Italy - Court of Cassation, No. 7333, 2 December 2014

Country of Decision:
Country of Applicant:
Date of Decision:
02-12-2014
Citation:
No. 7333/2015
Court Name:
Court of Cassation, Civil Division VI, Sub-Division I (President Di Palma Salvatore)
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 2
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 8 > Art 8.2
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 29 > Art 29.3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 30 > Art 30.4
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 30 > Art 30.5
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 38 > Art 38.1
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 38 > Art 38.1 (c)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.1
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 8 > Art 8.1
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 8 > Art 8.2
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 4
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 8
National / Other Legislative Provisions:
Italy - Legislative Decree No. 251/2007 - Art 4
Italy - Legislative Decree No. 251/2007 - Art 5
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 - Civil Procedural Code - Art. 360.5
Italy - Legislative Decree No. 251/2007 - Art 2
Italy - Legislative Decree No. 251/2007 - Art 3
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Headnote: 

The applicant’ s description of a situation which gives rise to a risk to his life or physical integrity, deriving from gender-based violence, social or religious group violence, family/domestic violence, which is accepted, tolerated or not tackled by the State, imposes an ex proprio motu further investigation upon the Judiciary. The latter entails an investigation into the control of  violence described by the applicant in terms of whether it is widespread, whether there is impunity for the acts as well as the State’s response

Facts: 

The Court of first instance recognised the applicant as having subsidiary protection. However, this was later over turned by the Bologna Court of Appeal on the ground that there was no link between the evidence the applicant had provided and the situation of armed conflict and indiscriminate violence in Nigeria.

In an appeal before the Court of Cassation the applicant submitted violations of articles 2,3,4,5,6 and 14 of the legislative decree 251/2007 as he assumes that there is no burden of proof for the applicant in submitting an application for international protection. Moreover, the Court of Appeal did not take into account the CJEU cases of Diakite and Elgafaji (C-172/2009 – C 285/2012) which established that the greater the level of internal indiscriminate violence the lower the need to prove the link between the individual and the risk of a serious threat.

Decision & Reasoning: 

Article 3 of the legislative decree 251/2007 states that the applicant has a duty to cooperate consisting in submitting all elements and documentation needed to substantiate the application for international protection. Paragraph 2 of the article enumerates the elements that have to be provided by the applicant. Paragraph 5 states some conditions that should be met in case certain aspects of the applicant’s statements are not supported by documentary or other evidence. Among the latter figure plausibility, coherence and general credibility of the applicant’s statement. The evaluation needs to be assessed alongside general information regarding the applicant’s country of origin. In case these are not provided by the applicant they should be assessed by an ex proprio motu investigation by the Judiciary.

Moreover, the Court of Cassation  affirms that (i) the study of general information on the applicant’s country of origin is not requested if his statements are not intrinsically credible on the basis of the parameters of article 3; (ii) the assessment, instead, is optional for the judiciary if the applicant raises violence which is strictly interpersonal (iii) there is, however, an obligation to investigate in case there is a situation which gives rise to a risk to the applicant’s life or physical integrity, deriving from social or religious group violence which is accepted, tolerated or not tackled by the State.

In this case the applicant has sufficiently described the facts, giving as many circumstances as possible, but the Court of Appeal has not correctly applied the rule of ex proprio motu cooperation in the investigation of the case.

Outcome: 

The judgment appealed was annulled and referred back to the Court of Appeal of Bologna.

Subsequent Proceedings : 

The obligation to cooperate in the investigation of the case that has been affirmed in the decision herein summarised, has been more recently reiterated by the same Court in the judgment n. 3347 (19/2/2015). It is worth noticing that in this latter judgmetn the Court has also remarked that the judge cannot only refer to the general situation of a country of origin, but has to investigate ex propio motu the personal and particular circumstances alleged by the applicant. 

Observations/Comments: 

This case summary was written by Francesca Pastore, member of the human rights and migration law clinic, Italian lawyer.

This case summary was proof written by Valentina Rossi, member of the human rights and migration law clinic, Italian lawyer.

Case Law Cited: 

Italy - Court of Cassation, no. 15466/20147 July 2014,

Italy - Court of Cassation, 24 September 2012, no. 16202/2012

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

Italy - Court of Cassation, No. 22111/2014