FLASH
Shkruar nga Pamfleti
While the decree approved by the Senate expands the group of foreigners who can be transferred to Albania, who are subject to a deportation order, including those subject to validated or extended detention orders, the Rome Court of Appeal has decided not to confirm the detention of a Ghanaian citizen, who after being transferred to Gjadra, applied for international protection, thus changing his legal status: from irregular pending repatriation to asylum seeker.
The Italian Senate approved the decree for the conversion of migrant centers in Albania into CPR.
This means that people who are deported from Italy, after being denied the right to asylum, will be accommodated in Gjadra.
The decree aims to protect migrant transfers from judicial interference. The approval by 90 votes in favor by the Italian Senate comes at a time when there is a clash between the Court of Cassation and the Court of Appeals in Rome regarding migrants being transferred to Gjadra.
While the decree approved by the Senate expands the group of foreigners who can be transferred to Albania, who are subject to a deportation order, including those subject to validated or extended detention orders, the Rome Court of Appeal has decided not to confirm the detention of a Ghanaian citizen, who after being transferred to Gjadra, applied for international protection, thus changing his legal status: from irregular pending repatriation to asylum seeker.
Paragraph 1 of the first article of Legislative Decree 37/2025, which intervenes in Law 14/2024, which ratified the Rome-Tirana Protocol of 6 November 2023, has effectively allowed the reactivation of the operation, as the judges had always suspended the validity of the bans on migrants rescued in international waters and coming from the so-called safe countries, the only ones for which accelerated border procedures in Albania could initially be applied, pending the decision of the European Court of Justice on the legitimacy of the list of safe countries drawn up at national level.
Changes
The Constitutional Affairs Committee of the House of Representatives had approved the package of three amendments presented by rapporteur Sara Kelany (Fdi) with which the government and the majority protected the transfers from the intervention of judges. In fact, the Court of Appeal of Rome had refused to validate 18 migrants transferred in April to the Albanian center, forcing them to return to Italy. The reason? They had applied for international protection as soon as they arrived in Albania and therefore, according to the Italian magistrates, they were not among those who had the right to stay in Gjadra to carry out the asylum procedures.
Decision of the Court of Cassation
Meanwhile, an important help came from decision No. 17510 of the first criminal section of the Court of Cassation, which established a clear legal principle: it is lawful to detain a foreigner in the Gjadri repatriation detention center in Albania even after submitting an application for international protection, because the structure must be equated in all aspects with Italian centers and the asylum procedure can be carried out without the migrant returning to Italy.
The amendments to the decree approved by the commission are moving in the same direction. First of all, they provide that the foreigner transferred to Gjara remains there, as provided for by article 6, paragraph 3 of Legislative Decree 142/2015, when there are reasonable grounds to believe that the application for international protection filed there was filed solely to delay or prevent the execution of the refusal or expulsion.
Paragraph 2, also introduced by Constitutional Affairs, provides that the invalidity of the detention order for asylum seekers in a CPR does not exclude the possible subsequent adoption of a detention order, if there are reasonable grounds to believe that the asylum application was submitted solely to delay or prevent deportation. In such cases, migrants may remain in the CPR until a decision is taken on the validation of the measure, if it is adopted immediately, or in any case no later than 48 hours after the failure to validate it.
Clash
Despite the recent amendment by the Italian government to allow the transfer from Italy of irregular migrants awaiting repatriation, the Italy-Albania Protocol does not expressly provide for this in cases where international protection is sought by those transferred to the Gjadri camp. This seems to be creating a clash between the judicial circles in Italy.
The Court of Appeal in Rome decided to release several foreigners transferred to Albania in recent weeks. The Interior Ministry contested one of these decisions and on May 8, the First Criminal Section of the Court of Cassation equated “in all respects” the Civil Procedure Rules in Gjadra with those in Italy and established the legitimacy of detaining an asylum seeker when it is believed that the request is submitted “for the sole purpose of delaying or preventing deportation.”
The statement is undoubtedly useful for the Italian government, which in fact immediately took it into account.
Has everything been clarified? Not for the Court of Appeal, which on May 19, in a decree signed by Judge Cecilia Cavaceppi, decided to “ignore the decision of the Court of Cassation, which is currently unique and isolated,” highlighting the problems of constitutionality and the conflict with European legislation.
Although it does not expressly provide for it, says the Court of Cassation, the Italy-Albania protocol does not prevent the detention in Gjadra of those who submit an "instrumental" request (to avoid repatriation), which is already provided for in the rules for CPRs in Italy.
However, according to the Court of Appeal, without a law that expressly provides for it, the detention of applicants in Gjadra is an unlawful measure and violates Article 13 of the Constitution, which limits the restriction of personal freedom to cases and methods provided for by law. /Adapted from Pamphlet/
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