ERRC and Sulejmanovic v Presidency of the Council of Ministers and others

This document outlines the legal action taken by the European Roma Rights Centre against the State of Emergency Decree in Italy.

Applicants: ERRC and the Sulejmanovic family
Case no. 6400-6859/2009

Background: The State of Emergency Decree was first instituted in the regions of Lombardy, Lazio and Campania in May 2008, and extended to Veneto and Piedmont in 2009. It defined the presence of ’nomads’ (terminology used by the government to describe Roma, Sinti and Caminanti) in Italy as a threat to public security. The Decree was based on extraordinary powers, which are normally used for short periods to deal with natural disasters or events that, because of their extension and gravity, require a special, urgent action. The State of Emergency in all five regions was extended until December 2010 and subsequently extended until December 2011. Based on this Decree, several other decrees were issued in 2008 appointing Prefects (local government officials) as Special Commissioners and giving extraordinary powers to special state authorities, including: monitoring camps, conducting a census of persons resident in camps (including minors), taking photos and requesting documents to identify and record residents, expelling persons with irregular status from camps, displacing persons to formally monitored camps and carrying out forced evictions of informal settlements. 
 
Facts/Procedure: On 29 July 2008, the ERRC and the Sulejmanovic family filed a case in front of the T.A.R. Lazio (Regional Administrative Court of Latium). It was filed against the central Government as well several local authorities, and requested the annulment of the State of Emergency Decree and acts flowing from it, complaining of its discriminatory nature, abuse of power for lack of investigation (before issuing the decree), misrepresentation of factual and legal assumptions, inconsistency and lack of motivation.

On 1 July 2009, the first instance Tribunale Amministrativo del Lazio (Regional Administrative Court) decided the case (partially) in the applicants’ favour and lifted some of the provisions of the State of Emergency, such as carrying out censuses, surveillance of camps and restrictions to the individuals’ freedom to choose their own employment activity.

On appeal both from the applicants and from the defendants, the case was decided on 4 November 2011, when the Council of State, the highest administrative court in the country, ruled that the State of Emergency was illegal. The Court based its decision on the absence of factual data the relationship between the so-called Nomad population’s presence and an exceptional disturbance of public order as well as insufficient preliminary investigation.

With that ruling, the decree of 2008 and the acts based on it were declared immediately invalid. The Council of State did not make a fully reasoned ruling on the matter of discrimination, but it acknowledged that some attitudes of the local authorities were, in fact, discriminatory, saying “We retain that these elements, though perhaps appropriate for revealing a discriminatory intent of some governmental agencies, do not lead to the conclusion that the entire governmental action in this case was solely and primarily aimed to discriminate against the Roma community.”

In February 2012 the Government and the Municipality of Rome filed an extraordinary appeal to the Court of Cassation, the highest court in Italy, They also filed a request for the suspension of the effects of the Decision no. 6050 of the Council of State, which declared the State of Emergency as illegal, with regards to the contracts initiated during the State of Emergency until the final judgment is pronounced.

The case is currently pending before the Court of Cassation, with what is expected to be a final hearing on the 26 March 2013.

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