Case summary

Deciding Body
Tribunal of Turin, Third Section (Penal)
Tribunale di Torino, sez. III penale
Italy
National case details
Date of decision: 27.01.14
Registration ID: 6288/13
Instance: 1st Instance
Case status: Final
Area of law
Migration and asylum


Other

Life-cycle diagram

  1. 27 January 2014

    Judgment of the Tribunal of Turin x-rays not sufficient evidence

  2. 15 May 2016

    Giudice di Roma confirms the Judgment of the Tribunal of Turin

  3. 23 December 2016

    Tribunal per i minorenni of Venice confirms judgment Trib.Turin

  4. 1 August 2017

    Law 47/2017

Identification of the case

National law sources
  • Art. 495.1 PENAL CODE Ministerial memorandum 11 July 2007 n. 17272/7

Summary of the case

Facts of the case

A third country national is charged with the offence of false statement to a public officer of his own identity (art. 495 Criminal Code), as he declared to be minor of age (16). According to an x-rays exam, the assessment on his bone age corresponds to a real age higher than 18 years. Therefore, the Tribunal must assess whether the x-rays examination on the wrist of the defendant is per se a sufficient, reliable and appropriate ground in order to overturn the statements of the defendant, that previously declared a lower age.

Type of enforcement
  • Criminal judicial enforcement
Measures, actions, remedies claimed/applied

Aquittal

Reasoning (legal principles applied)

The Tribunal of Turin refers to a standard introduced by the Corte di cassazione (ex multis, Sez. I, n. 35890, 18 July 2012; sez. I, n. 2993, 23 June 1993), according to which the outcomes of an x-rays examination constitute satisfactory evidence to declare the full age of the defendant, even when documental certifications declare the opposite.

Notwithstanding, the Tribunal does not follow the Corte di cassazione case-law, on the ground that age assessment through x-rays examination is a highly controversial and sensitive issue. The Tribunal refers to the administrative policy set forth by Italian authorities that, grounding on relevant international and EU sources, recommends to identify a presumption of minor age in case of doubt or uncertainty (see the Memorandum of the Ministry of Interiors, 2007; Opinion of the Italian Supreme Council of Health, 2009). According to the reported evidence, the mere x-rays examination cannot represent satisfactory proof able to withdraw beyond any reasonable doubt the defendant’s statement declaring his minor age. The Tribunal recognises that each method for age assessment is conditioned by a number of factors, which made them merely able to determine a variable range within which it is possible to insert the age of an individual.

With specific regard to the wrist’s examination, such method, even if statistically reliable, may suffer in the specific concrete case for a variably broad margin of error, which may depend from the technique, the machinery or the professional’s expertise. The range becomes even more complex and unpredictable when considering how specific characters of the individual examined may impact on the examination outcomes. Only whether this method finds corroboration in other pieces of evidence it will have a decisive evidential relevance.

Grounding on this reasoning, in the absence of further elements able to confirm the outcomes of x-rays examination, the probative force of the latter cannot be regarded – with regard to the specific and concrete case at stake – as a reliable proof beyond any reasonable doubt. Therefore, the Tribunal discharges the defendant because the existence of facts has not been proven. It is worth noting that this is a case in which age determination is assessed within a criminal case, in which the applicant is charged with a crime of false declaration to public officer with regard to his age (for more insightful analysis see below). Thus, here the judicial review on the fairness and suitability of the evaluation made by competent public authorities of age assessment outcomes represents an autonomous and decisive ground that gives the appellant a specific remedy against his accusation. The judge hearing this case attributes to public administration a particular responsibility, which must find adequate evidence within administrative decision-making process, in fairly and adequately interpreting age assessment outcomes. Thus they cannot proceed with an automatic reception of medical assessment, but administration must exercise its discretionary power taking into account all factual circumstances. Age assessment seems to put more responsibility on the administration in terms of burden of proof.

Additional notes on the decision

Impact on legislation/policy

The Italian Parliament recently passed Law n. 47/2017 on “Protection measures for unaccompanied foreign minors”. Art. 5 provides for principles with regard to the procedure of identification of unaccompanied minors by reforming the Legislative Decree n. 142/2015, which implemented the Recast Directives 2013/33/EU and 2013/32/EU. According to art. 5 of Law no. 47/2017, when – after having performed an interview with a minor in order to investigate his/her personal and familiar history – “legitimate/well-grounded doubts” persist with regard to the age of the individual, the age is certified firstly through identity papers. When well-grounded doubts still persist, social and medical examinations can be ordered by the competent judicial authority (the Procura della Repubblica of the Tribunal of minors). The individual must be informed of this procedure in a language which he/she is able to understand and according to his/her maturity and literacy level; the assistance of a cultural mediator must be provided. In particular, he/she must be informed on the type of examination, possible outcomes and consequences, as well as on the possible consequences of a refusal to undergo the examination. The examination must be performed according to a multidisciplinary approach; the outcomes must be communicated to both the individual and to the person that has the guardianship.

The margin of error of the assessment must be also certified in the final report. When also at the end of the assessment doubts persist, minor age must be presumed. Against the decision, it is possible to make appeal and it is decided through an accelerated procedure within 10 days (in via d’urgenza). It must be underlined that the law does not identify the competent judge.

Impact on national case law

After the judgment of the Tribunal of Turin, other Tribunals implemented the same approach, thus consolidating a case-law which considers age assessment procedures based merely on medical investigations inadequate, unreliable and incomplete in order to evaluate the effective age of an asylum seeker.

In 2016, the Giudice di pace in Rome (15 May 2016) with regard to a case involving an unaccompanied minor that illegally entered in Italy, in the light of the “supreme interest of the child” (New York Convention), withdrew the expulsion order against the minor, on the ground of a physically non-invasive assessment which attested the compatibility of minor’s development with an age of 17 years (holistic and multidisciplinary age assessment) and it is characterised, in the same way that an invasive assessment based on x-rays examination (2 years of range).

The Tribunale per i minorenni in Venice (3676/16, 23 December 2016), facing a conflict between the appellant’s attestation and the outcomes of an x-rays- examination, has established that the x-rays examination represents a debatable and uncertain procedure and that the legal order provides for the presumption of minor age in case of doubt (see DPR 488/88, art. 8.2). Instead of the mere examination of the radiography, it would have been advisable to implement a multidimensional approach, which considers also the visit of a paediatrician and the specific subjective factors of the individual (i.e. education, genetics, family environment). It expressly makes reference to the Judgment of the Tribunal of Turin.