ON THE PROTOCOL BETWEEN THE GOVERNMENT OF THE REPUBLIC OF ITALY AND THE COUNCIL OF MINISTERS OF THE REPUBLIC OF ALBANIA ON STRENGTHENING COOPERATION IN THE FIELD OF MIGRATION
Introduction
In the beginning of November 2023, the media made public news of the signing of the Protocol between the Government of the Republic of Italy and the Council of Ministers of the Republic of Albania, on strengthening cooperation in the field of migration, which had been unknown at any level of Albanian public debate and, therefore, not consulted publicly. On November 7, 2023, the protocol was published on the official website of the Prime Minister’s Office.[1] Ten days later, on November 17, the protocol was submitted for approval to the Assembly (Parliament) of Albania.
On December 6, 2023, 30 MPs of the Assembly of the Republic of Albania, filed with the Constitutional Court a request to check the constitutionality of the Protocol signed between the Council of Ministers of the Republic of Albania and the Government of the Republic of Italy, “On strengthening cooperation in the field of migration.” This request was submitted before the ratification of this Protocol, based on article 131, paragraph 1, letter “b,” of the Constitution. The group of MPs raised claims that the procedure of negotiation and signing was not respected, because the Protocol of cooperation is part of those categories of agreements that require the authorization of the President, given that it affects issues of the territory and fundamental rights, according to article 121, paragraph 1, letters “a” and “b” of the Constitution.
The College of the Constitutional Court, on December 11, 2023, after taking the case under preliminary review, decided to pass it on for review in the Meeting of Judges. The Meeting of Judges, on December 13, 2023, considered that the request meets the preliminary criteria of admissibility and decided to pass the case on for review in a plenary session, on the basis of documents. Based on article 52, paragraph 3, of law no. 8577, dated 10.02.2000 “On the organization and functioning of the Constitutional Court of the Republic of Albania,” amended, the review of the case in a session automatically suspended the procedures of ratification in the Assembly on the Protocol of cooperation, until the final decision of the Constitutional Court.[2]
- Legitimacy of the Group of Civil Society Organizations signing the Amicus Curiae
Based on the systematic and harmonious interpretation of articles 38/2 and 39/1/b of law no. 8577, dated 10.02.2000 “On the organization and functioning of the Constitutional Court of the Republic of Albania,” amended by law no. 99/2016 and law no. 45/2021, the signatory organizations of this opinion (Amicus Curiae) consider that they may be an interested party, with direct interest in the case being reviewed.
Although the requesters of this case are MPs of the Assembly of the RA, representatives of political forces of the parliamentary opposition, we wish to emphasize from the very start that our position on this case is independent, impartial, and non-political, and it seeks to protect before the Constitutional Court the principles of the rule of law and the highest interest and fundamental rights of asylum-seekers and refugees, in accordance with the Geneva Convention (Convention and Protocol “On the status of refugees,” of the United Nations of 1951 and 1967).
- Failure to obtain authorization of power from the President of the Republic of Albania
In its jurisprudence, the Constitutional Court underscored that failure to obtain the authorization of power from the President of the Republic to enter into agreements or to grant authorization of power, according to law, runs counter with article 7 of the Constitution, which guarantees the principle of separation and balancing of powers. This principle extends not only on the three branches of power – executive, legislative, and judiciary – but also on other independent constitutional bodies, whose competencies are envisaged by the provisions of the Constitution. According to this principle, no body, whether part or not of one of the three branches of power, may interfere with addressing and resolving issues that, on a case-by-case basis, would represent the central subject of activity of other constitutional bodies or institutions.[3]
As in the decision of the Constitutional Court on the unconstitutionality of the maritime agreement between the Republic of Albania and that of Greece, we consider that the lack of proper authorization of power of the Albanian delegation from the President of the Republic in signing this protocol (between the RA and the RI) has led, as a consequence, to the violation of the competence of the head of state as the competent body for representing the Albanian state in relations with abroad. The lack of proper authorization of power of the Albanian delegation runs counter with the domestic constitutional and legal framework with regard to the definition of formal criteria for the negotiation and entering into international agreements. As a result, this incompatibility affects also the essence of the protocol entered into by the Albanian state, which, in any case, should express its will in accordance with the requirements of domestic legislation.[4]
Therefore, we consider that the protocol signed between the RA and the RI was entered into in violation of the requirements of articles 4,7, and 92/ë of the Constitution.
