Italy - Catania Court, 28 January 2010, No. RG 6176/2009
| Country of Decision: | Italy |
| Country of applicant: | Ivory Coast |
| Court name: | Tribunale Ordinario di Catania, Prima sezione civile |
| Date of decision: | 28-01-2010 |
| Citation: | No. R.G. 6176/2009 |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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More favourable provisions
Description
Many of the instruments of the EU asylum acquis currently set out only minimum standards. “It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions”. According to Article 5 of the Asylum Procedures Directive: “Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing refugee status, insofar as those standards are compatible with this Directive.” Similarly, according to Article 4 of the Reception Conditions Directive: “Member States may introduce or retain more favourable provisions in the field of reception conditions for asylum seekers and other close relatives of the applicant who are present in the same Member State when they are dependent on him or for humanitarian reasons insofar as these provisions are compatible with this Directive.” |
Headnote:
For the purposes of access to legal cover for persons applying for international protection, documents issued by the Italian police certifying a person’s identity (residence permit) should be considered as being valid and wholly sufficient to identify the foreigner and, in consequence, to provide legal aid at the State’s expense, regardless of the precise particulars in the country of origin.
Facts:
The Council of the Bar Association in Catania, which is the competent authority as regards granting state-funded legal aid, rejected an application for such assistance on the basis of an ‘absence of appropriate documentation certifying the identity of the Applicant’, notwithstanding the fact that the case file included a residence permit as an asylum seeker. This decision was contested.
Decision & reasoning:
The Court did not agree with the contested decision and granted state-funded legal aid to the Applicant because the case involved a citizen of the Ivory Coast who was applying for international protection and, for that reason, it was quite legitimate that he did not have documentation provided by the consular authorities of the country of origin.
In the Court’s view, a person applying for international protection should be granted legal aid even in the absence of documentation issued by the consular authorities in the country of origin, since a reading of the relevant regulations that takes into account the provisions of the Constitution imposes a duty to do so in order to avoid an unlawful violation of the right of access to legal protection.
Outcome:
A decree was issued granting state-funded legal aid.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 25 of 28 January 2008 |
| Italy - Constitution - Art 24 |
| Italy - Presidential Decree 115/2002 |