Analysis. The text is an open violation of Articles 3, 10 and 117 of the Italian Constitution. What happened to the rule of law?

Italy-Albania memorandum has no legal basis

Editor’s note: Italy and Albania signed an agreement for the non-EU country to hold migrants at two new detention centers there. Read about the deal in Reuters.

The text of the Memorandum concluded by Giorgia Meloni with Edi Rama goes far beyond the note published on Monday by the Prime Minister’s office, and almost every paragraph contains provisions that conflict with Italian and EU law.

Just from reading the headings, one already starts to have doubts about the legitimacy of the agreement, which appears to have no legal basis, in violation of the principle of judicial preemincence, and makes clear the purely electoral nature of this “enhanced cooperation” with a third country, which the Italian prime minister aims to exploit in the campaign for the European elections, while offering an obvious quid-pro-quo to the Albanian side in the form of the commitment to support Albania’s entry into the European Union.

The contents are in blatant violation of Articles 3, 10 and 117 of the Italian Constitution. They even go beyond the externalization of border controls, already implemented in the European Plan on Immigration and Asylum, yet to be approved by the legislature, and end up inspired by the logic of deterritorialization of persons on the Guantanamo model.

For those who are going be deported to Albania as a collective refoulement – because deportation is what this is all about – the agreement provides for a “special” legal regime. They would not be subject to Albanian law, except perhaps in transit from the ports to the detention center, or in the case of escape from the centers, but neither would they be able to avail themselves of all the protections, starting with constitutional guarantees, provided for those who are under Italian jurisdiction on Italian territory.

As Giorgia Meloni announced about the two planned centers, “the one at the port will handle the disembarkation and identification procedures with an initial screening activity, while the center that will be built in a more inland location will be a facility on the CPR model.” However, according to ruling number 105 of 2001 of our Constitutional Court, any forced removal procedure implemented by Italian authorities through detention in a detention center must be validated by the decision of a judge (the principle of juridical preeminence).

How will it be possible to implement these guarantees on Albanian soil? Will videoconferencing be used for expedited border procedures and the validation of detention measures? How will the rights to information and defense be respected, which are in any case guaranteed under Article 24 of the Constitution and Article 6 of the European Convention for the Protection of Human Rights to any person under “Italian jurisdiction”? How is one supposed to apply European legislation on asylum and repatriation outside an EU member state? Or is this perhaps counting on the complicity of the UNHCR – which in a recent communiqué from its German office seemed to praise the Italy-Abania Memorandum – in order to accomplish the final nullification of the right to seek asylum in Europe?

According to Edi Rama, “those who don’t have the right [to asylum] are repatriated. But if Italy fails to do the repatriations, it will have to take them back.” In 2023, Italy managed to repatriate less than 5,000 people who were the object of expulsion or rejection proceedings; and the capacity of Italian CPRs has only increased by a few hundred places, despite splashy announcements that it would be doubled.

How are we supposed to accomplish in Albania what we haven’t been able to do in Italy, with the prospect of having to let into our territory those who were denied asylum in Albania and could not be repatriated? One of two things will happen: either this will lead to a mass of irregular immigrants for the exclusive benefit of the mafias in the Balkans, or Italy will have to take on the burden, both economic and involving great effort by the police forces, of bringing back to Italian territory those who have not been granted protection status but who couldn’t be repatriated to their country of origin. This is how propaganda nullifies the rule of law.

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