- Incompatibility with the Constitution and International Law
The Constitutional Court, based on article 131/b of the Constitution, examines international agreements before ratification by the Assembly, regarding their compatibility with the Constitution, keeping in mind the domestic right and concretely provisions of the Constitution, as the highest normative act in the country and, depending on the subject of the agreements, also the international right and relevant practice of international courts and arbitrages in similar or analogous cases to the case under review.
The protocol envisages two references, which have served as the legal basis for drafting it, namely the Friendship and Cooperation Treaty, between the Republic of Italy and the Republic of Albania (1995) and the protocol between the Ministry of Interior of the Republic of Italy and the Ministry of Interior of the Republic of Albania, for strengthening bilateral cooperation in the fight against terrorism and trafficking of human beings (2017). Besides these, the two respective Governments, signatories of the bilateral agreement, take into consideration the interest of the sides to encourage increasing bilateral cooperation in all sectors, including that of the perspective for the accession of the Republic of Albania into the European Union.
It is worth emphasizing that contrary to the provisions of the Protocol for strengthening cooperation in the field of migration, the very Friendship and Cooperation Treaty that the Protocol is based on, from article 1, devotes special focus to the development of relations on the basis of mutual cooperation and respect, in accordance with the principles of sovereignty, territorial integrity, equal rights, human dignity, and respect for fundamental human rights and freedoms. As will be analyzed further in this opinion, in our assessment, the protocol is not guided by and does not substantially reflect these principles in the contents of its provisions.
Furthermore, we consider that as a function of the very good neighborly relations that have existed between the two states, such a protocol should not be positioned and should not condition indirectly the perspective for Albania’s accession into the European Union. This is confirmed in the position held by the European Council on Refugees and Exiles (ECRE), according to which “there are different financial and diplomatic benefits for Albania, although the agreement appears to depend on Albania’s progress in the accession process, which is a policy guided by the Commission,” and not by any of the parties involved in this bilateral relationship.
The Protocol itself refers in its provisions to EU law. If we take into consideration this fact, we should first refer to article 78 of the Treaty on the Functioning of the European Union (TFEU), which secures the legal basis for the creation of a Common European Asylum System (CEAS), which consists of different parts of secondary legislation, including those that regulate procedural aspects of the review for the request for asylum in the sense of granting a uniform status within the Union, such as the Asylum Procedure Directive).
The island of Lampeduza in Italy, categorized as a border hotspot area, faced in the third week of September 2023 an influx of 11,000 migrants. Meanwhile, in Italy, during the same period, over 127,000 migrants have landed in Italy, more than double the number in the same period of the previous year.[5] Based on this migratory emergency, only a short while before this Protocol was signed, the Prime Minister of Italy, Ms. Meloni, in a series of public statements, made it known that she would not allow the transformation of Italy into a refugee camp for Europe. This solution in the spirt of solidarity has not yet been found and, other EU countries such as France have strengthened border checks with Italy to stop illegal migratory movements coming from Italy.[6]
Regarding the above, we note that this protocol comes about in the circumstances of great migratory flows that Italy has been faced with in recent years and a lack of readiness from the majority of EU member countries to share the burden in accordance with provisions in the Lisbon Treaty, according to the principle of shared responsibility. Yet, for Albania, which is not yet an EU member country with full rights, sharing the principle of “responsibility” with Italy bears high premises for limiting migratory flows and infringing upon the rights of asylum-seekers and refugees who seek to go through EU migratory routes, as will be analyzed further.
