Case summary

Deciding Body
Tribunal of Catania
Tribunale di Catania
National case details
Date of decision: 23.06.16
Registration ID: 521/2014
Instance: 1st Instance
Case status: Pending
Area of law
Migration and asylum

Safeguards for access to justice
Art. 47, CFREU, Art. 6 ECHR, Art. 13 ECHR
Relevant principles applied
Effectiveness, Proportionality

Identification of the case

National law sources
  • Article 10 of the Italian Constitution
  • Legislative Decree n. 251/2007
  • Legislative Decree n. 25/2008
  • Legislative Decree n. 286/1998
EU law sources
  • Article 47 CFREU
ECHR provisions
Article 6, 13 ECHR

Summary of the case

Facts of the case
In his first application, the applicant, a Malian citizen, told the Commission he flown from Kidal city in order to escape from Touareg rebels fighting against the Malian Government for independence in the Azawad zone. After his request being refused in 2009, the applicant lodges a new application pursuant to art. 35 Legislative Decree 25/2008. He asks for the recognition of his refugee status, or in the alternative, for subsidiary protection, or asylum pursuant to art. 10 of the Italian Constitution. The Tribunal accepts his request for protection under art. 29 c.1 lett. b). It grants the applicant subsidiary protection, taking into consideration the serious risk for personal safety would he returned to Mali, bearing in mind the dangerous situation in the country.
Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied
Declaration of refugee status, subsidiary protection and, in the alternative, asylum.
Reasoning (legal principles applied)
The Tribunal judges the second application admissible, as the applicant submits new circumstances: he gave false identity, because some fellow passengers had suggested him to pretend to be Guinean, in order to get protection more easily. In addition, he also produced new documents, including a birth certificate, an ID and a certificate of the Embassy of Mali, confirming his Malian nationality. The judge does not acknowledge the refugee status, for the lack of the proscribed requirements. According to him, the narration of facts is not persuading and the facts are not proven. Nevertheless, the Tribunal concedes subsidiary protection taking into account the serious situation in Mali emerging from the analysis of COI sources. The judge analyses the jurisprudence concerning the right to asylum pursuant art. 10 of the Italian Constitution. In the view of the judge, it is part of the right to international protection granted by art. 2 lett. b Legislative Decree 25/2008, and therefore could not be subject to an autonomous request.

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

Safeguards for access to justice
  • Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
  • Explicit reference to Art. 6 ECHR
  • Explicit reference to Art. 13 ECHR
Relevant principles applied
  • Effectiveness
  • Proportionality
Principle of effectiveness
The right to an effective remedy includes the right to lodge a second international protection application, if there are (a) new facts, concerning persecution or (b) new facts constitutive of the right to protection itself or (c) new evidence of the facts, that the applicant could not include in its application not due to his fault or (d) the situation in the country changed. For an effective remedy, the duty of the judge to cooperate in fact finding is crucial.

Elements of judicial dialogue

Dialogue techniques
Internal judicial dialogue on the asylum request and art. 10 of the Italian Constitution: Cass. 1997/4674; Cass. 1999/907 Cass. n. 25028 del 25/11/2005, nn. 26278 e 26279 del 2/12/2005 e nn. 3845 e 3846 del 22/2/2006

Case author

Roberta Brusco, Tribunal of Milan, English translation by Sara Paiusco, University of Trento

Published by Sara Paiusco on 17 October 2018