In a substantial report on the detention of foreign citizens, with a focus on the Italy-Albania protocol, the Court of Cassation highlights numerous critical issues of the agreement, also explaining that "the doctrine has expressed numerous doubts about its compatibility with the Constitution and with international law , dwelling specifically on the relationship between the Protocol and EU law".
In the paragraph dedicated to the relationship between the Italy-Albania protocol and the Constitution, the report of the Supreme Court's Office of the Supreme Court highlights numerous possible violations of constitutional rights, from the right to health to the right to defense . The agreement, for example, - writes the Supreme Court - fails to "identify precisely the category of people to which the agreement refers and by limiting itself to identifying them as 'migrants'... generates an overall disparity of treatment between foreigners to be brought to Italy and 'migrants' to be transferred to Albania".
According to the Court of Cassation, the agreement would be an obstacle to the right to asylum due to the lack of an "analytical discipline of the procedural aspects". Indications that would be necessary - according to the judges - to neutralize "the legal gap deriving from extraterritoriality, ensuring that migrants taken to Albanian sites have equal guarantees compared to migrants in Italian territory".
It was also observed that, as indicated by the Protocol, "detention is no longer envisaged as the last resort, as provided for by European legislation" , but constitutes "the only alternative indicated by the legislator, in violation of the guarantees protecting personal freedom".
A further criticality «has been identified in the material impossibility, in the case of detention abroad, of releasing the individual, once the effects of the detention title have ceased . In fact, according to the protocol, the foreigner cannot be released in Albania and must be brought back to Italy, with the consequence that, considering the technical times necessary for the transfer on a ship or by air, it appears highly probable that the foreigner will be detained sine titulo for several hours, if not even several days».
With regard to the right of defense, the Court emphasizes that "the modalities of exercise of the right of defense of foreign persons detained in Albania are not regulated by legislative provisions, but are entrusted to the discretion of the 'Italian person in charge of the center'". Finally, it was observed that the protocol - "in establishing that 'in the event of health needs which the Italian authorities cannot meet... the Albanian authorities shall collaborate with the Italian authorities responsible for the same facilities to ensure essential and non-deferrable medical care for migrants detained there' - may cause serious harm to the right to health of 'migrants', protected by art. 32 of the Constitution, given that the level of Albanian health care is not comparable to the Italian one ".
(Online Union)