Italy – Court of Cassation, Civil Division VI, 5 March 2015, n. 4522
Keywords:
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article” |
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Final decision
Description
A decision on whether the third-country national or stateless person be granted refugee status by virtue of the Qualification Directive and which is no longer subject to a remedy within the framework of the Asylum Procedures Directive Chapter V (concerning appeals procedures and the right to an effective remedy) irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome (subject to Annex III which is particular to Spain). |
Headnote:
When assessing an asylum application, a judge shall consider as relevant both the applicant’s homosexuality as well as the fact that homosexuality is considered a crime in the country of origin of the applicant. Moreover, the judge shall base its reasoning not only on the assessment of credibility of the applicant, but also on the actual situation in the country of origin, which has to be verified through its own power of investigation.
Facts:
The applicant, a Liberian citizen, made an application for international protection in front of the Commission of Caserta on the 29th of April 2011. His application was not based on the ground of sexual orientation, due to sentiments of shame. The application was rejected, which was followed by an appeal in front of the Court of First Instance of Napoli, where the applicant alleged his homosexuality and the fact that he could be subjected to criminal sanctions in his own country because of it. The Court rejected the appeal as did the Court of Appeal, as they found that grounds for asylum brought to the attention of the judge after the first application cannot be accepted if they already existed before the initiation of the whole procedure.
Decision & reasoning:
The Court of Cassation’s reasoning is relevant for three different reasons. First of all, as far as new grounds for the application are concerned, the Court recalls art. 29 of D. Lgs. 25/2008 (which transposed the Asylum Procedures Directive 2005/85/CE), according to which when an applicant presents new elements, although already present at the moment of the first request, the subsequent application is to be considered admissible as far as the reasons for the later submission are plausible. In the present case, the Court considered that the psychological and moral factors leading the applicant to initially hide his homosexuality are sufficient reasons to make the application admissible.
Secondly, the Court analyses the issue of a well-founded fear of being persecuted because of the sexual orientation of the applicant. The Court refers to its previous case-law (Cass. Civ. N.15981/2012), according to which criminal sanctions against homosexuality prevent homosexual citizens from enjoying their individual freedom, therefore exposing them to a real risk of persecution that can justify the recognition of international protection.
Finally, the Court points out that the situation of persecution against homosexual citizens in the country of origin cannot be verified merely on the grounds of the interview of the applicant. According to art. 8, co. 3, D. Lgs. 25/2008, the judge has a duty to actively instruct the case, by taking all the official steps necessary to collect updated information and documentation on the situation in the country of origin.
Outcome:
The Court declared the decision to be unlawful and the case was returned to the Court of Appeal for reconsideration and a decision on the substance of the case.
Observations/comments:
This case summary was written by Eleonora Celoria, member of the Human Rights and Migration Law Clinic and trainee lawyer in Turin (law firm Avv. Savio).
This case summary was proof-read by Margherita Mini, law student at the University of Turin and former member of the Human Rights and Migration Law Clinic.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Italy - Court of Cassation, 20 September 2012, No. 15981/2012 |