. Articles 13(4bis) and 14, Legislative Decree 286/1998. Legislative Decree 286/1998.