Italy – Court of Cassation rules that the new Italian asylum law cannot be applied retroactively

Date: 
Wednesday, January 23, 2019

On 23 January, the Italian Court of Cassation delivered its judgment in a case touching upon the applicability of the latest asylum decree (“the Salvini decree”) to ongoing administrative proceedings.

The case concerned the rejection of an applicant’s request for international protection by the Tribunal of Naples. On appeal, the applicant had argued that the Tribunal did not properly evaluate the factual and legal situation of the applicant and failed to act upon its investigative duties and powers. The Court of Cassation dismissed the applicant’s arguments but lingered over the last ground of appeal regarding the wrongful assessment of his need for humanitarian protection. In that context, the Court went on to analyse the possibility to retroactively apply the new legal provisions, which replaced the humanitarian residence permit with a “special cases” permit.

The Court followed a jurisprudential and doctrinal analysis of the principle of non-retroactivity. In this analysis, the Court reiterated, inter alia, the connection of the right to humanitarian protection with the constitutional right to asylum enshrined in Article 10 of the Italian Constitution. The Court explained that this connection underlines the substantive nature of the humanitarian protection status, which can only be considered in the context of constitutionally protected rights – a conclusion that in principle points to non-retroactivity.

On this line of reasoning, the Court further noted that the decision to grant humanitarian protection is of a declaratory nature. Similar to refugee and subsidiary protection statuses, the right to humanitarian protection is pre-existent to the assessment of the relevant conditions prescribed by law and its official recognition by the authorities. Any positive or negative result does depend on the probative framework but this cannot affect the legal nature of the subjective legal situation under assessment. This conclusion is further supported by recital no. 21 of Directive 2011/05/EU and the jurisprudence of the Court of Justice of the European Union.

The Court concluded that applications for international protection submitted before 5 October 2018 will have to be examined in accordance with the previous legislative framework. It then went on to assess the applicant’s need for humanitarian protection based on that finding and concluded that there was no error in the contested decision’s reasoning and findings.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Sofia Bonatti, Senior Legal Officer at ECRE, for helping us with the translation.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.  

                                                     

 

Keywords: 
Effective access to procedures
Effective remedy (right to)