- Independence and territorial entirety
According to article 4 of the Protocol, the agreements entered into between these authorities and subjects who will be accommodated in the mentioned structures, are subjected exclusively to Italian jurisdiction (Article 4). This provision runs counter with the international concept of a sovereign state, according to which each state has the right and full obligation to implement relevant and unique legislation within the borders of territorial jurisdiction. The independence of the Albanian state and the entirety of its territory find protection in article 3 of the Constitution, while according to article 2 thereof, sovereignty in the Republic of Albania belongs to the people, which exercises it by means of its representatives or directly.
- Lack of Public Consultation
The publication of the protocol, after its approval by the two heads of the Executive (Albanian and Italian) and the lack of preliminary consultations in both countries, is not a positive indicator of the degree of participation of citizens in public life and the level of democratization in the country. Good governance in a democracy presupposes the active participation of citizens and Civil Society in public life. It is worth emphasizing that the engagement of the public in policymaking reflects international standards on civil and political rights described in international human rights treaties that our country adheres to (such as the International Covenant on Civil and Political Rights). This is particularly important in the context of the EU integration process, which requires that civil society or groups of interest become familiar and are considered appropriately competent and relevant partners in many key reforms the country is undergoing, or in cases of special public interest. The screening report on Albania explains that the Copenhagen political criteria require that candidate countries consolidate “stable” democratic institutions before EU accession. The functioning of democratic institutions requires specific and structured engagement and, in order to be meaningful and inclusive, it needs to be conducted on three main pillars,[7] one of which is the role of civil society, including legal, regulatory, and policy frameworks on civil society organizations (CSOs), as well as a broader context for a favorable environment.[8] The report also notes that public consultation with civil society and groups of interest remained formal. Interaction with CSOs and groups of interest is occurring at the formal level, although it may be intensified further and developed into more meaningful exchanges.[9]
- Lack of clarity and predictability
The European Court of Human Rights has stressed that every intervention should be legitimate (“such as in accordance with the law,” article 8/2 of the ECHR). The requirements of “lawfulness” indicted/involve the criterion of clarity and predictability of the law. Predictability expresses protection against arbitrariness both from security agencies and oversight authorities.
In its jurisprudence, our Constitutional Court has stated that juridical certainty itself, as an element enshrined in the fundamental principle of the rule of law (article 4 of the Constitution), has as an essential requirement that the law in general or special provisions of it in their content should be clear, established, and understandable (see decision no. 9, dated 26.02.2007 of the Constitutional Court).
The signatory organizations of this Amicus Curiae note that the content of this protocol reflects a series of ambiguities that might result in violations of a potential and real nature of the rights and freedoms of asylum-seekers and refugees.
The effects of legal uncertainty that derive from the fact that the provisions of the Protocol are unclear and the created differences have been underscored as disturbing also by the Commissioner for Human Rights of the Council of Europe who stresses that “In practice, the lack of legal certainty will likely undermine crucial human rights safeguards and accountability for violations, resulting in differential treatment between those whose asylum applications will be examined in Albania and those for whom this will happen in Italy.”
According to statements in the media by high-level functionaries of the Albanian state, two receiving centers will be established in the territory of the Republic of Albania, one of which in Shëngjin and the other in Gjadër,[10] part of the territorial jurisdiction of Lezha Municipality. referring to Annex 1 of the Protocol, only the term area is mentioned, categorized as ‘area destined for establishing structures for entry procedures’ and the ‘area destined for realizing structures for the conditions of recognition of international protection and repatriation of migrants who do not have a right to enter and stay in the Italian territory.’ The use of the terminology in plural, ‘areas,’ may create premises for the creation and establishment of other potential ones in the future. Referring to public data from, Memaliaj Municipality has recently sent a letter to the Albanian Prime Minister, offering itself to shelter part of the emigrants, as a sign of hospitality that Albanian migrants have found in European countries.[11]
The contents of article 4 of the Protocol reflect a dualism of competences between responsible Albanian and Italian authorities. Competent Albanian authorities should allow the entry and stay in the Albanian territory of migrants sheltered in these structures while it remains unclear how respect for main obligations on the part of competent Italian authorities will be guaranteed.
