The Italy-Albania protocol tested by the most recent jurisprudence. Reflections starting from the preliminary reference

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sakib40
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The Italy-Albania protocol tested by the most recent jurisprudence. Reflections starting from the preliminary reference

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These notes aim to comment on the order of the Court of Rome, XVIII Civil Section - Immigration, issued on 11 November 2024 on the occasion of the judgment of validation of the measure of detention at the detention and repatriation center of Gjader, in Albania, ordered on 8 November 2024 by decree of the Police Chief of Rome against a protection applicant from Bangladesh, i.e. from a so-called safe country.

1. The Gjader center was built in implementation of the amazon database much-discussed Italy-Albania Protocol, signed on 6 November 2023 and ratified by the Italian Parliament with law 14/2024 ( A. Fusco, 2024 ). The objective of the Agreement is, in fact, the creation of a real enclave on Albanian territory ( L. Masera, 2023 ) in order to detain migrants without a valid title to access Italian territory and to examine the requests for protection made there, providing for repatriations in the event of denial and transfer to Italian territory only in the event of acceptance. To this end, the areas in which the centers are located are considered to be border or transit zones, with the consequence that the so-called accelerated procedure for those coming from the so-called safe countries ( art. 3, paragraph 3, law 14/2024 ) also applies there. Accelerated procedures, in particular, entail a halving of procedural deadlines, both in the administrative phase and in the (possible) jurisdictional phase ( art. 35 bis , paragraph 2 bis , Legislative Decree 25/2008 ) and mean that the application for protection is affected by a presumption of unfoundedness ( art. 28 ter , Legislative Decree 25/2008 ). In any case, since it is not possible to dwell here on the most problematic aspects of the Protocol, it is sufficient to remember that the critical issues it raises are nevertheless many, especially with regard to the protection of constitutional rights and extraterritoriality ( C. Siccardi, 2024 ; S. Greco, 2024 ). It is equally important to highlight, however, that the Italy-Albania Protocol is part of the path traced by the new European Pact on Migration and Asylum adopted by the Council of the EU on 14 May 2024 ( Di Pascale, 2024 ), which provides for the mandatory accelerated procedures for the recognition of international protection (in pre-established cases), accompanied by automatic detention on entry ( Recital no. 69, EU Reg. 1348/2024 ), in addition to the possibility of qualifying the countries of origin or provenance as safe, with exceptions for areas or categories of people ( art. 59, paragraph 2, EU Reg. 1348/2024 ).

2. The picture has been further complicated by a recent and much-discussed ruling by the Court of Justice ( ECJ, 4 October 2024, C-406/22 ), which, instead, moved in the opposite direction to that undertaken by the new Pact, clarifying, on the occasion of a preliminary reference promoted by a Czech judge, both that the designation of a safe country with exceptions for parts of the territory is not compatible with art . 37 of Directive 2013/32 and with Annex I to Directive 2013/32 , and that the national judge can review, even ex officio, the designation of a safe country made by the executive power. The ruling has had a disruptive impact on the internal legal system, allowing national judges to review the designation of safe countries, a prerequisite for the accelerated procedure, which in turn is a prerequisite for the operation of the Italy-Albania Protocol.
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