In an extensive report on the detention of foreigners, focusing on the Italy-Albania Protocol, the Italian Court of Cassation (Corte di Cassazione) highlights numerous problematic points of the agreement, underlining that “legal theory has expressed serious doubts about its compatibility with both the Constitution and international law”, placing particular emphasis on the Protocol’s relationship with European law.
In the section concerning the relationship of the agreement with the Italian Constitution, the report of the Secretariat of the Court of Cassation lists possible violations of constitutionally guaranteed rights, from the right to health to the right to defense. As noted, the agreement “does not precisely define the category of persons to which it refers and, by limiting itself to the general term ‘migrants’, creates a global inequality in treatment between foreigners taken to Italy and ‘migrants’ transferred to Albania.”
According to the Court, the agreement acts as an obstacle to the right to asylum, due to the lack of “detailed regulation of procedural guarantees”. The judges consider that clear guidelines are needed to fill the legal gap created by extraterritoriality and to ensure that migrants transferred to centers in Albania enjoy equivalent guarantees to those on Italian territory.
It is also observed that, according to the Protocol, “detention is no longer treated as a measure of last resort, as provided for by European legislation”, but constitutes “the only alternative option provided for by the legislator, in violation of the guarantees of protection of personal liberty”.
Another serious deficiency is the fact that, in the event of detention abroad, it is practically impossible to immediately release the person once the legal grounds for detention have expired. As stated, the foreigner cannot be released on the spot in Albania, but must be returned to Italy. However, due to the time required for transport by sea or air, it is highly likely that the person will be detained without legal basis (sine titulo) for several hours or even days.
Regarding the right of defence, the Court stresses that "the manner in which the right of defence of foreigners detained in Albania is exercised is not regulated by law, but is left to the discretion of the Italian person in charge of the centre."
Finally, it is noted that the provision of the Protocol – according to which “in the event of medical needs that the Italian authorities cannot meet, the Albanian authorities will cooperate in providing essential and non-deferrable medical care” – may cause serious harm to the right to health of detained migrants, as protected by Article 32 of the Italian Constitution, given that the level of the Albanian health system is not comparable to the Italian one.
