Italy - Court of Cassation, 20 September 2012, No. 15981/2012
Keywords:
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
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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” |
Headnote:
Criminal sanctions against homosexual acts under Article 319 of the Criminal Code of Senegal constitute a deprivation of the fundamental right to live one’s own sexual and emotional life in freedom and are sufficient in themselves to justify granting refugee status.
Facts:
The Applicant, a Senegalese citizen, had stated that he was homosexual and could not live freely as such in his country of origin, which treats homosexuality as a crime, and additionally because of hostility within his family and social context. His request was refused. Similarly, his appeals to the Trieste Court and the Appeal Court were also rejected. The Appeal Court held that circumstances where the judicial system treats homosexuality as a crime are irrelevant as regards granting protection because the general situation in a country cannot automatically apply to an individual case. According to this Court, it is necessary to prove not just the homosexuality of the Applicant but also that the same had been subject to specific acts of violence and threats organised by the Senegalese authorities that forced him to leave his country.
Decision & reasoning:
According to the Court of Cassation, the contested decision was incorrect and therefore should be amended, given that the conditions for granting refugee status had been fulfilled. The Court of Cassation found that the failure to take the necessary official steps to obtain sufficient information about the legal and social situation in the Applicant’s country of origin was unlawful, as it violated the guidance set by legislation. In addition, the Court held that it was patently illogical that the contested decision ruled that it was not possible to infer an individual case of persecution from the overall situation in the country of origin, since criminal sanctions against homosexuality inevitably prevent all homosexual citizens from living their own lives in freedom which is a violation of a fundamental right.
Outcome:
The decision was declared unlawful and returned to the Court of Appeal for reconsideration and a decision on the substance of the case.
Relevant International and European Legislation:
Follower Cases:
| Follower Cases |
| Italy – Court of Cassation, Civil Division VI, 5 March 2015, n. 4522 |
| Italy - Tribunal of Genova, 13 May 2016, no. 15023/15 |
| Italy - Court of Appeal of Bari, 5 March 2013, n. 299 |