Italy - Court of Appeal of Bari, 5 March 2013, n. 299

Facts:

The applicant, a Gambian man, applied for asylum because of his sexual orientation, claiming a fear of persecution due to the prosecution and enforced disappearances of gay persons, together with the climate of homophobia reinforced by the declarations of the Gambian President. Notwithstanding the fact that the applicant’s sexual orientation was not put into question, both the Territorial Commission (Commissione Territoriale) and the Tribunal of Bari rejected the asylum claim on the basis that the persecution was not sufficiently established. In fact, according to both authorities, the applicant’s fear of persecution was only the result of a conflict within the applicant’s family, while the prosecution of same-sex acts – albeit existing in the law – was not actually enforced in Gambia. Furthermore, the documentary evidence brought by the applicant – a picture of him kissing another man, which was given to the Gambian police – was not deemed conclusive in order to provide evidence of the alleged persecution. The refusal was thus appealed before the Court of Appeal of Bari.

Decision & reasoning:

The Court of Appeal noted that that the fear of persecution was well-founded, both from a subjective and objective point of view. As for the former, the Court stated that it must be excluded that the applicant had come to Italy due to economic reasons, since he had a respectable and well-paid job. With regard to the latter, the Court affirmed that the applicant’s account was plausible and credible.

Furthermore, the Court of Appeal pointed out that persecution arises when laws criminalising same-sex relationships are in place, regardless of whether they are enforced or not. To this extent, the Court of Appeal referred to the Italian Court of Cassation’s case law (n. 15981 of 2012) and stressed that the simple fact that such laws are in place fosters a climate of homophobia and put people’s life and liberty at risk, since they could be enforced at any time. In addition, the Court observed that the political situation in Gambia, due to the harsh declarations of its President against same-sex conducts, contributed to exacerbate homophobia, thus creating a well-founded fear of persecution.

With regard to the evidentiary issues, the Court dismissed the Tribunal’s decision by taking into account the fact that the asylum seeker’s account was coherent and plausible. In the Court’s view, the applicant provided a logic and credible explanation regarding his fear of persecution and, in particular, he gave all the information available according to his best knowledge. Notably, the Court stated that, in consideration of Gambia’s negative attitude towards gay men, the picture he submitted and the consequent reprisal by the police had to be regarded as valid and genuine evidence.

In conclusion, the Court of Appeal rejected the Tribunal’s argument that the persecution was merely internal to the applicant’s family. On the contrary, it stated that the applicant had a well-founded fear of persecution due to his sexual orientation, since his life would have been at risk in Gambia, where he was not free to enjoy his right to freely express his sexual orientation. 

Outcome:

The Court of Appeal overturned the Tribunal’s decision and granted the applicant with refugee status.

Observations/comments:

This decision is particularly relevant because it reaffirms the principle stated by the Court of Cassation in 2012: the mere existence of laws criminalising same-sex conducts amount to persecution, regardless of whether they are enforced or not. The judgement takes into specific account the fact that hate speech against LGBTI individuals contributes to exacerbate the climate of homophobia already created by legislative measures, thus amounting to persecution. Furthermore, this judgement also illustrates that the Court of Appeal looks at both the subjective and objective element of the well-founded fear of persecution and carries out its analysis accordingly. 

This case summar was written by Denise Venturi, PhD Candidate in International Law at Scuola Superiore Sant'Anna (Italy) and KU Leuven (Belgium).