Italy - Court of Cassation, No. 7333, 2 December 2014
Keywords:
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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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." |
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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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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Obligation/Duty to cooperate
Description
Obligations imposed byMember States upon applicants for asylum to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application. These may include obligations to: (a) report to the competent authorities or to appear before them in person; (b) to hand over documents in their possession relevant to the examination of the application, such as their passports; (c) to inform the competent authorities of their current place address; (d) to be personally searched and the items he/she carries with him/her; (e) to have ones photograph taken; and (f) to have ones oral statements recorded provided. Alternatively the duty of the decision-maker to cooperate with the applicant in carrying out its assessment of facts and circumstances |
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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
Headnote:
The applicant’ s description of a situation which gives rise to a risk to his life or physical integrity, deriving from gender-based violence, social or religious group violence, family/domestic violence, which is accepted, tolerated or not tackled by the State, imposes an ex proprio motu further investigation upon the Judiciary. The latter entails an investigation into the control of violence described by the applicant in terms of whether it is widespread, whether there is impunity for the acts as well as the State’s response
Facts:
The Court of first instance recognised the applicant as having subsidiary protection. However, this was later over turned by the Bologna Court of Appeal on the ground that there was no link between the evidence the applicant had provided and the situation of armed conflict and indiscriminate violence in Nigeria.
In an appeal before the Court of Cassation the applicant submitted violations of articles 2,3,4,5,6 and 14 of the legislative decree 251/2007 as he assumes that there is no burden of proof for the applicant in submitting an application for international protection. Moreover, the Court of Appeal did not take into account the CJEU cases of Diakite and Elgafaji (C-172/2009 – C 285/2012) which established that the greater the level of internal indiscriminate violence the lower the need to prove the link between the individual and the risk of a serious threat.
Decision & reasoning:
Article 3 of the legislative decree 251/2007 states that the applicant has a duty to cooperate consisting in submitting all elements and documentation needed to substantiate the application for international protection. Paragraph 2 of the article enumerates the elements that have to be provided by the applicant. Paragraph 5 states some conditions that should be met in case certain aspects of the applicant’s statements are not supported by documentary or other evidence. Among the latter figure plausibility, coherence and general credibility of the applicant’s statement. The evaluation needs to be assessed alongside general information regarding the applicant’s country of origin. In case these are not provided by the applicant they should be assessed by an ex proprio motu investigation by the Judiciary.
Moreover, the Court of Cassation affirms that (i) the study of general information on the applicant’s country of origin is not requested if his statements are not intrinsically credible on the basis of the parameters of article 3; (ii) the assessment, instead, is optional for the judiciary if the applicant raises violence which is strictly interpersonal (iii) there is, however, an obligation to investigate in case there is a situation which gives rise to a risk to the applicant’s life or physical integrity, deriving from social or religious group violence which is accepted, tolerated or not tackled by the State.
In this case the applicant has sufficiently described the facts, giving as many circumstances as possible, but the Court of Appeal has not correctly applied the rule of ex proprio motu cooperation in the investigation of the case.
Outcome:
The judgment appealed was annulled and referred back to the Court of Appeal of Bologna.
Subsequent proceedings:
The obligation to cooperate in the investigation of the case that has been affirmed in the decision herein summarised, has been more recently reiterated by the same Court in the judgment n. 3347 (19/2/2015). It is worth noticing that in this latter judgmetn the Court has also remarked that the judge cannot only refer to the general situation of a country of origin, but has to investigate ex propio motu the personal and particular circumstances alleged by the applicant.
Observations/comments:
This case summary was written by Francesca Pastore, member of the human rights and migration law clinic, Italian lawyer.
This case summary was proof written by Valentina Rossi, member of the human rights and migration law clinic, Italian lawyer.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| CJEU - C-285/12, Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides |