Italy, Court of Cassation, 4th Civil Section, 10 April 2015 7333/2015

Identification of the case

• Right to asylum (art. 18 CFREU)

• Legislative Decree n. 25/2008
• Legislative Decree n. 251/2007
• Legislative Decree n. 150/2011

• Art. 18 CFREU
• Council Directive 2004/83/EC of 29 April 2004

Summary of the case

The applicant is a Nigerian national. The Court of first instance granted him subsidiary protection, while Bologna Court of appeal reformed the first decision, on the ground that the duty for the court to ascertain the situation of the country of origin does not exclude the duty of the applicant to adduce individual situation of risk. The Court of appeal found there was no connection between the general situation of violence in the country of origin and the individual situation of the applicant, who left the country of origin as consequences of a threat coming from his own family (he declared to be persecuted by his relatives for issues related to the succession to his father’s throne and that his wife had been murdered by killers sent by his uncle). In such situation, according to the Court of Appeal, no autonomous assessment could be conducted by the judicial authority. The Court of Cassation gives the decision on the appeal submitted by the applicant.

• Civil judicial enforcement

Annulment of Appeal decision.

The Supreme Court decides upon an appeal submitted for alleged violation of domestic asylum law (articles 2-6 and 14 decreto legislativo no. 251/2007 and article 8 decreto legislativo no. 25/2008) and of articles 2 and 3 of the European Convention on Human Rights.

The applicant claims that subsidiary protection was denied on the ground of his silence on the general situation of Nigeria.

The Supreme Court states that domestic law (article 3 decree no. 251/2007 cited) provides for the duty for the national authorities to carry out an assessment of the risk for the applicant of being persecuted or suffering serious harm on the basis of the personal circumstances adduced. The national judge has to consider “all relevant facts as they relate to the country of origin at the time of taking a decision on the application” (see directive 2004/83, art. 4 para. 3 lett. A).

The applicant has the duty to submit as soon as possible all elements needed to substantiate the application for international protection (see directive 2004/83, art. 4 para. 1), but this does not entail a duty of explicit qualification of the situation that makes him or her eligible for protection, since legal qualification falls within the activity of the judicial authority. As a consequence, the assessment over the credibility and veracity of the declarations of the applicant has to be conducted taking into account all the relevant information about the country of origin, ascertainable by the court itself from a wide number of sources. Thus the Supreme Court reforms the decision given by the Court of appeal for having excluded subsidiary protection for the applicant, although considered credible, on the ground that this would have entailed granting a form of not-requested protection, that is a form of protection for a risk that the applicant did not even perceive (i.e. protection related to the general situation of violence in Nigeria, while the applicant based his application on a persecution coming from his own family). The Supreme Court does not share the latter legal reasoning, because the Court of appeal has not considered that the core issue was that the applicant was deprived of any form of protection against the risk of serious harm due to the general situation of violence in the country of origin.

The Supreme Court also recalls the principles set out by the CJEU in the cited cases Elgafaji and Diakitè (principles that were not respected by the Court of appeal), according to which “the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection” and vice versa.

The Supreme Court finds that the Court of appeal has violated the domestic law, which, according to art. 4 of the directive 2004/83, states that:

• it is the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection, but is also the duty of the national authority to assess the relevant elements of the application;
• the elements submitted by the applicant consist of his statements and all documentation at the applicants disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality, country and place of previous residence, previous asylum applications, travel routes, identity and travel documents;
• the assessment of an application for international protection is to be carried out on an individual basis and includes taking into account all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied;
• the aspects of the applicant’s statements that are not supported by documentary or other evidence shall not need confirmation, when the following conditions are met:

           (a) the applicant has made a genuine effort to substantiate his application;

           (b) all relevant elements, at the applicant’s disposal, have been submitted, and a satisfactory explanation regarding any lack of other relevant elements has been given;

           (c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the  applicant’s case;

           (d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and

           (e) the general credibility of the applicant has been established.

On the basis of letters c) and e) the assessment of the credibility of the applicant, when positive, has to be completed by the Court collecting information on the country of origin on its motion, in order to make a definitive evaluation of the risk incumbent on the individual (this is consistent with the particular deformalised procedure provided for by domestic legislation for international protection applications, according to article 702 bis codice of civil procedure; see article 19 decreto legislativo no. 150/2011).

In conclusion, the Supreme Court states that when the applicant adduces a situation of risk of death or serious harm (also on the basis of a persecution for familiar, religious or ethnic reasons) and he is credible in his declarations, if the risk derives from the incapacity of the national authorities in the country of origin to grant protection, the national judge has to gather information on its own motion; then, if a general situation of violence exists, the applicant has to be considered eligible for international protection, even if no explicit subsumption of the concrete situation in the legal scheme was set out in the application or when making declarations during the legal proceedings.

