Case summary

Deciding Body
Catanzaro Tribunal (ordinary civil judge)
Tribunale di Catanzaro
Italy
National case details
Date of decision: 07.12.15
Instance: 1st Instance
Case status: Final
Area of law
Migration and asylum


Asylum

Identification of the case

National law sources
  • art. 3.1 and 3.5 legislative decree 27172007
EU law sources
  • Art. 4. directive 2011/95/UE

Summary of the case

Facts of the case
The claimant, a citizen of Ghana, fled the country for fear to be killed because of his homosexuality. His father – an imam – had discovered him having a sexual relation with his cousin and, given his position within the religious community, he had never accepted his son’s homosexuality. The Italian administrative authorities had refused to grant the claimant the refugee status for lack of credibility and sufficient evidence. In reversing the administrative decision, the judge applied Article 4(5)(a) to (e) of the Recast QD and asserted the credibility of the asylum seeker application in so far as the recurrent had met the conditions listed in this provision. Although the claimant did not allege any evidence in relation to his homosexuality, his availability to get in contact with LGBT associations and the subsequent allegation of a statement of a LGBT association declaring the involvement of the applicant in the association’s activities were decisive elements in the judge’s decision.
Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied
The judge granted refugee status as the claimant belongs to a special social group deserving international protection (i.e. homosexual)
Reasoning (legal principles applied)
The Tribunal of Catanzaro approached the case by first setting the applicable standards and the burden of proof to be followed in regard to the credibility assessment of the claim of persecution on grounds of sexual orientation. The applicable standards were set to be those developed by the Italian Court of Cassation, in pursuance of the EU principle of the duty of cooperation. Notably, in asylum cases, the standards of proof are not those generally applicable in civil proceedings, although the hearing judge is a civil one, but the more lenient standard, where benefit of the doubt is also recognised to the applicant. In addition, another specificity is the role of the national judges in evidentiary assessment, which, unlike the civil proceedings, the judge has a positive duty to collaborate in the assessment of the facts, which also implies concrete fact-finding tasks. The judge considered genuine the effort of the claimant to substantiate his application: the applicant presented twice before the Court in order to actively collaborate with the judge for substantiating the application. According to the judge, the applicant’s statements were also consistent with available general information from the country of origin. The judge reported that in Ghana having a homosexual relation is a criminal offence. He also made reference to the 2014 US State Department Country Report on Human Rights Practices, according to which in Ghana homosexuals are exposed to discrimination and even physical assaults, while the police avoids conducting any effective inquiry into such behaviours. Finally, the judge interpreted broadly his duty to collaborate with the claimant to the extent of suggesting him evidentiary elements that he could produce in order to substantiate his application. In fact, during a first hearing, the judge invited the claimant to get in contact with local LGBT associations. After the claimant gave his availability to do so, the judge adjourned the case in order to allow the claimant to attend activities organised by a LGBT association and to produce relevant documentation of it. At a second hearing, the claimant did in fact produce a LGBT association’s statement declaring that the asylum seeker had actively taken part to the association’s activities. This allegation was considered to fulfil the conditions set in Article 4(5)(b) of the Recast QD (as transposed in national legislation by legislative decree n. 251/2007, art. 3.5) requiring the applicant to submit all relevant documents in order to substantiate his application.