While the areas defined in the Protocol[12] are immovable properties owned by the Albanian state, based on the fact that the structures will be constructed and managed, in accordance with relevant Italian legislation, without any need for a construction permit or other similar formalities required by Albanian legislations (article 5), we note that the state does not guarantee the administration of the immovable property in accordance with article 12 of law no. 8743/2001 “On immovable state properties,” updated. Therefore, the constitutional principle, guaranteed in paragraph 1 of article 4 of the Constitution, according to which the law represents the basis and boundaries of the activity of the state, is infringed upon.
We judge that the Protocol is unclear as to how cases of potential violations of the rights of these migrants by employees of Albanian institutions, at the service of the camp, will be handled. In these cases, the parties may find themselves in front of implementation of Albanian legislation, which inevitably is not in full compliance with EU legislation and, therefore, does not adhere to the best European practices.
Also, the scope of implementation of Albanian legislation is unclear, in case the citizens who exit in an unauthorized manner from structures built on the relevant areas, and further violate public order and safety or the rights of other Albanian citizens through their unlawful actions or inaction. Will local authorities, in this case, proceed by accompanying foreign citizens to the structures they are accommodated i or restrict their liberty at Albanian, closed, law enforcement institutions?! The fact that the Protocol (article 6.8) envisages exemption from sequestration or other similar measures in the Albanian legal framework, of official documents kept in any capacity by Italian authorities and Italian personnel, raises questions about the enforceability of Albanian legislation. Even if the latter is implemented, it is not clear what happens with the asylum procedure of the citizens in question.
Important aspects linked with the lack of clarity of this protocol seriously call into question the rights and freedoms guaranteed in the European Convention of Human Rights, as will be analyzed in the following section.
- Violation of international standards in the field of asylum and the rights and freedoms envisaged in the European Convention on Human Rights
The Protocol aims at managing the scheme of migratory flows that have affected the neighboring country, Italy, by enabling the dispatch and accompaniment of those “Migrants,” citizens of third countries and those without citizenship for which the existence of conditions for entry, stay, or residence in the Italian territory, should be or has been verified, their accommodation in structures built in the defined areas in the Albanian territory, which will be managed by the Italian state, the conduct of border or repatriation procedures envisaged by Italian and European legislation and for the time strictly necessary for that purpose, while they are physically located in these structures built in the Albanian territory.
Albanian authorities justify this protocol with the hospitality that Italy has demonstrated toward Albanian citizens during the difficult years of emigration after the fall of the totalitarian regime and based on the spirit of cooperation, hospitality, and integration that the Italian state and people have demonstrated toward hundreds of thousands of Albanian migrants through the years. If this purpose was true, the contradiction that arises is how could Albania, with a surface ten times smaller than that of Italy, have more space than the latter for building receiving centers (structures) for migrants coming from Africa? Clearly, the real purpose of the agreement is to reduce migratory movements toward Italy and this does not reflect Italian hospitality toward Albanian citizens who chose to migrate to Italy, also for the arguments that will be presented further.
Citizens of third countries coming from Africa and caught in Italy will be accommodated in Albania, in the areas (structures) used by the Italian state, which are subjected to the security regime at two levels (Italian authorities will be responsible for guarding and order inside the areas while Albanian authorities will have responsibility for the outside perimeter).
