Italy - Court of Cassation, 8 September 2011, No. 18493/2011
Keywords:
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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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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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. |
Headnote:
Article 10 of Legislative Decree 25/2008 sets out guarantees for asylum seekers as regards procedural access according to which the asylum seeker should be informed not only of his rights and obligations during the procedure but also on the means and times available to him for his asylum application. In addition, section 4 provides for timely information to be given to the Applicant concerning the decision taken by the Territorial Commission. This should be provided in the first language indicated by the Applicant or in one of the four official languages.
This provision has to be respected for the procedure to be valid.
Facts:
The asylum seeker submitted an appeal to the Court in Trieste against a decision of the Territorial Commission rejecting his asylum application but failed to comply with the thirty-day deadline for appeals because he had not understood the Italian text in the decision. Both the Court and the Appeals Court in Trieste had ruled that the appeal was inadmissible because it was submitted too late and that there was no justification for submitting the appeal with a delay of over ten months. An appeal against this decision was submitted to the Supreme Court of Cassation.
Decision & reasoning:
The Court of Cassation upheld the appeal primarily because there had been no translation of the decision of the Territorial Commission into a language that the Applicant understood, or even into a global language once it had been established that there was no translator. Indeed, the Court held that communication of the rejection had taken place in violation of the regulations according to which all communications from the Commission should be either in the language indicated by the foreign applicant or in the chosen language out of the four principal languages (English, French, Arabic or Spanish). According to the Court, compliance with this regulation is mandatory and violation of it results in the procedure being null and void. Indeed, the provisions constitute a guarantee for an applicant to be able to mount a defence and this cannot be impaired in any way. In addition, the Court noted that the judgment concerning the merits of the case had been focused on the delay in the submission of the appeal and on a general assumption that the decision rejecting the application had been understood, whereas comprehension of the appeal options and deadlines had clearly been limited.
Outcome:
Appeal upheld and the contested judgment was overturned.
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 25 of 28 January 2008 |
Cited Cases:
| Cited Cases |
| Italy - Court of Cassation, No. 17908/2010 |