New Albania decree, Schiavone: ‘EU law always applies’

«With this decree the government believes it can bind judges to a pre-arranged list of safe countries, but European law on asylum continues to be superior». He has no doubts Gianfranco Schiavoneamong the leading migration experts and member of Asgi, the legal studies association on Immigration: «Even if the list of safe countries is approved by decree, which is a primary rule, judges will be able to continue to decide not to validate detentions in light of the ruling of the European Court of Justice.”

Why is it still binding?

«The sentence sets binding interpretative criteria. It is a ruling of the Grand Chamber, which cannot be appealed, which also defines the competences of the judge, called to evaluate whether a country is safe or not based on very precise parameters, established by the Court itself».

The government claims that the definition of “safe country” is a political act.

«It’s serious. Individual rights and their assessment are confused with evaluations of international politics. Granting asylum to a person is not equivalent to a declaration of hostility towards the country from which they come. And it is very serious to argue that the judge does not have the competence to evaluate whether a country is safe.”

Now what could happen in court?

«The judge called upon to decide whether or not to validate a detention, in the context of an accelerated border procedure, will have to continue to evaluate case by case, country by country. If he does not deem it safe, he can disapply the decree.”

In short, is everything as before?

“In giving reasons, you cannot limit yourself to complying with the ECJ ruling, but you will have to explain why that law is not compatible with European legislation.”

For Minister Nordio, judges can at most appeal to the Constitutional Court.

“If they have doubts, they can raise a question of illegitimacy due to conflict with European law before the Council, but also simply disapply the decree.”

In case of appeal to the Consulta, what happens to the detained people?

“In case of doubts about the rule, the proceedings cannot continue and the person must be released.”

So does detention become ineffective anyway?

“It couldn’t be otherwise if there is no certainty about the constitutionality of the law.”

Recalling it in the premises, the government says it wants to “anticipate” one of the EU regulations that will come into force in 2026

«It is part of a new system, which includes new rules, procedures, nine regulations and a directive. It is not a market from which one can take one piece and discard another, anticipating it at will without the entire system being fully implemented.”