Referring to article 6, paragraph 5 of the Protocol, Italian authorities will take the necessary measures to secure the stay of migrants within the areas, not allowing their unauthorized exit to the rest of the territory of the Republic of Albania, both during the length of administrative procedures and upon their conclusion. Thus, the migrants who will stay in these areas will be subjected to restriction of liberty and real ‘detention,’ in violation of the provisions of article 38 of the Albanian Constitution and article 5 of the European Convention of Human Rights and article 2 of Protocol no. 4 of it, which guarantee the freedom of movement and the right to liberty and safety. Therefore, these centers may not be hospitable, but they are real migrant and refugee camps. Given that Albania, for these citizens, is neither a transit country nor a country of origin, the effects that this Protocol will bring about, in our assessment, will be restrictive toward migratory movements and may lead to changes in migratory routes for smugglers who help them, to reach at any cost EU countries, putting at risk their lives and health. Our country, as part of the known migratory Western Balkan Route[13] does not offer sufficient guarantees for being safe, because in many cases, migrants from third countries have fallen prey to criminal groups of smugglers, who have put them through illegally and in some cases, in a way that has been dangerous to their lives and health, to EU countries. Furthermore, it remains unclear what will be the conditions to legitimize the authorization of these migrants to exit the structure, whether it will be Italian, Albanian authorities or both, as long as there will be two security perimeters administered by each side respectively.
Experts at Amnesty International state that this bilateral agreement violates the principle of “non-refoulement,” which is protected by international and European law and for which Italy has been penalized earlier by the European Court of Human Rights.[14] The principle of non-refoulement is protected in article 78(1) TFEU and article 18 and 19 of the EU Charter of Fundamental Rights.
High Commissioner for Human Rights at the Council of Europe Dunja Mijatovic states that the Protocol “measures significantly increase the risk of exposing refugees, asylum seekers and migrants to human rights violations. The shifting of responsibility across borders by some states also incentivizes others to do the same, which risks creating a domino effect that could undermine the European and global system of international protection.”[15]
Taking into consideration the concerns of these international organizations, as well as the conditions of the distance that exists between the two countries, and the principle of sovereignty in force on each of them, we highlight the potential risk of both the Italian and the Albanian side not guaranteeing the obligations deriving from the Geneva Convention, with regard to the principle of non-refoulement and the principle of immediate access to justice that migrants should have in case of refusal of their requests.
In its preliminary position, the UNHCR underscored that “Under international refugee law, the primary responsibility for assessing asylum claims and affording international protection rests with the State in which an asylum-seeker arrives, whether at land borders or at sea, and seeks that protection. This obligation remains unaltered by the transfer of asylum-seekers or extraterritorial processing. While legal transfer arrangements on asylum cooperation may be made between States, such measures must ensure and enhance refugee protection.”[16]
According to article 17/2 of the Constitution of the Republic of Albania, restrictions of human rights and freedoms envisaged in this fundamental act of Albanian legislation may not infringe upon the essence of freedoms and rights and, in no case, may surpass the restrictions envisaged in the European Convention of Human Rights. In evaluating respect for restrictions envisaged by the ECHR, decisions of the European Court of Human Rights (ECtHR) are an important reference. In the case of Italy, the ECtHR has found violations of the European Convention of Human Rights, with regard to the modalities of detention in what are called Hot Spots where migrants are held in the neighboring country. the current situation in Italian Hot Spots does not point to a positive practice, which would lead Albania to creating disagreements in front of the ECtHR, which has already found the violation of article 3 (prohibition of Torture) and article 5 (right to liberty and safety), because of a clear legal basis for detention and the existing conditions in Hot Spot centers in Italy. This lack of clarity is reflected also in the case of the protocol signed with Albania.[17] It is worth emphasizing that although the management of the receiving structures to be built in Albania, according to the Protocol, will be left to Italian authorities, the fact that they are in Albania would make Albanian authorities potentially (co-responsible) responsible for the same violations of human rights violations attributed to Italian authorities. In this sense, in many cases, the ECtHR has condemned the authorities of one country for transfer to another country, because they were aware of the situation in the other country or condemned the authorities of a country.[18]
Another interesting aspect, in light of ECtHR case law, has to do with the modalities of the transfer of migrants to Albania. This aspect is very unclear and ambiguous in the text of the Protocol and may lead to clear violations of article 3 (prohibition of torture) and 5 (right to liberty and safety) of the ECHR, as this court has stated recently in a decision regarding Italy and the modalities for the transfer of emigrants. The Protocol does not clarify adequately how emigrants will be transferred to the receiving structures built in areas of the Albanian territory, after rescue operations and how they will be transferred outside the territory of Albania at the end of their stay in these areas. As a result, the procedures for the capture, transfer, and their detention may represent violations of articles 3 and 5 of the ECHR.[19]
The Protocol does not provide adequate guarantees for the non-transfer of individuals belonging to groups in need and especially minors in centers. Taking into consideration the sanctions that the ECHR has issued against Italy for the detention of unaccompanied minors in Italian reception centers, and due to their identification as adults, the risk that minors and vulnerable persons will be kept in receiving structures built in the Albanian territory is very high.[20]
Beyond the guarantees that both sides have articulated in their public appearances, Italian structures responsible for reviewing migrants’ petitions, in the conditions of their transfer and action in a sovereign country like Albania, although these areas are under Italian authority, may not act in the same conditions with regard to guarantees about the right to due legal process as they act with migrants who are physically located in Italian territory.
