Immigration

Government's safe countries list, judge vets the migrant

The Supreme Court suspends the judgment pending the EU Court's ruling. The presumption of safety must be able to be revised for serious personal reasons

by Patrizia Maciocchi and Giovanni Negri

31 December 2024

3' min read

Key points

The 19 December decision
The Supreme Court's indications
The judge's evaluations

3' min read

It is certainly up to the Government to determine the list of safe countries, but the judge can and must intervene in the individual case, possibly assessing the choice of the Foreign Ministry as unreasonable or outdated, thus rejecting the validation of the detention of the migrant.

The decision of 19 December

On 30 December 2024, the Cassazione, with ordinance no. 34898, returned to pronounce on the subject of the procedure for the repatriation of migrants, this time called into question by the government's appeal against the first non-validations of detentions in Albania centres decided by the judges of the Rome court. Just a few days ago, on 19 December, the Court had already intervened on the issue, this time on a preliminary reference requested by the court in the capital. On that occasion, the Court had opened the way for the disapplication of the ministerial decree on safe countries when the presumption of safety contrasts with the different qualification criteria defined by the EU rules.

The order has an interlocutory nature and has suspended the judgement pending the ruling, expected on 25 February, of the European Court of Justice called upon by both Italian and German judges to settle essential and critical points in the application of the Community rules on the subject, in particular on the legitimacy of the coexistence between the definition of safe country and the presence of personal exclusions for certain risk categories.

The Supreme Court's indications

However, the Supreme Court, affirming its willingness to dialogue with other jurisdictions, proposes its interpretation. With two premises, the first is on the non-retroactivity of the recent placement of the list of safe countries no longer in a ministerial decree, but in a primary legislation (an aspect that, however, does not appear decisive from a substantive point of view), the second is on the reading of the EU Court's ruling of 4 October that has rekindled the controversy between the executive and the judiciary.

On this last point, the Court of Cassation notes that the European judges concluded for a judgement of insecurity for those countries where portions of the national territory are outside the control of the State; but "it does not seem possible to apply the decision of the Court of Justice automatically and extensively to countries designated as safe with exceptions of categories of persons". And it is precisely on this aspect that a new intervention by theEuropean judges is now expected.

In any case, 'personal exceptions, while compatible with the notion of a safe country of origin, cannot be admitted without limits'. In fact, the presence of exceptions in the face of widespread persecution fundamentally undermines the connotation of the state of origin as a state based on the rule of law, capable of ensuring strict respect for thefundamental rights of the individual and minorities.

All the more so in the light of the principle ofdignity, 'which was trampled underfoot by Nazi-fascism, and is a value that goes into Article 3 of the Italian Constitution, where it comes before equality'.

The judge's evaluations

Moreover, states the Court of Cassation, the presumption ofsecurity on the countries receiving repatriations does not prevent the judge from taking into consideration specific situations of persecution that due to their widespread and generalised nature are such as to make the country objectively unsafe. If non-governmental sources testify to a significantly different situation, the judge may consider unlawful the designation as safe of the country of origin because it is contrary to the European discipline.

For AndreaDelmastro delle Vedove, deputy of Fratelli d'Italia and undersecretary of Justice, the Cassation 'puts a tombstone on the Italian left's immigrationist hopes'. While for Antonio Nicita, vice-president of the PD Group in the Senate, the Court's verdict has been misrepresented: there is no doubt - for Nicita - about the government's prerogatives on the list of safe ports, but equally certain is the autonomous and independent role of the magistrate in assessing the individual case in relation to safe country status.