Italy - Court of Cassation, 9 April 2015, No. 15279
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
|
Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
In case a further extension of the detention order inside an Identification and Expulsion Centre is requested by the Police Commissioner, the procedural right to be heard should be granted to the applicant. If the applicant raises an objection to the violation of his right to be heard, the requested authority shall inform of the grounds for refusing to acceede to the applicant’s argumentation. Otherwise the detention order is to be considered invalid.
Facts:
Whilst the applicant is being held in an Identification and Expulsion Centre, the Tribunal of Rome authorised an extension of the detention order for an additional thirty days.
During judicial proceedings, the applicant was not informed of the extension of the detention order by the Tribunal of Rome. Upon appeal before the Court of Cassation, Civil Division VI, Sub-Division I, the applicant argued that there had been a violation of the right to be heard since he was not given the chance to appear in-person at the hearing.
Moreover, no reasons for the denial of the arguments raised by the defense are given by the Tribunal of Rome in the final decision.
Decision & reasoning:
Within the meaning of art. 21, paragraph 2, and art. 28, paragraph 8, d.lgs. n. 25 of 2009, as well as art. 14, paragraph 6, d.lgs. 286 of 1998, the Court of Cassation considers that the procedural right to be heard has to be granted in judicial proceedings for the extension of the detention order in an Identification and Expulsion Centre.
Such procedural guarantees shall consist in the presence of a defence lawyer during the trial and in the right of the person concerned to be given a hearing, as provided for by art. 14 d.lgs. n. 286 of 1998, dealing with the validation process for the first part of the detention (Court of Cassation, No. 13117/11).
With regard to the objection raised by the defense lawyer at the hearing, it should have been upheld, or at least reasons for not acceeding to the applicant’s argumentation had to be given. However, the detention order issued by the Tribunal of Rome does not give any explanation for the above mentioned denial.
The appeal is granted by the Court of Cassation. In the light of art. 384 of the civil procedure code, the Tribunal of Rome consequently failed to fulfil its obligations, thereby creating grounds for annulment of the extension of the detention order in the Identification and Expulsion Center.
Outcome:
Appeal granted.
Observations/comments:
This case summary was written by Valentina Rossi, a Law student from the Human Rights and Migration Law Clinic (Iuc Torino).
This case summary was proof read by Vittoria Garosci, a Law student from the Human Rights and Migration Law Clinic (Iuc Torino).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Art. 21 |
| paragraph 2 |
| d.lgs. n. 25 of 2008 |
| Italy - Art. 28 |
| Italy - Art. 14 |
| paragraph 6 |
| d.lgs. n. 286 of 1998 |
| Italy - Art. 384 of the civil procedure code |
Other sources:
ICCPR (International Covenant on Civil and Political Rights), Art. 2, 9, 14