Italy – Court of Cassation, Civil Division VI, 5 March 2015, n. 4522

Country of Decision:
Country of Applicant:
Date of Decision:
05-03-2015
Citation:
R. G. no. 4522/2015
Court Name:
Court of Cassation, Civil Division VI
National / Other Legislative Provisions:
Italy - Legislative Decree No. 251/2007 - Art 3
Italy - Legislative Decree No. 251/2007 - Art 7
Italy - Legislative Decree No. 251/2007 - Art 8
Italy - Legislative Decree No. 251/2007 - Art 6
Italy - Legislative Decree No. 251/2007 - Art 14
Italy - Legislative Decree No. 25/2008 - Art 8
Italy - Legislative Decree No. 25/2008 - Art 11
Italy - Legislative Decree No. 25/2008 - Art 29
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Headnote: 

When assessing an asylum application, a judge shall consider as relevant both the applicant’s homosexuality as well as the fact that homosexuality is considered a crime in the country of origin of the applicant. Moreover, the judge shall base its reasoning not only on the assessment of credibility of the applicant, but also on the actual situation in the country of origin, which has to be verified through its own power of investigation.

Facts: 

The applicant, a Liberian citizen, made an application for international protection in front of the Commission of Caserta on the 29th of April 2011. His application was not based on the ground of sexual orientation, due to sentiments of shame. The application was rejected, which was followed by an appeal in front of the Court of First Instance of Napoli, where the applicant alleged his homosexuality and the fact that he could be subjected to criminal sanctions in his own country because of it. The Court rejected the appeal as did the Court of Appeal,  as they found that grounds for asylum brought to the attention of the judge after the first application cannot be accepted if they already existed before the initiation of the whole procedure.

Decision & Reasoning: 

The Court of Cassation’s reasoning is relevant for three different reasons. First of all, as far as new grounds for the application are concerned, the Court recalls art. 29 of D. Lgs. 25/2008 (which transposed the Asylum Procedures Directive 2005/85/CE), according to which when an applicant presents new elements, although already present at the moment of the first request, the subsequent application is to be considered admissible as far as the reasons for the later submission are plausible. In the present case, the Court considered that the psychological and moral factors leading the applicant to initially hide his homosexuality are sufficient reasons to make the application admissible.

Secondly, the Court analyses the issue of a well-founded fear of being persecuted because of the sexual orientation of the applicant. The Court refers to its previous case-law (Cass. Civ. N.15981/2012), according to which criminal sanctions against homosexuality prevent homosexual citizens from enjoying their individual freedom, therefore exposing them to a real risk of persecution that can justify the recognition of international protection.

Finally, the Court points out that the situation of persecution against homosexual citizens in the country of origin cannot be verified merely on the grounds of the interview of the applicant.  According to art. 8, co. 3, D. Lgs. 25/2008, the judge has a duty to actively instruct the case, by taking all the official steps necessary to collect updated information and documentation on the situation in the country of origin. 

Outcome: 

The Court declared the decision to be unlawful and the case was returned to the Court of Appeal for reconsideration and a decision on the substance of the case.

Observations/Comments: 

This case summary was written by Eleonora Celoria, member of the Human Rights and Migration Law Clinic and trainee lawyer in Turin (law firm Avv. Savio).

This case summary was proof-read by Margherita Mini, law student at the University of Turin and former member of the Human Rights and Migration Law Clinic.

Case Law Cited: 

Italy - Court of Cassation, Civil Division IV, 28 February 2013, n.5098

Italy - Court of Cassation, Civil Division IV, 10 May 2011, n. 10202

Italy - Court of Cassation, No. 27310/2008