The Court of Cassation says stop to CPRs in Albania, the sentence

A recent order by the Court of Cassation is set to mark a turning point in the decision, which the Italian government has long boasted about in Europe, to use the Gjader center in Albania as a CPR. Despite the ruling being of extraordinary importance, almost no one has spoken about it. On March 22, 2025, the prefect of Ancona ordered the expulsion of a Tunisian citizen with escort to the border and application of the measure of detention in the CPR in Bari; the measure was validated by the competent justice of the peace.

On 11 April, however, the Ministry of the Interior ordered the forced transfer of the same person to the Gjader centre in Albania, a centre where the interested party submitted an asylum application on 22 April. The Police Commissioner of Rome therefore ordered his detention in the same centre in Albania but in this case as an asylum seeker (legislative decree 142/2015 art. 6 c.3) to be held pending examination of the application. Just the following day, 23 April, the asylum application was examined with lightning speed, and finally rejected, by the territorial commission for the examination of asylum applications. However, on 24 April, the Court of Appeal of Rome did not validate the detention and ordered the return of the person to Italy, holding that on the basis of art. 9 of Directive 2013/32/EU on asylum procedures , the foreign citizen was not expelable or repatriable and had the right to remain in the territory of the State until the expiry of the deadline for filing an appeal or, if filed, until the decision on the request for suspension connected to the appeal itself.

The Ministry of the Interior challenged the decision of the Court of Appeal in Cassation, arguing that the structure located in the Gjader center is comparable to any CPR (repatriation center) located in the national territory (and similarly the wing of the Gjader center intended instead as a hotspot would be completely comparable to the few hotspots opened in Italy). The first criminal section of the Cassation hearing the case described above (and a similar case that in the same period had involved another foreigner of Algerian nationality) questioned the legitimacy, in light of European law, of the comparison of the Gjader structure with the CPRs and hotspots located in the national territory and therefore the legitimacy of the provision, in the aforementioned Italian-Albanian Protocol, to apply in such centers, "insofar as compatible" , the regulations of domestic and European law regarding the entry, permanence and removal of foreigners.

By merging the two proceedings, with decision no. 23105-25 it therefore made a preliminary reference to the Court of Justice of the European Union with which it asked the latter to establish whether the system of detention of foreigners expelled in the facilities opened following the Protocol between Italy and Albania, ratified with Law 14/24, does not conflict with European law, both in terms of compliance with European legislation on repatriations, and in relation to compliance with European legislation on asylum procedures. Rightly observing that the provisions contained in the Italy-Albania Protocol " do not transform the areas in question [ed. the Gjader centre] into a portion of Italian territory", the Court of Cassation focuses " precisely on the purpose of removal and, consequently, on the objective pursued by all detention measures" . The Court of Cassation bases its reasoning on the definition of “repatriation” contained in Article 3 of Directive 115/CE/2008 on repatriation as the process of removing a person to his or her country of origin or to a country of transit, if this is provided for by international agreements, or to a third country only in the case in which the foreign citizen voluntarily chooses to return there.

The agreement between Italy and Albania, however, does not fall into any of these hypotheses. Since according to European law ( art. 15 of the Return Directive ) detention is a measure that can be adopted only as a last resort when other less afflictive measures have proven, in practice, not possible, and can be maintained for the shortest possible period, according to the Court of Cassation "it is necessary to verify that the measures adopted - with the consequent deprivations of personal freedom that accompany them - are functional to ensuring repatriation as identified above" (or as defined by article 3 of the Directive). The Court of Cassation mercilessly highlights how " it is not possible to find precise and specific normative indices that document, in the Protocol [Italy-Albania] the pursuit of the objective of ensuring the repatriation of migrants in irregular conditions". Furthermore , "nowhere in the agreement is it established how the objective is intended to be implemented (...) in a territory which remains (...) that of a non-member state, even if subject to Italian jurisdiction - in terms of greater efficiency than in Italian territory with the necessary respect for the guarantees of the current European Union legislation".

According to the Court of Cassation, with whose interpretation I fully agree ( I have already written on the non-compliance of the Italian-Albanian Protocol with the Return Directive on these pages ), "the Member State does not have unlimited power to transfer them [expelled migrants] and can only order, in general, a repatriation within the terms of the aforementioned Article 3 of the Directive ". In other words, people in the process of being expelled cannot be taken and then held in a third country, compressing their fundamental rights, for the sole purpose of pursuing political goals at will (for example the desired deterrent effect on arriving in Europe). According to the Court of Cassation, the new Italian legislation represented by the Italy-Albania Protocol therefore conflicts with the entire framework of the Return Directive and in particular with Articles 3, 6, 8, 15 and 16 (in fact all the fundamental articles of the provision in question).

The Court of Cassation has finally also made a second preliminary reference to the Court of Justice of the EU which would be considered only "in the event of a negative response" to the first reference, or in the event that the Court of Justice makes a reconstruction (which I consider unlikely) of EU law that leads it to consider it legitimate to deport and detain expelled foreigners in a third country without there being any specific and concrete purpose of carrying out their repatriation. In this case, the question that the Court of Cassation poses to the Court of Justice is that of the conformity of the Italy-Albania Protocol with Article 9 of Directive 2013/33/EU (procedures) which provides that foreigners who have applied for asylum (even if detained) are authorised " to remain in the territory of a Member State for the exclusive purposes of the procedure, until the determining authority has taken a decision ". Therefore, if there is a limitation of freedom in the cases provided for by law, it can only be implemented in the territory of the EU State, not abroad. According to the Court of Cassation, in fact, the " very close and unavoidable connection between the request for asylum and the right to access the territory" cannot determine, in the case in which the request has been made within a CPR located abroad , "a lower level of guarantees and rights for the applicant, especially where (...) it is the Italian authorities themselves who have taken to a third country the subjects who, having arrived there, have asked to be admitted to international protection".

More or less in the same days in which the Court of Cassation made the described referral to the Court of Justice of the EU, the Italian Government further forced the existing legislation: according to an investigation conducted by the monthly AltrEconomia , on 9 May 2025, a plane rented for 139 thousand euros by the Italian Government picked up some foreigners of Egyptian nationality from the CPR in Rome and then landed in Tirana and from there departed for Cairo with other Egyptians who had been held in Gjader. An expulsion therefore carried out directly from Albania, without the return to Italy of the expelled persons in violation, in my opinion, of the Return Directive (the aforementioned art. 3 in particular) but also in clear violation of article 13 of the Constitution because the police operations conducted outside the Gjader centre in Albanian territory against the transported persons (transport and boarding from Tirana) are completely devoid of jurisdictional control. Unless there are new serious political pressures, the two preliminary references made by the Court of Cassation should, at least pending the ruling of the Court of Justice, lead to the total cessation of detention in the Gjader centre both of expelled foreign citizens who do not apply for international protection in Gjader, and of those who do apply for international protection in the same centre.

FROM

Gianfranco Schiavone