Italy – Supreme Court of Cassation, 27th June 2018, no. 28424
Country of Decision:
Country of Applicant:
Date of Decision:
27-06-2018
Citation:
Sall Mor (alias Morcal Cal) v. Ministry of the Interior – Territorial Commission of Salerno [2018] Cass. no. 28424
Court Name:
Supreme Court of Cassation, First Civil Section
Keywords:
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
European Union Law > EN - Charter of Fundamental Rights of the European Union
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 6
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 47
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 46
Council of Europe Instruments
European Union Law > EN - Charter of Fundamental Rights of the European Union
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 6
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 47
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 46
National / Other Legislative Provisions:
Legislative Decree 25/2008;
Legislative Decree 251/2007;
Legislative Decree 13/2017
Legislative Decree 251/2007;
Legislative Decree 13/2017
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Headnote:
In the lack of audiovisual recording of the interview, the Judge must set the appearance hearing, otherwise being the decree issued null and void for the breach of the adversarial principle.
Facts:
The Tribunal of Naples dismissed the applicant’s request for the recognition of refugee status or, in the alternative, of subsidiary or humanitarian protection. Hence, the applicant lodged an appeal before the Supreme Court of Cassation. He complained that the Tribunal did not set the appearance hearing, although it is prescribed under the law when audiovisual recording is not available. In particular, the decision exclusively relied on the applicant’s statements as contained in the report of the personal interview by the Territorial Commission.
Decision & Reasoning:
The Court of Cassation annulled the Tribunal’s decision for the breach of the Decree 25/2008. Under article 14 of the Decree 25/2008 the personal interview must be reported or recorded. Article 35 bis Decree 25/2008 clearly establishes cases in which the judge must set the appearance hearing, thus excluding any dissimilar interpretation.
According to the adversarial principle, the audiovisual recording of the personal interview or the report allow to better assess the applicant’s statements, taking into account also the factual circumstances which cannot be reported (e.g. the applicant’s demeanor).
The Court of Cassation upheld the appeal and referred to the Tribunal in order to rule on the international protection claim, after setting an appearance hearing, under penalty of nullity of the decision.
Outcome:
Appeal upheld.
Observations/Comments:
This case summary was written by Alessandra Alosi and Stefano Scalora, members of the Legal Clinic of Università degli studi di Catania.
Case Law Cited:
Italy - Supreme Court of Cassation, 5 July 2018, Decision no. 17717.
