The Court of Rome, after recognizing the illegitimacy of the pushback of an underage Afghan citizen seeking asylum from the port of Brindisi to Greece, ordered the administrative authorities to allow the entry of the applicant into Italy, possibly by issuing a humanitarian visa, and to proceed with the registration of the international protection application.
Some aspects that emerge from the decision should be emphasized: first and foremost, the Court criticizes the practice of informal readmissions based on intergovernmental agreements (in this case between Italy and Greece, but they could also be with Slovenia or France) and their implementation, for which responsibility must still be attributed to the State. It is important to note that, as these bilateral agreements are not ratified by the Italian Parliament in accordance with Article 80 of the Italian Constitution, they cannot “introduce modifications or derogations to Italian laws or the existing European or international regulations in the Italian legal system. Therefore, the practice of informal readmissions carried out under such agreements violates several laws.” In fact, “the return to the border inevitably and profoundly affects the legal sphere and the freedom of the person involved, a restriction thet clearly occurred in this case, where the applicant was stopped, held inside a cabin of the ferry, transferred elsewhere, and handed over to the custody of agents from a foreign country, without the possibility of avoiding the procedure. It is of no relevance that the physical detention on the ferry was not carried out by border authorities (but by the ship’s personnel), as claimed by the Administration, because what happened there and, subsequently, what happened once returned to Greece (where the applicant claimed to have been held in a cell at the port of Igoumenitsa) is an evident consequence of the actions of the Italian border authorities, which brought to light some normative aspects of particular interest that played a decisive role in the decision-making process.” This, indeed, is contrary to Article 13 of the Constitution, laws on administrative procedures, and Articles 10, paragraph 2 bis, and 13, paragraph 5 bis, of Legislative Decree 286/1998. Furthermore, “the absence of an appealable decision ends up depriving the person subjected to readmission of their rights to defense and effective remeedy, in violation of Article 24 of the Italian Constitution, Article 13 of the European Convention on Human Rights, and Article 47 of the Charter of Fundamental Rights of the European Union.”
Moreover, even though aware of the terrible reception conditions for asylum seekers in Greece, the judge also states that “the responsibility for the related violations also arises in the hypothesis in which the member state is aware (or can reasonably be aware) that the real and current risk of actions violating the integrity and dignity of the person materializes not in the first country where the person is rejected (an intermediate stop) but in another subsequent definitive place,” thus highlighting the dangers of “chain pushbacks.”
The Court also highlights that the Italian State did not “verify the specific condition of the applicant (as can be inferred from the documentation produced by the claimant, where the failure to check in the Eurodac system and the lack of reference to other instruments are evident) and did not ascertain the consequences that he would have suffered as a result of readmission, noting that it carried out the readmission despite being aware (or at least being in a position to be aware) of the peculiar position of the applicant and also of the violations and systemic deficiencies to which he would have been exposed in Greece, facts that, also in light of the numerous sources referred to in the acts, can be considered notorious, at least to professionals in the sector.“
What makes this decision relevant is the fact that it concerns a readmission from a maritime border, highlighting what continues to happen at Adriatic ports – the readmissions of asylum seekers and unaccompanied minors – in continuity with the practices for which Italy has already been condemned in 2014 (Sharifi Judgment), as reported by ASGI and the Network of Adriatic Ports for years. The decision of the Court of Rome, as well as what emerged from a recent investigation by Lighthouse Reports, confirms the need to keep the supervision procedure on the implementation of the Sharifi judgment open.
Furthermore, the extensive spirit of collaboration among the organizations ASGI, No Name Kitchen, Lungo La Rotta Balcanica, and Equal Rights Beyond Borders has allowed achieving this important result.
ASGI considers it essential for Italian institutions to issue specific directives addressed to Public Administration bodies and Border Police to immediately cease the practices of informal readmissions at all Italian borders.