Italy – Supreme Court of Cassation, 27th June 2018, no. 28424
Keywords:
| Keywords |
|
Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
|
Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
|
Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
|
Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
|
Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
In the lack of audiovisual recording of the interview, the Judge must set the appearance hearing, otherwise being the decree issued null and void for the breach of the adversarial principle.
Facts:
The Tribunal of Naples dismissed the applicant’s request for the recognition of refugee status or, in the alternative, of subsidiary or humanitarian protection. Hence, the applicant lodged an appeal before the Supreme Court of Cassation. He complained that the Tribunal did not set the appearance hearing, although it is prescribed under the law when audiovisual recording is not available. In particular, the decision exclusively relied on the applicant’s statements as contained in the report of the personal interview by the Territorial Commission.
Decision & reasoning:
The Court of Cassation annulled the Tribunal’s decision for the breach of the Decree 25/2008. Under article 14 of the Decree 25/2008 the personal interview must be reported or recorded. Article 35 bis Decree 25/2008 clearly establishes cases in which the judge must set the appearance hearing, thus excluding any dissimilar interpretation.
According to the adversarial principle, the audiovisual recording of the personal interview or the report allow to better assess the applicant’s statements, taking into account also the factual circumstances which cannot be reported (e.g. the applicant’s demeanor).
The Court of Cassation upheld the appeal and referred to the Tribunal in order to rule on the international protection claim, after setting an appearance hearing, under penalty of nullity of the decision.
Outcome:
Appeal upheld.
Observations/comments:
This case summary was written by Alessandra Alosi and Stefano Scalora, members of the Legal Clinic of Università degli studi di Catania.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Legislative Decree 25/2008; |
| Legislative Decree 251/2007; |
| Legislative Decree 13/2017 |
Cited Cases:
| Cited Cases |
| Italy - Supreme Court of Cassation, 5 July 2018, Decision no. 17717. |