In the case, given the domestic armed conflict and the wide situation of conflict between different tribes, the lack of control by national Nigerian authorities and the fact that the applicant submitted factual circumstances and expressed the fear of being exposed to the risk of a serious harm in case of expulsion, the decision was reviewed and the case was referred back to the Court of appeal.

The Charter of Fundamental Rights of the European Union is not mentioned.

Role of the Charter and role of the general principles on enforcement

Although the judgement concerns a case falling inside the scope of application of the EU Charter of fundamental rights (art. 18, right to asylum) and the judge makes application of the principles set out by the CJEU (cases Elgafaji and Diakitè), there is no express mention of the Charter or of any connection factor (while the judgement makes reference to the ECHR, since the appeal was lodged also for violation of articles 2 and 3 ECHR). The Italian Supreme Court only mentions the “European legislator” when making reference to the genesis and intent of the national legislation on international protection.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

Conform interpretation with EU law as interpreted by the CJEU.

The Italian Supreme Court reforms the judgement of the Court of appeal because it did not take into account the interpretation of the directive 2004/83 provided by the CJEU (cases Elgafaji and Diakitè). Conform interpretation with EU law as interpreted by the CJEU. The interpretation followed by the Italian Supreme Court and by the CJEU partially differs from the one held by the ECHR in Grand Chamber, Case of F.G. v. Sweden, application no. 43611/11, judgement 23rd March 2016, where the Strasbourg Court states (paras. 126.127) that “in relation to asylum claims based on a well-known general risk, when information about such a risk is freely ascertainable from a wide number of sources, the obligations incumbent on the States under Articles 2 and 3 of the Convention in expulsion cases entail that the authorities carry out an assessment of that risk of their own motion (see, for example, Hirsi Jamaa and Others v. Italy [GC], cited above, §§ 131-133, and M.S.S. v. Belgium and Greece [GC], cited above, § 366). By contrast, in relation to asylum claims based on an individual risk, it must be for the person seeking asylum to rely on and to substantiate such a risk”. As for the burden of proof, the ECHR holds a broad “principle of information”, while the CJEU and the Italian Supreme Court states that “facts” have to be adduced by the applicant (although the legal qualification is left up to the judge).

The aim pursued by the national court when using judicial interaction technique is to ensure an interpretation and application of domestic law (decreto legislativo no. 251/2007) consistent with EU directive 2005/85, as interpreted by the CJEU.

Additional notes on the decision

The judgement, in making application of the principles set out by the CJEU in cases Elgafaji (2009) and Diakitè (2014), seems consistent with the case-law of the Italian Supreme Court at the moment of the decision (see Court of Cassation, no. 16202/2012; Court of Cassation, no. 10202/2011; Court of Cassation, no. 15466/2014). Also most of the following case-law from the Supreme Court seems consistent (see Court of Cassation, no. 14998/2015). Nonetheless, many decisions from lower courts (i.e. the ones reformed in the aforementioned judgements) give a different interpretation of the burden of proof, by stating that no international protection can be granted to an applicant who does not adduce the situation of general violence of the country of origin. These judgements are based on the “dispositive” principle applicable to all civil proceedings in the Italian system, according to which the court cannot decide a case without request of the interested party and without specific submissions or satisfy claims in greater extent than requested. According to this principle, the Italian judge cannot give decisions, assess situations and look for evidence outside the scope of the parties’ submissions, even when fundamental rights are involved (see Court of Cassation, no. 19197/2015; domestic legal references: article 2697 civil code, articles 99, 112 and 115 code of civil procedure).

Other national case-law that refer to this decision or to the CJEU’s judgments Elgafaji and Diakitè which it implemented:

• Supreme Court:

Court of Cassation, no. 4404/2016

Court of Cassation, no. 97/2016  

Court of Cassation, no. 24111/2015  

Court of Cassation, no. 21902/2015  

Court of Cassation, no. 19184/2015  

Court of Cassation, no. 16202/2015  

Court of Cassation, no. 14998/2015

Court of Cassation, no. 7333/2015  

Court of Cassation, no. 4635/2015  

Court of Cassation, no. 17406/2014  

Court of Cassation, no. 15466/2014  

Court of Cassation, no. 6503/2014  

Court of Cassation, no. 8281/2013  

Court of Cassation, no. 16203/2012  

• Lower courts:

Tribunale Catania (Catania Court of first instance), 30^th May 2016, case no. 16051/2014

Tribunale Venezia (Venezia Court of first instance), 18^th February 2016  

Tribunale Venezia (Venezia Court of first instance), 17^th February 2016  

Corte appello Trieste (Trieste Court of appeal), no. 7/2016  

Corte appello Milano (Milano Court of appeal), no. 421/2015  

Tribunale Bologna (Bologna Court of first instance),  no. 25/2014