The press conference was called late in the evening after an hours-long meeting of the Italian government at Palazzo Chigi. Giorgia Meloni’s government has drafted a new law specifying the countries considered safe for the accelerated asylum procedures to which migrants are subjected. It did so after the judges of the Rome court on 18 October did not validate the detention of 12 asylum seekers who were forcibly transferred to new detention centres in Albania and then returned to Italy following the court’s decision.
The case has sparked an institutional clash between the judiciary and the government and threatens to undermine the protocol that Rome signed with Tirana in November 2023, which led to the construction of two detention centres managed by Italy in Shëngjin and Gjadër, on the other side of the Adriatic Sea.
After the humanitarian organisations, the judges come under attack. “I don’t think judges should decide which countries are safe, but the government,” said Prime Minister Meloni on 18 October, making it clear that she wanted to continue outsourcing asylum applications.
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During the press conference on 21 October, Justice Minister Carlo Nordio, a member of the Prime Minister’s Fratelli d’Italia party and a former magistrate, accused judges of not having “understood and read” the European Court of Justice’s guidance on the concept of safe countries and declared that this new law could not be disregarded by judges, prompting much criticism from experts.
“A judge cannot disregard a national law, I would tend to exclude that he could do so,” the minister told the press. But experts, such as the lawyer Fulvio Vassallo Paleologo, accused him of “lying, knowing that he was doing so”.
For Chiara Favilli, professor of European law at the University of Florence: “It is necessary to respect European law. Among other things, it is thanks to this legislation that we have established the list of safe countries, so we cannot decide to give the definition of ‘safe country’ the meaning we want”.
For the lawyer Gianfranco Schiavone, president of the Italian Solidarity Consortium and member of the Association of Legal Studies on Immigration (ASGI): “The European norm is superior to the national one; in case of conflict between the two, the latter must be disregarded by the judges”. For Schiavone, the new law on safe countries would be in conflict with European legislation, in particular with Directive 32 of 2013, the so-called “Procedural Directive”, as confirmed by the ruling of the European Court of Justice of 4 October 2024, which established that a country can only be considered safe if it is safe for everyone (including minorities) in any part of its territory.
The legal experts were vindicated by the decision of the Court of Rome on 11 November, when it referred to the Court of Justice of the European Union the decision on the detention of seven asylum-seekers, the second group of migrants from Egypt and Bangladesh, who were taken to Albania on an Italian military ship after being rescued in the Mediterranean. Italian judges have identified a conflict between the Italian government’s new ‘safe countries’ decree and European Union law.
In a press release on 11 November, the Rome court said: “The judges considered it necessary to order a preliminary reference to the Court of Justice of the European Union, formulating four questions similar to those already ordered in recent days by two panels of the same section […]. The preliminary reference has been chosen as the most appropriate instrument to clarify various aspects of dubious compatibility with the supranational discipline that has emerged following the rules introduced by the Decree-Law”.
Giorgia Meloni’s decision to draft a new law and proceed with forced returns to Albania, despite the negative opinion of the courts, is reminiscent of the story of British Conservative Prime Minister Rishi Sunak, when the Supreme Court of the United Kingdom rejected London’s agreement with Kigali to outsource asylum applications to Rwanda. In this case, too, Sunak tried to write another law to circumvent the court’s ruling. Other Italian courts have also asked the Luxembourg-based court for an opinion: the courts of Catania, Palermo, Bologna and Rome.
In its request to the European Court of Justice, the Bologna court used a bold parallel with Nazi Germany, which Meloni described as “propagandistic” in a television programme.
“One could say, paradoxically, that Germany under the Nazi regime was an extremely safe country for the vast majority of the German population: with the exception of Jews, homosexuals, political opponents, people of Roma ethnicity and other minority groups, over 60 million Germans enjoyed an enviable level of safety. The same could be said of Italy under the Fascist regime. If a country were to be considered safe when the safety of the majority of the population was guaranteed, the legal concept of a safe country of origin could be applied to almost any country in the world, and would therefore be a concept without any legal consistency,” reads the referral to the European Court of Justice.
On 25 October, the Bologna court asked the Court of Justice of the European Union to give its opinion and clarify its position on the new rule sought by Giorgia Meloni. The Court had been asked to rule on the case of a Bangladeshi asylum-seeker whose request for asylum was rejected because his country of origin was considered safe. But the Italian court asked the European Court of Justice to resolve “a number of conflicts of interpretation which have arisen in the Italian legal system and, more generally, in the regulation of the relationship between European Union law and national law”.
Meanwhile, the judge who requested the referral to the Strasbourg court has been attacked and threatened on social networks, particularly for aspects of his personal life such as his homosexuality. The same fate has befallen Silvia Albano, one of the six judges of the Rome court that did not validate the detention of migrants in Albania, who is under police protection after receiving death threats and threatening letters in recent days.
Also under protection are the Palermo prosecutors, who have asked for six years’ imprisonment for the current Deputy Prime Minister and Minister of Transport, Matteo Salvini, who is accused of kidnapping and refusal to carry out official duties for blocking more than one hundred migrants for 19 days on board a humanitarian ship, the Spanish Open Arms, off the coast of Lampedusa in August 2019, when he was Minister of the Interior.
On 20 December, Salvini was eventually acquitted, but in the meantime tensions between the executive and the judiciary are very high. “There is a declared intolerance of a power that does not respond to the government’s directives,” denounced the president of the National Association of Magistrates (ANM), Giuseppe Santalucia. “Magistrates are not the executive arm of the government,” he added during an extraordinary meeting in Bologna on 2 November. For the lawyer Vassallo Paleologo on X (formerly Twitter, his account has been suspended in the meantime): “The Italian government wants to give the judiciary a push before the verdict in the Salvini trial in Palermo. And to push for a reform that would separate the careers of magistrates in order to increase its control over prosecutors”.
This article was produced with the support of the European Media and Information Fund (EMIF). It may not necessarily reflect the positions of the EMIF and the Fund Partners, the Calouste Gulbenkian Foundation and the European University Institute.
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Publish date : 2025-01-15 02:18:00
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