Failure to validate detention of asylum seekers deported to Albania under the Protocol between the Government of the Republic of Italy and the Council of Ministers of the Republic of Albania for the Strengthening of Cooperation in Migration Matters: if the country of origin is not a safe country of origin.
A country cannot be designated as safe if certain parts of its territory do not meet the substantive conditions for such designation.
The absence of the prerequisite for the application of the accelerated border procedure prevents legitimate detention in the facilities indicated by the Protocol, thus requiring the asylum seeker to be returned to Italy.
(unofficial machine translation)
Ordinary Court of Rome - XVIII Civil Section.
(Section specialized in personal rights and immigration)
N 42256 R.G. 2024
DECREE
The designated judge,
- having read the case file,
- having heard the retainer by videoconference,
- having noted the deductions of the Police and the defense, observes the following.
In Fact
1. Mr. V1, coming from Bangladesh, a State of which he declares himself to be a citizen, is detained in Albania, pursuant to Article 6-bis of Legislative Decree no. 142/2015, in connection with the request for international protection made by him and the conduct of the border procedure referred to in Article 28-bis, paragraph 2, lett. b), of Legislative Decree no. 25/2008, pursuant to the Protocol between the Government of the Republic of Italy and the Council of Ministers of the Republic of Albania for the Strengthening of Cooperation in Migration Matters (hereinafter “Protocol”), ratified and made executive by Law No. 14 of February 21, 2024, in execution of the Decree of the Questore of Rome of October 16, 2024, the validation of which is sought herein.
In law
Legal framework
a. The Protocol
2. It seems appropriate to recall Article 4 of the Protocol, the first four paragraphs of which provide as follows:
1. The Italian Party may implement in the Areas the facilities indicated in Annex 1. The Parties agree that the total number of migrants present simultaneously in the Albanian territory in application of this Protocol shall not exceed 3,000 (three thousand).
2. The facilities referred to in paragraph 1 shall be managed by the competent authorities of the Italian Party in accordance with the relevant Italian and European legislation. Any disputes that may arise between the said authorities and the migrants accommodated in the said facilities shall be subject exclusively to Italian jurisdiction.
3. The competent Albanian authorities shall allow the entry and stay in the Albanian territory of the migrants accommodated in the facilities referred to in paragraph 1, for the sole purpose of carrying out the border or repatriation procedures provided for by the Italian and European legislation and for the time strictly necessary for the same. In the event that the title of the stay in the facilities ceases for any cause, the Italian Party shall immediately transfer the migrants out of the Albanian territory. Transfers to and from the said facilities shall be the responsibility of the competent Italian authorities.
4. The entry of migrants into territorial waters and into the territory of the Republic of Albania shall take place exclusively by the means of the competent Italian authorities. Upon arrival in Albanian territory, the competent authorities of each of the Parties shall proceed separately with the fulfillments required by their respective national legislation and in compliance with this Protocol.
Article 6 below, in paragraphs 5 and 6, provides that:
5. The competent Italian authorities shall take the necessary measures in order to ensure the permanence of the migrants within the Areas, preventing their unauthorized exit into the territory of the Republic of Albania, both during the completion of the administrative procedures and at the end of the same, regardless of the final outcome.
6. In case of unauthorized exit of migrants from the Areas, the Albanian authorities will return them to the Areas. The costs arising from the implementation of this paragraph shall be borne by the Italian Party in accordance with Article 10(1) of this Protocol.
b. The law of ratification
3. In turn, the Law of Ratification of the Protocol, in Article 4(1), provides:
1. The Consolidated Text of Legislative Decree No. 286 of July 25, 1998, Legislative Decree No. 251 of November 19, 2007, Legislative Decree No. 25 of January 28, 2008, Legislative Decree No. 142 of August 18, 2015, and the Italian and European regulations concerning the requirements and procedures relating to the admission and stay of foreigners in the national territory shall apply to the migrants referred to in Article 1, paragraph 1(d) of the Protocol, mutatis mutandis.
c. Article 28-bis of Legislative Decree No. 25/2008: expedited border procedures.
4. Art. 4(3) of the Protocol allows migrants to enter and stay in Albanian territory in order to carry out border or repatriation procedures provided for by Italian and European legislation. Consequently, Article 28-bis of Legislative Decree No. 25/2008, which makes the applicability of the accelerated procedure subject to the conditions set forth in letters b) and b-bis) of Paragraph 2, becomes applicable.
5. The applicability of subparagraph (b) presupposes that the applicant has been apprehended for evading or attempting to evade border controls. However, the circumstances and manner of arrival of migrants at the aforementioned areas, as provided for in the Protocol, preclude the application of the accelerated procedure under subsection (b), making only subsection (b-bis) concerning countries of safe origin applicable.
6. As for the applicability of subparagraph (b-bis), which is anchored on provenance from a safe country of origin, the judgment of the Court of Justice of the European Union (Case C-406/22) of October 4, 2024 clarified that a country cannot be designated as safe if certain parts of its territory do not meet the substantive conditions for such designation.
d. The case at hand
7. Bangladesh, while considered a safe country of origin, has exceptions for certain categories of people, including members of the LGBTQ+ community, victims of gender-based violence, and ethnic and religious minorities. Therefore, in light of the ECJ ruling, Bangladesh cannot be considered a safe country for Mr. V1.
8. The absence of the prerequisite for the application of the expedited border procedure precludes a lawful detention of Mr. V1, including for other reasons given in the order.
9. The above considerations constitute diriment reasons to exclude the validation of the detention, absorbing any other possible critical profile related to the normative context of the detention itself.
Final observations
The non-existence of the necessary prerequisite for the border procedure and detention determines the absence of a title to the applicant for protection's stay in the facilities indicated by the Protocol. The judgment of validation of detentions is a means of guaranteeing the status libertatis, which must be regained in case of non-validation.
The Protocol's requirements, including Art. 4, para. 3, and Art. 6, para. 5, stipulate that in case of lack of a detention order in Albanian facilities, the applicant must be transferred out of Albanian territory and regain personal freedom by conduct in Italy.
P.Q.M.
Does not validate the detention.
Rome, 18/10/2024
Judge ***