Case summary

Deciding Body
Tribunal of Palermo
Tribunale di Palermo
National case details
Date of decision: 01.03.17
Registration ID: 28/2016
Instance: Appellate on fact and law
Case status: Final
Area of law
Migration and asylum

Safeguards for access to justice
Right to an effective remedy before a tribunal
Relevant principles applied

Identification of the case

National law sources
  • Legislative Decree nr. 251/2007
  • Legislative Decree nr. 25/2008
  • Legislative Decree nr. 286/1998, art.5 co. 6
EU law sources
  • Art. 47 CFREU
ECHR provisions
art. 6 and 13 ECHR

Summary of the case

Facts of the case
The applicant is a Ghanaian national who declares having left his country for several reasons: a superstition problem caused by his mother’s death in childbirth, harassment by an uncle for inheritance reasons, possible consequences for a fire he had caused without fault, problems with his partner’s family. For these reasons, he had suffered injuries, aggressions and risks for his own life. The applicant then told to have moved to Libya in 2009, where he lived for five years. In 2013, he was joined by his partner, who was heard by the Commission as well. He declares to fear to be arrested for the fire he had caused once returned to Ghana. The Circuit Commission rejected his request for international and humanitarian protection, holding the narration not to be reliable. As a consequence, the applicant lodged an application to the Tribunal of Palermo, asking for humanitarian protection. The Tribunal of Palermo upholds the application granting humanitarian protection. The Tribunal considers an objective situation, eligible for grounding domestic protection, the long stay in Libya and the subsequent escape due to Gaddafi’s fall.
Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied
Humanitarian protection (art. 35 Legislative Decree 25/2008)
Reasoning (legal principles applied)
The Tribunal agrees with the Commission as far as the non reliability of the narration is concerned, but complains that the Commission has not properly considered and evaluated the period of stay in Libya. As a matter of fact, the request for international protection pursuant to art. 8 Legislative Decree 25/2008 must be examined in light of precise and up-to-date information on the country of origin of the applicants and “if necessary, on the country of transit…”. It is the judge’s duty to evaluate the situation in transit countries, if it is clear that the applicant has his family, economic or working interests in the country of transit. The Tribunal, recalling the Court of Cassation’s case law (Court of Cassation, 6th CriminalSection, n. 31929/2016), considers the applicant integrated in the new country, where he lived and worked for quite a long period, also rejoined by his partner. He was then forced to abandon it because of Gaddafi’s fall. Art. 8 of the abovementioned Legislative Decree is applicable. The humanitarian protection (art. 5 and 6 of Legislative Decree 286/98), having residual nature, can be granted in case of “serious reasons” that could also be “objective” situations that preclude the deportation or make it unadvisable. Therefore, the Tribunal grants humanitarian protection.

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

Safeguards for access to justice
  • Right to an effective remedy before a tribunal
Relevant principles applied
  • Effectiveness
Principle of effectiveness
An effective remedy entails a complete analysis of the applicant’s situation, that takes into account the long stay in a transit country. For this reason, the judge must cooperate and, if necessary, exercise his ex officio powers to collect evidence. This could grant the fair, complete and effective analysis of the application.

Elements of judicial dialogue

Vertical dialogue type
  • Dialogue between high court - lower instance court at national level
Dialogue techniques
Explicit reference to Court of Cassation's judgement in Cass., VI Sez. Pen., nr. 31929/2016

Case author

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

Published by Federica De Gottardo on 10 November 2018