A new measure introduced by Italy asking asylum seekers to pay 'bail' to avoid being detained at a pre-removal detention center (CPR) "must be evaluated case by case", a European Commission spokesperson said on Monday, (September 25).

A few days after it was approved by the Italian government to implement the so-called Cutro decree --a package of measures introduced in the wake of the deadly February 26 shipwreck off Cutro, in Calabria, which were converted into law by Parliament in May-- the European Commission has expressed caution regarding the measure stating that all asylum seekers from countries that are considered safe must pay 'bail' of 4,938 to avoid being detained at a CPR while their appeal against the rejection of an asylum application is examined.

The decision to ask all applicants for the same sum was perceived as potentially controversial by the European Commission which saw a possible conflict with European legislation.

Principle of 'proportionality' must be respected

European Commission spokeswoman Anita Hipper said that alternatives to detention must still respect the principle "of proportionality". The juridical framework of the idea of paying a kind of 'bail' established by Italy relates to a directive regarding hosting dating from June 26, 2013.

Article 8 on the detention of migrants states that all member states ensure that national legislation contemplates alternative measures to detention, including the obligation to report to authorities on a regular basis, a financial guarantee or the obligation to reside in an assigned place.

The possibility of introducing bail is therefore contemplated within existing legislation. In a paragraph of Article 8, the so-called principle of 'proportionality' indicates that, when necessary and based on a case-by-case evaluation, member States can detain the applicant, unless alternative and less coercive measures can be effectively implemented.

Conflict with directive could be challenged in court

The EU has no direct jurisdiction over the establishment of bail in Italy. But a potential conflict with the European directive could be challenged at the Court of Justice of the European Union. The European court in May 2020 ruled on a case regarding Hungary and the detention of migrants in the transit zone of Roszke, near the border with Serbia.

The court, considering the detention of migrants without valid reason to be illegitimate, specified that asylum seekers could not be detained soley based on the fact that they could not provide for themselves.

The court in particular stressed that it was necessary to examine the "need and proportionality" of a detention measure in each case. So far, the Commission has only stressed that it is examining the Italian measure. "We are in contact with Italian authorities to understand more," the European executive said through a spokesperson.