We notice that the complaint procedure against refusal decisions by Italian authorities remains unclear in terms of the contents of the provisions of the Protocol, as to whether it will be conducted by video-conference or the use of electronic routes (remotely). In any event, acting remotely raises questions over important principles of the functioning of the functioning of the rule of law and standards for due legal process envisaged in article 42 of the Constitution and article 6 of the ECHR. As a result, control exercised by Italian authorities in contact with emigrants in these areas is weakened, both by superior bodies and by judicial bodies, thus creating a difficult burden of evidence for emigrants for potential violations and in addressing the migrants’ requests. In these conditions, potential premises are created for an infringement of their effective access to asylum procedures and the justice system.
Guaranteeing the right to defense, as an important element of the right to due legal process, in accordance with article 9.2 of the Protocol, is considered to be provided through the creation of access to lawyers’ structures, their aides, and international bodies and European Union agencies that provide advice and assistance for asylum-seekers, while a similar provision is lacking for non-profit Italian and Albanian organizations that provide free legal services for this category. Questions are also raised upon the effectiveness of defense as long as for Italian lawyers, their physical presence will be difficult vis-à-vis potential violations that these citizens may be faced with, both in the asylum procedure and with regard to their treatment and conditions in the accommodating facilities.
Based on the above arguments, we consider that the Protocol does not provide adequate guarantees regarding full respect for the right to protection (according to article 6 of the ECHR) and the right to effective legal remedy, resulting in potential violations of article 13 of the ECHR especially with regard to articles 3 (prohibition of torture), 5 (right to liberty and safety), and 8 (right to respect for private and family life) of the Convention, taking as a reference the decisions of the ECtHR toward Italy highlighted in the footnotes of this section.
- EU Legislation Implications
According to the preliminary evaluation regarding the latest developments in the European Commission after it became familiar with the Protocol, the Member States shall have the right to extend their jurisdiction over other countries.[21]
However, in 2018, the EU had an entirely opposite position. In the document that evaluates the legal and practical feasibility of landing options, the EC speaks against scenario 3, which has to do with the external processing of asylum petitions and/or procedures for return to a third country. According to the EC, the sending of an asylum-seeker to a third country without processing his request for asylum in the EU country represents a return not allowed according to EU and international law. In order to allow individuals to “apply” for asylum outside the EU would require the extraterritorial implementation of EU law, which presently is neither possible nor desirable. The only way for this to function would be the creation of the EU asylum system and EU courts to process requests by an appeal structure at the EU level. Besides the need for a great institutional transformation, this scenario would require considerable resources available to the new EU courts and bodies for asylum. We note that such a reformation and infrastructure does not appear to have been guaranteed in practice, after five years, at the time when the Albanian Prime Minister and the Italian Prime Minister signed this Protocol.
