Hotspot approach and habeas corpus. Constitutional profiles

Abstract

This paper aims at examining the so-called hotspot approach with a focus on the respect of the habeas corpus of the migrants within it. Starting from the introduction of this approach by the European Commission through so-called soft law acts, the European legal framework will be outlined. The main criticalities emerged from the transposition of this approach in Italy will then be highlighted. In particular, a) the shortcomings relating to the lack of respect for the principle of legality, although this was imposed by the constitutional rights involved, in the introduction of the discipline, operated through the adoption of acts of an administrative nature; b) the absence of a clear determination of the legal nature of the so-called crisis points, a non-irrelevant lack in the implementation phase of this approach; c) the regulatory gaps in the phase of first identification of the migrant person who has just landed, also with reference to the delicate hypotheses of detention for this purpose provided for by art. 10-ter, lgs.d. no. 286/1998 and by art. 6, par. 3-bis, lgs.d. no. 142/2015; d) the persistent and current violation of the constitutional rights of migrants present inside the hotspots.