Italy - Court of Cassation, 25 March 2015, No. 5926

Country of Decision:
Country of Applicant:
Date of Decision:
25-03-2015
Citation:
Court of Cassation, 25 March 2015, No. 5925/2015
Court Name:
Court of Cassation, Civil Division VI, Sub-Division I. (President Di Palma Salvatore)
National / Other Legislative Provisions:
Italy - D.lgs 25/2008 “Casi di trattenimento” (Legislative Decree 'Cases of Detention') - Art 21(2)
Italy - D.lgs 25/2008 “Casi di trattenimento” (Legislative Decree 'Cases of Detention') - Art 3(2)
Italy - D.lgs 25/2008 “Casi di trattenimento” (Legislative Decree 'Cases of Detention') - Art 6(1)
Italy - D.lgs 25/2008 “Casi di trattenimento” (Legislative Decree 'Cases of Detention') - Art 26(1)
Italy - d.P.R. n. 303 of 2004 - Art 2(1)
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Headnote: 

Where a foreign or stateless person is on the border and wants to apply for international protection, the competent authorities have the duty to give him information about how to access the procedure. The competent authorities also have the duty to ensure translation support in order to facilitate access to the procedure of asylum. If these duties are not fulfilled both the decree of removal and the decree of detention are void.

Facts: 

The appellant was rescued at sea and irregularly disembarked onto Italian territory. He did not have any  identification documents, therefore the Siracusa Police Commissioner issued two decrees: a decree of removal and a decree of detention in a Roman identification and expulsion centre.

At a later stage, the Roman Justice of the Peace validated only the  decree of detention and did not analyze the decree of removal.

The applicant appeals the validity of the decree of removal because the appellant has not been promptly informed about the possibility to access international protection. If the decree of removal is unlawful, as a consequence, the decree of detention is also unlawful. 

Decision & Reasoning: 

Art. 8 of the directive 2013/32/UE of June 26 2013 states the obligation to inform third country nationals who arrive on the territory of a State of the European Union on the procedures that must be followed to obtain the recognition of international protection.

The obligation to provide information on the asylum procedures is also enacted by the jurisprudence of the European Court of Human Rights in the judgment of 27765/09 - Hirsi Jamaa et al. v. Italy.

The judgment of the European Court of Human Rights M.S.S. v. Belgium and Greece 30696/09 underlines how the lack of access to information concerning the procedure to be followed is clearly a major obstacle in accessing those procedures.

Asylum Procedure Directive 2013/32/EU  codifies  the duty of information about effective access to procedures to be followed at the border. This Directive, in relation to the date of the alleged facts, was not transposed into Italian legislation.

Nevertheless the Italian Court of Cassation believes that such a duty should have been recognized applying an interpretation which is consistent with European law and with the law of the European Court of Human Rights.

Furthermore Articles. 3, paragraph 2, 6, paragraph 1 and 26, paragraph 1, d.lgs. n. 25 of 2008 and article 2, paragraph 1, d.P.R. n. 303 of 2004, refer to the international protection’s application made by a stateless person or a third country national at the border.

The Justice of the Peace did not verify the validity of the decree of detention. If it had checked the validity of the decree of detention it would have realised it was clearly unlawful because of the lack of access to information concerning the procedures to be followed to get international protection.

Outcome: 

Appeal granted. 

Observations/Comments: 

This case summary was written by Sara Lauria, a LPC student at BPP University. 

The case summary was proof read by  Fiorella Volonnino, a student at BPP University.