The model presented through the Protocol for the extra-territorial administration of migration by the Italian Government, by building accommodating structures in the Albanian territory, is like the Australian model, so-called “Australia’s off-shore policy.” The concept of externalizing migration procedures remains a controversial issue. EU practice has seen two types of categorizations of measures that have been undertaken by member states that have been faced with migratory flow emergencies. More concretely, the first category includes states that have passed border management responsibilities to third countries, such as Libya and Morocco, through financial and technical assistance, which would enable them to avoid departures. Meanwhile, the second category includes countries that have used the concept of the third safe country or first asylum country and safe country of origin in the Asylum Procedure Directive (APD) to declare asylum petitions unacceptable without reviewing the merit of their application or review them on the basis of an accelerated procedure based on individual evaluation to allow the applicant to oppose the supposition of safety. Evident examples are linked with the EU-Turkey declaration and the EU-Tunisia Memorandum of Understanding, whereby Turkey pledged to readmit asylum-seekers after the application of the safe third country concept and Tunisia pledged to readmit its citizens according to the concept of the safe country of origin.[22]
In the majority of cases, the situations monitored in these receiving centers with accommodating capacities have shown that “There has been widespread documented physical, mental, and sexual abuse against men, women, and children. Senate inquiries have found that conditions in the processing centers are ‘not adequate, appropriate or safe for the asylum seekers detained there’ with several cases of abuse, self-harm, and neglect”.[23] Similar to this practice, analyzed and monitored earlier by international actors, Italy and the EU have a similar agreement also with Libya Refugees placed in structures established for this purpose in Libya have testified to different abuses of human rights, including the use of physical violence, torture, and rape. Others have reported also presence of murders inside the camps, while those accommodated told the prestigious outlet ‘The Guardian’ that migrants are dying of illnesses and hunger.[24]
In general, we also believe that it may be important to emphasize how the Protocol may have implications on Albania’s EU accession process for the following reasons:
First, the evaluation of the accession process includes as a precondition full respect of rights envisaged in the ECHR and also of the principles established in the ECHR jurisprudence. The Protocol creates real premises for non-respect toward them as argued earlier in this document.
Secondly, when Albania becomes a member of the European Union it will have to ensure full implementation of EU law and not partial implementation. Therefore, every instance of unlawfulness/non-compliance with the EU law deriving from the Protocol (EU law on asylum and return) may have consequences also at this level.
Lastly, besides the references to decisions of the European Court for Human Rights, potential violations of human rights and incompatibility with EU law, may also be raised before the Court of Justice of the EU (CJEU), which may be considered competent due to the extension of Italy’s implementation of the law (even indirectly) outside the territory of the EU.
In closing, we demand that the Constitutional Court will evaluate with adequate care all the arguments presented in this Amicus Curiae, asking that this Protocol be declared in contravention of the Constitution of Albania, the European Convention of Human Rights, ECtHR jurisprudence, the Geneva Convention on Asylum, and international law in general.
