The Cassation Court, Italy's highest appeals court, has issued a ruling set to stymie the Italian government's plan to fight irregular immigration through the implementation of a protocol between Rome and Tirana to operate two facilities Italy opened in Albania last October.

The cabinet on March 28 approved a decree allowing, among other things, one of the two Italian-run facilities in Albania to be used as a repatriation center (CPR) for irregular migrants.

The supreme Cassation Court's first criminal section has now ruled that if a detention order at a CPR has not been validated, asylum seekers must be immediately released and cannot remain under detention at a centre for a maximum of 48 hours, as established instead by the decree issued on March 28 regarding urgent measures to fight irregular migration.

According to the supreme court judges, the measure violates six articles of the Constitution so the matter must be examined by the Constitutional Court.

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Ruling on appeal filed by Senegalese migrant

The ruling examined an appeal filed by attorneys representing a Senegalese migrant who on May 9 was transferred to the Italian-run centre of Gjader in Albania.

On June 14, the man filed an application for international protection, which was rejected on June 30 by the Asylum Commission in Rome. On the same day, the Italian capital's police commissioner requested the validation of the foreigner's detention at the center in Albania.

Rome's Appeals Court on July 4 did not validate the request and the migrant was transferred to a facility in the southern Italian city of Bari.

On July 5, Bari's police chief issued a new measure for the detention of the asylum seeker at the CPR in the Puglia city for a period of 60 days with the possibility of extending it because the man was deemed "socially dangerous" following his conviction on attempted murder and drug trafficking charges.

The Senegalese man's lawyer, Salvatore Fachile, appealed to the Cassation Court, raising the issue of the constitutional legitimacy of an article of the law decree 142 from 2015, which was renewed with the decree issued on March 28, invoking the suspension of the measure and his client's immediate release.

The Cassation rejected the appeal, ruling however that the issue of constitutional legitimacy raised by the attorneys was "relevant and not manifestly unfounded".

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Personal freedom hampered, principle of equality violated

The supreme court judges in particular focused on the measure in decree No. 37, stating that the failure to validate the detention of an asylum seeker does not prevent the possibility of the "potential subsequent adoption of a detention measure", if deemed necessary based on the situation.

And when such a measure "is adopted immediately or no later than 48 hours after the failed validation has been communicated, the applicant remains in the Centre until a decision on the validation" is made, based on the legislation.

However, the court's ruling noted, such a provision could hamper personal freedom as "it provides for a detention order deemed as illegitimate by a judge (and which, for this specific reason, does not result to be validated by judicial authorities) not to be followed by the immediate release of the interested party" rather legitimizing the potential "permanence of a migrant at a repatriation center for a longer period of time" while waiting for a police commissioner to possibly issue a new detention decree.

According to the Cassation, the principle of equality could also be violated because the legislation sets limits on the personal freedom of individuals exclusively based on the fact that they are being held at a repatriation centre, contrary to those who are not in detention, for whom such a provision does not apply.

The Court has thus raised the issue of the constitutional legitimacy of the provisions, deciding to send the case to the Constitutional Court, as well as to the Prime Minister's Office and the Speakers of the Lower House and Senate.

The supreme court judges, in particular, highlighted in their decision that "a particularly sensitive issue such as the one of the (alleged) illegitimate limitation of personal freedom cannot but be immediately submitted to the Constitutional Court for examination when a violation of Constitutional laws is detected."

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