Italy - Court of Cassation, 25 February 2013, No. RG 29043/2011

Facts:

The Applicant, a Nigerian citizen, had received a negative decision in response to his request for international protection and, as he had not appealed this decision, was about to be expelled. The Applicant had then appealed against the expulsion order.

The Justice of the Peace (the competent authority under Italian law in matters relating to checking the legitimacy of expulsion orders) then confirmed the expulsion order and the Applicant submitted an appeal to the Court of Cassation, citing the lack of grounds for the judgment and a violation of Article 19 of Consolidated Text No 286/1998.

In particular, the Applicant complained that the Justice of the Peace had made a mistake in considering that the ban on expulsion did not apply in this matter, since there would be a serious risk to his life if he were returned to his country of origin, which he had left following an escape from prison where he had been held following involvement in guerrilla warfare for religious reasons. The decision of the Justice of the Peace seemed to be without foundation, being restricted to a statement that the circumstances described had not been proven, and the Justice of the Peace had not taken any official steps to verify them.

Decision & reasoning:

According to the Court of Cassation, if the case of an applicant has already been reviewed by a Territorial Commission, any opposition to expulsion should be based on humanitarian grounds that are new or different from those that formed part of the proceedings relating to the request for international protection. However, the issue of novelty does not have to be treated in a strictly objective manner. The question of ‘novelty’ includes not just the facts presented chronologically as part of the decision, but also those that were not considered during the assessment by the Territorial Commission because they were not submitted by the Applicant or had not been established by official means by the deciding authority.

It follows that, when acting against expulsion on the basis of the order contained in Article 19(1) of Legislative Decree No 286 of 1998, the Justice of the Peace should establish, under the duty of investigation to which he is subject and which is equivalent to a judge in international protection matters, any circumstances that did not come to light before the Territorial Commission because the Applicant was unable to present or disclose them and the Commission was unable to establish them itself.

Outcome:

Declared the decision to be unlawful and sent it back to the Justice of the Peace for additional investigation and a decision on the merits of the case.