Italy - Court of Cassation, 21 October 2008, RG 2540/2006
Keywords:
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
Headnote:
A major shift is currently taking place in the rules on burden of proof as regards the granting of international protection. It is up to the Commission and the courts to cooperate in checking the conditions that enable protection to be granted and they should obtain information concerning the country of origin by official means.
Facts:
The applicant, an Iraqi citizen who is a Kurdish Shiite, submitted a request for asylum but the application was refused. After appealing this decision he was granted refugee status. The Ministry of the Interior then appealed this decision.
The Court of Appeal upheld the appeal, arguing that the applicant had not provided any evidence to prove that he belonged to the Kurdish minority (despite the fact that the applicant spoke Kurdish) and that the fact of persecution of Kurds and Shiites by the Iraqi authorities was not in itself sufficient to prove in this particular case that the applicant ran the risk of persecution on the grounds of his ethnicity or religion.
An appeal against the decision of the Court of Appeal was then submitted to the Court of Cassation, arguing that the Court of Appeal had made an error in its interpretation and application of legislation relating to refugee status with regard to the burden of proof and in particular: it had not taken responsibility for investigating and evaluating the facts of the case; it had not used all the means at its disposal to gather evidence to support the request; it had not given the benefit of the doubt; it had not provided valid arguments to counter the statements made by the applicant.
Decision & reasoning:
According to the Court of Cassation, international and national legislation relating to the burden of proof in cases concerning the granting of refugee status requires the Commission and the judiciary to take an active role. It is the responsibility of such bodies to cooperate in checking whether the conditions are in place to grant protection and to obtain by official means the information that is required with regard to the country of origin.
In this context the ‘diligence’ and ‘good faith’ required from the applicant become elements of the evidentiary framework.
Outcome:
The contested judgment was quashed and the case was referred for review to the same Court of Appeal, but with different judges.
Relevant International and European Legislation:
Cited National Legislation:
Follower Cases:
| Follower Cases |
| Italy - Court of Bologna, 19 March 2013, No. RG 17735/2012 |