Signatory organizations :
- A Buon Diritto Onlus APS, Itali
- ARCI APS, Itali
- Associazione per gli Studi Giuridici sull’Immigrazione
- Civil Rights Defenders, Zyra në Shqipëri
- Drejtësi Sociale
- Fondacioni Shqiptar për të Drejtat e Personave me Aftësi të Kufizuar (ADRF)
- Grupa 484
- Grupi Shqiptar i të Drejtave të Njeriut (GSHDNJ)
- Helsinki Committee for Human Rights in Serbia
- Helsinki Committee for Human Rights, North Macedonia
- Hrvatski Pravni Center, Kroaci
- Instituti i Kulturës Rome në Shqipëri (IRCA)
- Albanian Helsinki Committee
- Lëvizja Rinore Egjiptiane dhe Rome
- Macedonian Young Lawyers Association
- Programi për të Drejtat Civile Kosovë
- Qendra “A.L.T.R.I”
- Qendra Aleanca Gjinore për Zhvillim (GADC)
- Qendra Europiane
- Qendra H.A.N.A (Hand to Hand Against Nation Apathy)
- Qendra Kombëtare për Shërbime Komunitare (NCCS)
- Qendra Kosovare për Rehabilitimin e të Mbijetuarve të Torturës
- Qendra për Drejtësi Gjinore
- Qendra për Studimin e Demokracisë dhe Qeverisjes
- Qendra Psikosociale “Vatra”
- Roma Versitas Albania
- Rrjeti i Fuqizimit të Gruas në Shqipëri (AWEN)
- Shërbimi Ligjor Falas Tiranë (TLAS) ok
- Shoqata Multifunksionale për Kulturë, Edukim dhe Zhvillim (MKEZH)
- Vasa Prava BiH, Bosnia dhe Hercegovina
- YMCA Albania
[1] https://www.kryeministria.al/newsroom/protokoll-ndermjet-qeverise-se-republikes-italiane-dhe-keshillit-te-ministrave-te-republikes-se-shqiperise-per-forcimin-e-bashkepunimit-ne-fushen-e-migracionit/
[2] https://www.gjk.gov.al/web/Njoftim_per_shtyp_2934_1-94.php
[3] Decision no. 15, dt.15.04.2010 of the Constitutional Court, paragraph no. 47
[4] Ibid, paragraph 52.
[5] https://www.theguardian.com/world/2023/sep/20/ten-years-after-tragedy-tiny-lampedusa-at-centre-of-migration-crisis-again
[6] https://cde.news/i-wont-let-italy-become-europes-refugee-camp-meloni/
[7] The two other pillars have to do with: 1. Electoral process, including the functioning of the electoral administration, media in the electoral campaign, and political party and electoral campaign financing, and 2. Functioning of parliaments in a democratic system.
[8] https://neighbourhood-enlargement.ec.europa.eu/screening-report-albania_en
[9] Ibid.
[10] https://shqiptarja.com/lajm/marreveshja-per-emigrantet-balla-italia-do-ti-perdore-pa-shperblim-zonat-shqiptare
[11] Marrëveshja Shqipëri-Itali, bashkia e Memaliajt vetë ofrohet për strehimin e refugjatëve ilegalë – Albeu.com
[12] ‘The area destined for the construction of structures for entry procedures’ and ‘the area destined for the realization of structures for verifying the conditions of recognition of international protection and the repatriation of migrants who do not have a right of entry and of stay in the Italian territory’
[13] Western Balkan Route
[14] Hirsi Jamaa and Others v. Italy (2012, ECtHR)
[15] Marrëveshja Itali-Shqipëri rrit më shumë tendencën shqetësuese evropiane drejt trajtimit nga jashtë të procedurave të azilit – Zyra e Këshillit të Evropës në Tiranë (coe.int)
[16] https://www.unhcr.org/news/press-releases/unhcr-transfer-arrangements-asylum-seekers-and-refugees-must-respect
[17] CASE OF J.A. AND OTHERS v. ITALY – Application no. 21329/18; CASE OF A.S. v. ITALY – Application no. 20860/20; CASE of A.B. v. ITALY – Application no. 13755/18; CASE OF A.S. v. ITALY (Application no. 20860/20)
[18] MSS v. BELGIUM AND GREECE – application n. 30696/09 and TARAKHEL v. SËITZERLAND – application n. 29217/12
[19] CASE OF A.E. AND OTHERS v. ITALY – Applications n. 18911/17 and 2 others
[20] Darboe Camara, M.A. v. Italy – Application 5797/17, A. T. and others v. Italy – Application no. 47287/17
[21] https://www.brusselstimes.com/eu-affairs/815560/migration-deal-physically-in-albania-legally-in-italy
[22] http://www.sidiblog.org/2023/11/15/on-the-incompatibility-of-the-italy-albania-protocol-with-eu-asylum-law/
[23] https://academic.oup.com/jrs/article/36/2/271/7081292
[24] https://www.theguardian.com/world/2018/may/08/italy-deal-with-libya-pull-back-migrants-faces-legal-challenge-human-rights-violations
