THE ITALIAN-ALBANIAN PROTOCOL AND ITS LEGAL CHALLENGES

Elisabetta Chiuminatto

15 nov 2024Tempo di lettura: 4 min

On November 8th 2024, the Italian naval ship Libra transferred eight migrants to Albania after rescuing them four days prior. However, this move sparked a significant legal challenge to Italy's recent migration policies, as the Palermo Court intervened to order the release of two of the migrants—a Senegalese and a Ghanaian.

This decision directly challenges the legitimacy of Italy's migration policies, particularly the Cutro Decrees—a set of measures aimed at streamlining border procedures and expediting deportations. These decrees facilitate the swift return of migrants from designated "safe" countries, significantly limiting their ability to claim asylum.

However, in this case, the Palermo migration tribunal challenged the application of the Cutro Decrees, arguing that the "safe country" designation may not comply with EU standards for protecting the rights of all asylum seekers. The tribunal has since escalated the case to the European Court of Justice (ECJ), asking for clarification on whether EU law permits labeling a third country as "safe" if it fails to meet protective standards for all groups of people as specified under EU asylum directives. (Ansa, s.d.)

This judicial decision echoes developments from October 16, 2024, when an initial group of migrants was transferred from Italy to Albania under a bilateral agreement between the two countries. That operation began on October 14, 2024, when the Italian military vessel transported 16 migrants, rescued off the coast of Lampedusa, to Albania in line with the Italian-Albanian Protocol on extraterritorial migration management.

The Italian-Albanian Protocol

The Italian-Albanian Protocol, formally ratified in 2024, establishes Italian-administered centers in Albania for the intake and assessment of migrants. Although the centers operate under Italian jurisdiction with Italian authorities managing migrant processing in accordance with Italian law, Albanian authorities monitor their activities, and Albania is responsible for external security.

The agreement permits Italy to process up to 180,000 migrants in Albanian centers over five years, with a total expenditure of €605 million. (DW News, s.d.) (Il Post, s.d.)

Judicial Interventions

However, the Italian government's migration plan encountered significant setbacks.

On October 18, the Rome Tribunal intervened to halt the detention of migrants in Albania, rejecting Italy's approach based on a ruling from the European Court of Justice. According to the ruling of the Court, a country must not engage in persecution, discrimination, or torture in any part of its territory or against any individual to be considered "safe." Applying these criteria, Egypt, Bangladesh, and Tunisia are not considered safe. Therefore, the border procedure is not applicable, and the Protocol mandates that the migrants must be transferred outside Albanian territory and brought to Italy.

Additionally, four migrants from the initial group were returned to Italy due to health and age-related issues. (Ansa, s.d.)

Legal Appeals

The Ministry of the Interior has appealed the Rome Tribunal's decision, specifically from the section dealing with personal rights and immigration, which overturned the detention of the 12 migrants in Albania. The Ministry's main issue is the non-application of the Italian law on safe countries. (Tg24.sky, s.d.)

Implications and Criticisms

These case highlight the ongoing challenges for the Italian government in implementing policies from the Italian-Albanian agreement. The suspension of transfers raises serious legal and ethical questions about Italy's external processing model, especially regarding compliance with EU human rights standards and restrictions on detainee eligibility.

There are serious issues, such as the international obligation to ensure a rapid disembarkation in a safe place after a rescue, which is blatantly violated by imposing a long journey from the central Mediterranean to Albania. This unnecessary extension of the journey, in addition to violating international search and rescue standards, adds further suffering to people who have just been rescued from the sea, often traumatized from having witnessed drownings or in urgent need of assistance. Furthermore, the agreement could negatively impact the search and rescue system, worsening the already critical situation in the central Mediterranean and endangering many lives.

In 2023 alone, at least 2,498 people lost their lives in the central Mediterranean, a significant increase from the previous year (Amnesty.org, s.d.).

Additionally, while the application of Italian jurisdiction promises access to procedural guarantees and asylum rights according to Italian and European laws, the physical distance could compromise access to these guarantees. There are serious issues, for example, concerning the ability to receive adequate legal assistance from a chosen person and to effectively participate in relevant proceedings, considering the planned use of remote legal assistance and interviews.

Finally, in criminal law, issues have been raised concerning the explicit derogation from Article 10 of the Penal Code and the introduction of a subjective jurisdiction criterion, potentially violating Article 3 of the Constitution. The European Union has expressed concerns about the extraterritorial application of EU law, with Commissioner Ylva Johansson deeming the Italo-Albanian Protocol "outside EU law." (euronews, s.d.)

The agreement, which involves concurrent competencies under Article 78 TFEU and may fall under the Union's exclusive external competence, does not explicitly prohibit internal recognition procedures for international protection but must not interfere with the effectiveness of EU law. The accelerated border procedure in Albanian detention centers risks compressing asylum seekers' rights, violating EU directives and constitutional rights (eur-lex, s.d.).

In conclusion, the Protocol's extraterritorial approach raises both legal and administrative concerns, necessitating further scrutiny to ensure it aligns with constitutional and EU values. (SIDIBlog, s.d.)