Analysis. The Italian Supreme Court raised a petition to the European Court of Justice to examine a ruling invalidating the detention of Tunisian migrants in Italy. The court declined.

ECJ decision puts Italy’s Albania plan at risk

The European Court of Justice has decided not to accept the petition for an emergency hearing raised by the Italian Supreme Court on the rulings by which the Catania Court invalidated the detention of a number of Tunisian migrants at the Modica-Pozzallo. The Ragusa police chief had ordered their detention on the basis of the “Cutro Decree,” which notoriously requires migrants to post a financial guarantee to avoid detention.

There was no actual reason for urgency in the process of having the ECJ examine the ruling. The asylum seekers involved are no longer in detention. The real reason for urgency was the Meloni government’s need to secure a repeal of the rulings of the Catania Judges Apostolico and Cupri before the upcoming elections. But the European Court did not bend to the political demands of the Italian government. It will be at least a year until a ruling by the Luxembourg judges. In the meantime, the decisions of the Catania judges remain fully in effect.

According to Judges Apostolico and Cupri, Article 6-bis of Legislative Decree 142/2015, as amended by the Cutro Decree, requires posting a financial guarantee, a provision which is set up not as a measure that would be in effect an alternative to detention, but as a requirement imposed on the asylum seeker coming from a “safe third country” to avoid administrative detention, a requirement that in practice could never be fulfilled.

Thus, the Decree’s provision of administrative detention for asylum seekers is of a generalized nature, contrary to the current European directive on asylum procedures.

The Italian Supreme Court asked the Luxembourg judges whether Articles 8 and 9 of Directive 2013/33 would be incompatible with a domestic law regulation that provides, as an alternative measure to detaining the applicant (who has not surrendered a passport or other equivalent document and cannot provide for their own needs), the provision of a financial guarantee in a fixed amount instead of a variable amount, “without allowing for any adjustment of the amount to the individual situation of the applicant, nor for the possibility of constituting the guarantee through the intervention of a third party.”

The Supreme Court could have already ruled on the legitimacy of the measures taken by the Ragusa police chief, since there was a lack of motivation for these measures, as noted by the judges of the Court of Catania, but it preferred to refer the overall question of the incompatibility of the regulations on detention resulting from the Cutro Decree with the regulations dictated by the European Union to the ECJ in Luxembourg.

With the ECJ deciding that it will examine the case under its ordinary procedure, the application of the Italy-Albania Protocol, which is based on “accelerated procedures at the border” and generalized administrative detention for those who “come from safe third countries,” is on very shaky ground. It’s hard to imagine what kind of “financial guarantee” migrants rescued in international waters and deported to Albania could offer.

It may take a long time to get an impartial ruling by the judicial authority, perhaps by the Constitutional Court, on detention measures in asylum procedures applied at the border.

Unless, that is, the government resorts to yet another “security” legislative decree, once again in violation of the hierarchical system of legislative authority imposed by the Constitution (in Article 117). Nowadays, when a sense of the value of human life seems to have been lost – from the genocide in Palestine to the recurring state-assisted tragedies in Mediterranean waters – compliance with the formal rules established at the European level to guarantee the personal freedom of those fleeing in search of protection and the right to asylum represents a test case for the chances of survival of European democracies, which, in view of the upcoming elections, are more and more inclined to deny not only the rights, but the very presence of asylum seekers, confined in spaces deemed to be outside state territory or deported directly to third countries.

Subscribe to our newsletter

Your weekly briefing of progressive news.

You have Successfully Subscribed!