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: Decree Law No. 158/2024

   On October 23, 2024, Decree Law No. 158/2024 came into force, aimed at reinforcing the safe countries list following the non-validation of detentions in Albania. As reported by Corriere della Sera and Il Sole 24 Ore, the measure elevates the list to a primary source of law, narrowing it to 19 nations by excluding Nigeria, Cameroon, and Colombia. According to Guida al Diritto, this hierarchical change is intended to restrict the direct disapplication of the list by ordinary judges. However, European case law maintains primacy: should courts find conflicts with the Procedures Directive, they could still trigger preliminary rulings from the CJEU or raise questions of constitutional legitimacy.

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

Editorial oversight: Avv. Federico Papa·ICAMUpdated 23 October 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