Italy: Court of Cassation reiterates the need for a shared burden of proof in the case of an applicant fleeing persecution due to his sexual orientation

Tuesday, November 14, 2017

On 14 November 2017, the Italian Civil Court of Cassation published judgment no. 26921/2017, which concerned a gay man from Nigeria, whose appeal against the negative decision of the Territorial Commission on his asylum claim had been rejected by the Court of Appeal of Ancona. The applicant, who claimed that his dire economic situation had compelled him to prostitute himself, fled his country of origin after receiving threats by the family members of one of his clients, who also set his house on fire.

The Court of Appeal had dismissed the asylum seeker's appeal due to a lack of credibility and because of contradictions in his account. The applicant appealed against this decision, observing that the Court did not apply a shared burden of proof and did not consider his personal situation or pertinent country of origin information.

The Court of Cassation quashed this decision on four points. First, it stressed the need for the judge to carry out an assessment of the asylum claim, notably of the applicant's credibility, on the basis of sound and objective criteria established by law. Secondly, it found that the asylum seeker's individual situation and personal circumstances, in particular age and social condition, must be taken into due account, together with adequate information on the country of origin, against which the risk of persecution must be assessed. The Court noted that mere contradictions on secondary and less important aspects of the claim cannot, alone, be used as adverse credibility findings. Thirdly, the Court of Cassation stated that, when the applicant narrated his personal account, he was in a troubled mental state, which was overlooked by the Court of Appeal. Moreover, the Court had not paid sufficient attention to the fact that same-sex acts are criminalised in Nigeria and, consequently, gay men are at risk and may be in need of international protection.

Finally, the Court of Cassation, recalling its well-established jurisprudence on the matter, reiterated the need for the asylum authority and the judge to play an active role in acquiring all the necessary elements of an asylum claim, including information on the country of origin, thus sharing the burden of proof with the applicant.

Based on an unofficial translation by the ELENA Weekly Legal Update. The EWLU would like to thank Denise Venturi for her kind assistance with summarising this case.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.



Burden of proof
Sexual orientation