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
Cited CJEU
  • "CJEU C-148/13 and C-150/13 A.,B.,C." "CJEU C-199/12 and C-201/12 X.,Y., Z."
Dialogue techniques
n the reasoning of the Tribunal of Catanzaro, the CJEU’s preliminary ruling in the A.B.C. case played a pivotal role in terms of establishing the conditions of the benefit of the doubt and the permitted evidence when assessing the credibility of the applicant’s claims of being persecuted on grounds of sexual orientation. In A.B.C., the CJEU stated that, while it is for the asylum seeker to identify his sexual orientation and to substantiate its application, the mere declaration of the administration contesting the veracity/credibility of statements is not sufficient. Account should also be taken of Article 4(5) of the Recast QD detailing circumstances where documentary evidence may not be required, the authorities being permitted to rely on the statements of the applicants. The Tribunal of Catanzaro applied the interpretation of the CJEU of Articles 4(5), considering that although certain aspects of the claimant’s statement were not sufficiently substantiated, these aspects might not need further confirmation, provided that the cumulative conditions laid down in Article 4(5)(a) to (e) of the directive are met. In relation to the specific situation of individuals claiming a particular sexual orientation, the CJEU outlined the limitations that may exist on the type of questioning and the assessment of this credibility. Firstly, it held that questioning based on ‘stereotypical’ notions may constitute a starting point, but only a starting point for an assessment. To hold otherwise and in particular reject an application based solely on the fact that an applicant is unaware of certain organisations would be contrary to the need to conduct an individual assessment, having regard to the specific circumstances of the applicant. Secondly, it held that detailed questions regarding sex acts would violate Article 7 Charter. Thirdly, it found that authorities cannot accept videos of sex acts, the performance of sex acts and of medical ‘tests’ regarding sexual orientation. Aside from the questionable probative value of such evidence, accepting it would violate the applicant’s human dignity under Article 1 Charter. Moreover, it would encourage others to submit similar evidence leading to a de facto requirement of such evidence. Finally, it found the fact of non-disclosure of sexual orientation earlier in the application process would not be fatal to credibility, having regard to the sensitivity of the subject matter. The Tribunal of Catanzaro decision may raise some criticisms on the ground that it considered the involvement of the applicant in a LGBT association’s activities as being a probative element of his homosexual condition. There seems to be here a possible conflict with the right to respect for private life (Article 7 EU Charter, Article 8 ECHR), in so far as the fulfilment of the conditions set in Article 4(5) (b) is made dependent or at least substantially affected by the attendance of the claimant to the activities of a LGBT association. However, it is to be noted that the Tribunal of Catanzaro did not consider the credibility of the applicant statements affected by the lack of his knowledge of LGBT organisation, which have been in stark contrast with the CJEU judgment. The approach of the Tribunal was to suggest the claimant to actively attend the activities of an LGBT organisation and to postpone its decision on the substance for several weeks after re-hearing the applicant. The positive reaction of the applicant and of the report of the organisation have determined the Court to find Article 4(5)(b) conditions applicable and thus the applicant worthy of the benefit of the doubt. The Tribunal observed that the duty of cooperation in this case was bilateral, acknowledging the willingness of the applicant to answer to questions and proposals. It should be noted that the attendance of a LGBT association activities is not in itself probative of the sexual orientation of the claimant as certainly not all homosexuals participate to LGBT association activities (a conclusion put forward also by the CJEU). The judgment of the Tribunal of Catanzaro reflects an additional instance of consistent interpretation with the CJEU jurisprudence, when examining whether the criminal punishment for homosexual relation provided by the law in Ghana is applied in practice. The Court made direct application of the CJEU preliminary ruling in X, Y, Z (paras. 58-60) that: “In undertaking that assessment it is, in particular, for those authorities to determine whether, in the applicant’s country of origin, the term of imprisonment provided for by such legislation is applied in practice. It is in the light of that information that the national authorities must decide whether it must be held that in fact the applicant has a well-founded fear of being persecuted on return to his country of origin within the meaning of Article 2(c) of the Directive, read together with Article 9(3) thereof.”

Additional notes on the decision

Other notes
The Tribunal of Catanzaro decision may raise some criticisms on the ground that it considered the involvement of the applicant in a LGBT association’s activities as being a probative element of his homosexual condition. There seems to be here a possible conflict with the right to respect for private life (Article 7 EU Charter, Article 8 ECHR), in so far as the fulfilment of the conditions set in Article 4(5) (b) is made dependent or at least substantially affected by the attendance of the claimant to the activities of a LGBT association. However, it is to be noted that the Tribunal of Catanzaro did not consider the credibility of the applicant statements affected by the lack of his knowledge of LGBT organisation, which have been in stark contrast with the CJEU judgment. The approach of the Tribunal was to suggest the claimant to actively attend the activities of an LGBT organisation and to postpone its decision on the substance for several weeks after re-hearing the applicant. The positive reaction of the applicant and of the report of the organisation have determined the Court to find Article 4(5)(b) conditions applicable and thus the applicant worthy of the benefit of the doubt. The Tribunal observed that the duty of cooperation in this case was bilateral, acknowledging the willingness of the applicant to answer to questions and proposals. It should be noted that the attendance of a LGBT association activities is not in itself probative of the sexual orientation of the claimant as certainly not all homosexuals participate to LGBT association activities (a conclusion put forward also by the CJEU).

Case author

Dr. Davide Strazzari, Trento University

Published by Davide Strazzari on 13 June 2018