The "Constitutionalist" overthrows the opposition / Justifies the acceptance of the agreement for immigrants

2024-01-29 17:39:00, Aktualitet CNA

The "Constitutionalist" overthrows the opposition / Justifies the

Today, the Constitutional Courts examined the request of the opposition deputies regarding the agreement with Italy for immigrants from third countries.

The "Constitutionalist" rejected the opposition's request and accepted the agreement for immigrants.

In its reasoning according to the Court, the Protocol on Migration does not set territorial borders nor does it change the territorial integrity of the Republic of Albania, so it does not constitute an agreement that has to do with the territory in the physical aspect.

Secondly, the Court says that it has established that the international law binding on the Republic of Albania, which is related to the issues of migration and asylum, is also applicable by the Italian authorities due to the ratification of international agreements by the Republic of Italy.

Reasoning of the Constitutional Court

The Constitutional Court of the Republic of Albania considered in the plenary sessions on the basis of the documents, on the dates 18.01.2024, 24.01.2024 and 29.01.2024, the request presented by 30 deputies of the Assembly of the Republic of Albania, with object.

"The declaration incompatible with the Constitution of the Protocol between the Government of the Italian Republic and the Council of Ministers of the Republic of Albania "On Strengthening Cooperation in the Field of Migration" and the prohibition of its ratification by the Assembly. Suspension of the procedures for the ratification of the Protocol between the Government of the Italian Republic and the Council of Ministers of the Republic of Albania "For Strengthening Cooperation in the Field of Migration".

The Constitutional Court convened today on 29.01.2024, at the end of the examination of this case, assessed that:

Regarding compliance with the procedure of negotiation and signing of the Protocol on Migration, in the direction of the constitutional body that authorized the issuance of the power of attorney, the Court verified the nature and content of the Protocol on Migration, which was negotiated and signed as an intergovernmental agreement, ratifiable in Assembly according to Article 121, point 2, of the Constitution.

More specifically, the Constitutional Court, taking into consideration its jurisprudence, verified whether the Migration Protocol constituted an international agreement related to the territory and human rights and freedoms, according to letters "a" and "b" of point 1 of article 121 of the Constitution .

The Constitutional Court analyzed the concept of "international agreement concerning the territory" in two aspects:

(i) physical aspect; AND

(ii) the jurisdictional aspect related to sovereignty.

First, she assessed that the Protocol on Migration does not set territorial borders nor does it change the territorial integrity of the Republic of Albania, so it does not constitute an agreement that has to do with the territory in the physical aspect.

Secondly, the Constitutional Court assessed that in the two areas where the Migration Protocol operates, Albanian law is applied, in addition to Italian law. She concluded that the international law binding on the Republic of Albania, which is related to migration and asylum issues, is also applicable by the Italian authorities due to the ratification of international agreements by the Republic of Italy.

Under this analysis, the Court did not question the existence of the responsibility of the Albanian state for the issues regulated by the Protocol on Migration, which originates not only from constitutional norms, but also from international law that regulates the responsibility of states in the context of its extraterritorial implementation . In this view, the Constitutional Court concluded that a dual jurisdiction operates for human rights and freedoms, which means that the Italian jurisdiction in the two areas in question does not exclude the Albanian jurisdiction.

Also, the Constitutional Court came to the other conclusion that the Migration Protocol is not included in the category of international agreements provided for in letter b) of point 1 of Article 121 of the Constitution because, in essence, it does not create new constitutional rights and freedoms, nor does not bring additional restrictions on existing human rights and freedoms, beyond those provided by the Albanian legal order.

Bearing in mind that on the one hand the constitutional issue under consideration constitutes an innovation in Albanian jurisprudence, in particular for the concept of international agreement in terms of the jurisdictional aspect related to sovereignty, and on the other hand the Protocol on Migration does not state in any of its provisions that the Government Albania is stripped of exercising jurisdiction over Albanian territory, the Court analyzed whether the Albanian Government had the appropriate powers for the negotiation and signing of the Protocol in question. In this regard, the Court assessed that the Treaty of Friendship and Cooperation between the Republic of Albania and the Republic of Italy of 1995 constitutes an international framework agreement that according to Article 180 of the Constitution is considered ratified according to the Constitution and constitutes a sufficient basis for the Protocol on the Migration of was negotiated with the authorization of the Prime Minister and powers of attorney issued by the Minister of Foreign Affairs, as well as to be signed by the Prime Minister himself.

For these reasons, the Constitutional Court of the Republic of Albania, in support of articles 131, point 1, letter "b" and 134, point 1, letter "c", of the Constitution, as well as articles 52 and 52/a, letter "a ", of law no. 8577, dated 10.02.2000 "On the organization and functioning of the Constitutional Court of the Republic of Albania", amended, by majority vote,

DECIDE:

Declaration of the protocol between the Council of Ministers of the Republic of Albania and the Government of the Italian Republic, "On strengthening cooperation in the field of migration", in accordance with the Constitution and allowing its ratification by the Assembly.

The final decision will be announced as reasoned within the legal deadlines provided by law no. 8577, dated 10.02.2000 "On the organization and functioning of the Constitutional Court of the Republic of Albania", as amended by the Regulation on the judicial procedures of the Constitutional Court.

Based on Article 52/a, point 2 of the organic law, the final decision is notified to the President, the Assembly and the Council of Ministers and is sent for publication in the Official Gazette. The final decision enters into force upon its publication in the Official Gazette and upon its entry into force, the suspension measure automatically lapses.