The Albania Protocol and the Safe Country Definition Dilemma

1. The facts

   The case originates from the practical implementation of the Italy-Albania Protocol, which provides for the transfer and detention of asylum seekers in extraterritorial centers. According to reports by daily newspapers such as Il Sole 24 Ore and Corriere della Sera, the judiciary was called upon to rule on the validation of the detention of several foreign citizens originating from countries included in the Government's list of safe countries. The proceedings reached the detention validation stage before the Specialized Immigration Section of the Court of Rome. The judges, noting that the origin countries (such as Egypt and Bangladesh) presented critical risks for specific categories of individuals or in certain areas of their territory, refused to validate the detentions and ordered the return of the migrants to Italy. This decision rests on the finding that the designation as a safe country must be absolute and cannot admit territorial or subjective exceptions, lest it conflict with EU standards. Other aspects of the matter, such as those concerning political responsibility, are examined in dedicated articles within this series.

2. The legal framework

   The regulatory framework comprises a stratification of legal sources:

   1. Directive 2013/32/EU (Procedures Directive) establishes in Article 37 the criteria for designating a country as safe, requiring that safety be general and constant.
   2. Legislative Decree no. 25/2008 regulates this designation in national law, linking it to the application of accelerated procedures.
   3. The Ministerial Decree of May 7, 2024 identified the list of safe countries via an administrative ministerial act, serving as the regulatory benchmark for the EU law compatibility assessment.
   4. The principle of primacy of EU law dictates that, in the event of a conflict, the EU rule prevails over the national measure, requiring the national court to immediately disapply the internal act without awaiting intervention by the Constitutional Court.

3. Case law guidance

   The decisive guidance was established by the Court of Justice of the European Union in a recent judgment, which clarified that a Member State cannot designate a country as safe if protection is not guaranteed across its entire territory or for its entire population. Following the appeal announced by the Ministry of the Interior before higher courts, a definitive ruling on legality is awaited; in the meantime, the national judge's assessment cannot remain limited to the formal inclusion in a list, but must extend to an effective examination of the conditions in the country. Where exceptions exist (for instance for minorities or dissidents), the country loses its safe designation ope legis for the purpose of accelerated procedures. Courts of merit have consistently reaffirmed the power and duty to disapply administrative acts whenever they impede the effective application of the protection criteria set out under EU law.

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8. Key takeaways for legal practitioners

   1. The hierarchy of legal sources has direct operational impact: EU law must be invoked to neutralize conflicting domestic primary legislation.
   2. The presumption of safety regarding a country of origin is rebuttable: counsel must challenge governmental lists by introducing international reports demonstrating territorial or personal risks.
   3. Disapplication of non-compliant domestic law is a mandatory duty of national courts, which defense counsel must actively seek in order to secure effective judicial protection.

9. Developments: the Catania Court's disapplication of the Safe Country Decree

   Between November 4 and 5, 2024, the immigration section of the Catania Court issued several orders refusing to validate the detention of migrants from Egypt and Bangladesh at the Pozzallo center. As reported by Ansa and Il Sole 24 Ore, the judges disapplied Decree Law 158/2024, through which the Government had elevated the list of safe countries to primary legislation. According to analyses by Altalex and Il Dubbio, the court reaffirmed the primacy of European Union law, aligning with the Court of Justice of the EU judgment of October 4, 2024. The ruling confirms that the legislative nature of the list does not preclude the judge's duty to verify, on a case-by-case basis, the actual safety of the country of origin in relation to EU directives.

References: Direttiva 2013/32/UED.Lgs. 25/2008D.M. 7 maggio 2024

Editorial oversight: Avv. Federico Papa·ICAMUpdated 7 November 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction