Italy, Tribunal of Milan, 14 June 2016

Identification of the case

• art. 19 comma 9, decreto lgs. No. 150/2011

• articles 12,14, 31 and 46 of the Directive 2013/32 Asylum Procedures

Summary of the case

On 20 March 2015, Mr S. reached Italy, from Mali, and lodged an application for asylum. On 10 March 2016, he was interviewed by the Commissione Territoriale per il riconoscimento della protezione internazionale (Regional Commission for the grant of international protection; ‘the Commissione territoriale’). On 5 April 2016, the Commissione Territoriale informed Mr S. that it was not going to grant him refugee status or to consider him eligible for subsidiary protection.

On 3 May 2016, Mr. S. appealed against the decision of the Commissione Territoriale before the referring court. The national court considers that the application is manifestly unfounded.

Under the Italian law applicable at that time (art. 19, legislative decree n. 150/2011), the judge may alternatively follow two procedural patterns: it may hold a hearing with the parties or it can opt for deciding without hearing the applicant when it considers that the solution that could be reached on the basis of the evidence existing in the case file would be no different even if a further interview would be conducted with the applicant.

The referring court has no doubt concerning the manifestly unfounded nature of the action brought by Mr S. and its intention would be that of dismissing the case without hearing.

• Civil judicial enforcement

Right to be heard before a national court in accelerated asylum proceedings

Must Directive 2013/32 (in particular Articles 12, 14, 31 and 46) be interpreted as permitting a procedure, such as the Italian procedure (under Article 19(9) of Legislative Decree No 150 of 2011), whereby a judicial authority seised by an asylum-seeker — whose application has been rejected by the administrative authority responsible for considering applications for asylum after it has conducted a full examination, including an interview — may, in cases where the application for judicial review is manifestly unfounded and the administrative authority’s rejection of the application is thus incontrovertible, dismiss the application for judicial review without preparatory inquiries and without being required to afford the applicant a further opportunity to be heard?’

The point of departure of both the CJEU decision and the A.G. Opinion is that while the personal interview of an applicant for international protection is mandatory at the administrative stage, in pursuance of art. 14 of Directive 2013/32 (Asylum Procedures Directivem herein APD), such a requirement is not explicitly foreseen with regard to the appeal procedures as set out in Chapter V of the APD. However, the CJEU had to assess whether such an obligation of an oral hearing before the court in asylum proceedings is required under Article 47 EU Charter and/or by a systematic reading of Articles 12,14, 31 and 46 of the APD.

When assessing the requirements of oral hearing during appeal proceedings, both the CJEU and the AG, agreed that there is a close link between the appeal and the first instance phases, and thus the personal interview held during the administrative stage is of critical importance also for the judicial stage (see respectively point 57 of the AG Opinion, para. 42 of the CJEU judgment).

Indeed, the close relation between the administrative and the judicial phases is such that the latter is considered by the Advocate General as having the primary purpose of reviewing the legitimacy of the administrative decision refusing the application for international protection. However, this is not the current understanding of the purpose of the judicial stage in international protection cases under Italian law. The judicial stage is seen as having the goal to ascertain whether the conditions for the granting of international protection are fulfilled, and not to review the administrative decision. This is so, particularly since asylum adjudication falls under the jurisdiction of civil courts rather than administrative ones (where the latter are normally conceived as in charge of judicial review of administrative acts under Italian law). This different conception of the role of the judicial phase in asylum proceeding cases and the idea that the judicial phase evaluates facts and point of law of the asylum application autonomously with regard to the preceding administrative phase, although relying on the factual elements assessed in the administrative phase, may explain why the majoritarian Italian jurisprudence considered always necessary to have a personal hearing of the applicant in the judicial phase.

On the contrary, other national jurisdictions placed critical importance on the personal interview at the administrative stage, while hearing before the court should rather assess how the administration fulfilled its duties to state reasons in fact and law; whether any errors of laws were committed (see for instance Belgium). Therefore, an evaluation of the transcript of the personal hearing carried out during the administrative stage by the appeal judges should be sufficient, rather than replicate the oral hearing automatically.

The Court takes a somehow opposite view and it considers that the “failure to give the applicant the opportunity to be heard in an appeal procedure constitutes a restriction of the right of the defence, which form part of the principle of effective judicial protection enshrined in Article 47 of the Charter” (para. 37)

However, since the right to a fair and public hearing is not an absolute right, restrictions can be established in certain circumstances.

In fact, the right of defence, as other fundamental rights, may be restricted provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not entail, with regard to the objective pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. (para. 38). Once again, the principle of proportionality comes into play.

In that regard, the Court relies on its previous judgements to the extent of holding that according to the ECtHR case-law (explicit reference to ECtHR, 23 November 2006, Jussila v. Finland CE:ECHR:2006:1123JUDO07305301) Article 6(1) of the ECHR does not impose an absolute obligation to hold a public hearing and does not necessarily require that a hearing be held in all proceedings. (para. 40).

Establishing whether the right to an effective remedy and fair trial requires or not a personal hearing of the applicant in the judicial phase of an asylum procedure is a question to be assessed in the light of the judge’s obligation to carry out the full and ex nunc examination of both facts and points of laws as required by Article 46 of APD. (para. 44)

It must be essentially up to the national judge to evaluate whether the information in the case-file – including where applicable the report of or the transcript of the personal interviews – are sufficiently informative as to exclude the need of a personal hearing in the judicial phase.

The pivotal role of the judge is further emphasized by the Court when it warns that EU Member States' legislators are not authorised to prevent a court or tribunal from ordering that a hearing be held where he considers necessary in order to ensure a full and ex nunc examination of both facts and points of law (para. 48).

The Court reasoning is consistent with the AG conclusions, however there are differences in their reasonings.

AG Campos Sànchez Bordona focuses more specifically on one dimension of the right to be heard. According to him, the question is not whether the right to be heard in general must be guaranteed in the judicial phase of the asylum procedure but rather whether a specific type of it, namely the right to be interviewed, must be guaranteed (para. 37-38).

The AG highlights that a right to be personally heard applies only at the administrative stage of the asylum procedure, while, as to the judicial phase, it is the right to an effective remedy according to Article 47 of the Charter that comes into play. However, the right to be heard by a judicial authority shall be interpreted as the right to explain – not necessarily orally, but also in written form - the reasons which the applicant considers necessary in defence of his claims (point 52). The right to be heard in the judicial phase does not imply that the applicant should be interviewed personally provided that that applicant has been heard personally in the administrative phase and that he can present written documentations in the judicial phase, according to the adversarial principle. In this, AG follows the findings expressed in the M.M. (2) case (points 45-46, C-560/14).

However, according to the AG, the fact that a person that lodges an international protection application has not a right to be heard personally in the judicial phase does not mean that the judge cannot decide to admit the personal hearing whenever he deems it necessary for the better administration of the justice (points 54-55). In sum, the personal hearing of an asylum applicant should apply in the judicial phase not because it is a component of the fundamental right of the asylum applicant to have an effective remedy, but because and to the extent that the judge considers it necessary for carrying out his duty of fully review factual and legal circumstances of the applicant’s situation.

The Court departs from this reasoning since it seems to consider the right be heard (personally) in appeals procedure as part of the right of defence. Admittedly, in paragraph 37 the Court refers generally to the “failure to give the applicant the opportunity to be heard in an appeal procedure”, without further qualification of the right to be heard. However, the subsequent paragraphs suggest that the Court of Justice wants to refer precisely to the right to be heard personally.

Having qualified the right to be personally heard in the judicial phase of an asylum procedure as a component of the right of defence of the person lodging an international protection application, the Court admits nevertheless that this right is subject to limitations, as any other fundamental right, according to the wording of Article 52 of the Charter.

These limitations consist precisely in the possibility for a judge to deem not necessary the hearing of the applicant, provided that this has occurred in the administrative phase and the judge does not deem necessary to conduct a new hearing for the purpose of ensuring full and ex nunc examination of facts and point of law.

It is not clear, though, which are the objectives of general interests whose pursuance justifies a restriction of the right to be heard personally and that allow the judge to dismiss the appeal without hearing the applicant whenever it deems the probative elements sufficient for deciding the appeal.

In its preliminary reference, the referring court has mentioned two different grounds that can justify such a decision not to hear the clamant, namely in case of reasons of procedural efficiency.The Court of Justice does not refer to any of them.

The Court concludes by holding that Articles 12, 14, 31 and 46 of the APD read in the light of Article 47 of the Charter (an express reference to Article 47 of the Charter that lacks in the conclusion of the AG opinion), must be interpreted as not precluding a national court from dismissing an appeal against a decision rejecting a manifestly unfounded application for international protection without hearing the applicant, provided that a hearing occurred in the administrative phase and the judge does not deem necessary to conduct the hearing for the purpose of ensuring full and ex nunc examination of facts and point of law.

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

Article 47 CFR was not expressly cited by the referring national court, however in interpreting the meaning of Article 46(3) APD, the CJEU referred to Article 47 CFR.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to an effective remedy before a tribunal
• Explicit reference to Art. 6 ECHR

• Proportionality

Having qualified the right to be personally heard in the judicial phase of an asylum procedure as a component of the right of defence of the person lodging an international protection application, the Court admits nevertheless that this right is subject to limitations, as any other fundamental right, according to the wording of Article 52 of the Charter.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

• ECTHR, 23 November 2006, Jussila v. Finland CE:ECHR:2006:1123JUDO07305301

The Tribunal of Milan addressed a preliminary reference for the purpose of  understanding the right to a personal hearing can be limited in accelerated proceedings, when the individual had already been heard within the administrative phase. The Tribunal of Milano highlights that the majoritarian Italian jurisprudence is in favour of having a mandatory hearing of the applicant on the grounds that only this option would permit the respect of the right to effective remedy and the full and ex nunc examination of both facts and points of law, as required under Article 46(3), 2013/32/EU directive.

In order to provide an answer the CJEU refers to the ECtHR case-law to the extent of highlighting that Article 6 ECHR does not impose an absolute obligation to hold a public hearing and does not necessarily require that a hearing be held in all proceedings. (References to ECTHR, 23 November 2006, Jussila v. Finland CE:ECHR:2006:1123JUDO07305301).

Clarification of the nature and limitations of the right to a hearing before a court within accelerated asylum proceedings

Additional notes on the decision

After the Tribunal of Milan’s preliminary reference and before the CJEU decision, the Italian legislator introduced major changes to the judicial phase of the asylum procedure.

According to Law No. 46 of 13 April 2017, the personal hearing of the asylum applicant, during the administrative stage, has to be video-taped.

In the judicial phase, the judge must in principle base its decision on the written observations presented by the parties and on the probative elements collected during the administrative stage, which include the video-tape of the applicant’s personal hearing.

However, the new law introduced some derogations, allowing the judge to order the personal hearing of the recurrent in case he considers necessary to do so after the vision of the video-tape or in case the judge deems indispensable to require the parties to provide clarifications.

Although the new provisions foresee the personal hearing of the asylum applicant at the judicial stage as an exception, they seem to grant the judge a sufficient discretion in deciding whether or not to order the personal hearing of the applicant.

The new Italian provisions seem to comply with the requirements set by the CJEU in the S. case. This decision can be useful invoked to avoid restrictive interpretations of the wording of the new law and to guarantee the judge discretion in the matter against further restrictive legislative changes.