Italy - Appeal Court of Naples, 20 March 2013, No. RG 1441/2012
Keywords:
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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. |
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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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More favourable provisions
Description
Many of the instruments of the EU asylum acquis currently set out only minimum standards. “It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions”. According to Article 5 of the Asylum Procedures Directive: “Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing refugee status, insofar as those standards are compatible with this Directive.” Similarly, according to Article 4 of the Reception Conditions Directive: “Member States may introduce or retain more favourable provisions in the field of reception conditions for asylum seekers and other close relatives of the applicant who are present in the same Member State when they are dependent on him or for humanitarian reasons insofar as these provisions are compatible with this Directive.” |
Headnote:
The legal proceedings relating to an appeal regarding the granting of international protection are a summary process that give the judge certain official powers. As a consequence, the judge should decide on the merits of an appeal even if the Applicant fails to attend the hearing.
Facts:
The Applicant, a Nigerian citizen, appealed against a rejection of a request for international protection handed down by the Territorial Commission in Caserta. The Applicant did not attend the first hearing before the Naples Court and for this reason the case was struck off the roll and was declared null and void.
Decision & reasoning:
The Appeal Court in Naples held that the decision to strike the case from the roll was unlawful for the following reason: an appeal proceeding against a decision to refuse international protection is characterised by a high level of official responsibility and imposes an obligation on the judge to decide on the merits of the case even if the Applicant fails to appear before the Court.
Outcome:
The decision to strike the case from the roll was declared unlawful and the case was sent for reconsideration on the merits.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 25 of 28 January 2008 |