Case summary

Deciding Body
Cassation Court
Corte di cassazione
Italy
National case details
Date of decision: 13.12.16
Registration ID: 25534/2016
Instance: Cassation (review)
Case status: Final
Area of law
Migration and asylum


Asylum

Identification of the case

National law sources
  • art. 3.1 legislative decree n. 251 2007
EU law sources
  • art. 4.1 directive 2011/95/UE

Summary of the case

Facts of the case
The claimant, a Nigerian citizen, fled his Country, claiming a fear of persecution on the ground of religion. He referred that his father – a minister of the Christian Apostolic church – had been kidnapped and his mother killed. The administrative authorities deemed not believable the documentations produced by the claimant (a copy of a newspaper’s article and the mother’s death certificate) and they doubted of the genuineness of the asserted Christian religion of the claimant. The judge of first instance, before which the state administration did not appear, refused to grant refugee status but granted subsidiary protection. The Home Affairs Minister appealed against the decision, contesting the veracity of the documents produced and the lack of evidentiary elements to substantiate the asylum application. The Court of Appeal upheld the recourse and denied any form of international protection. With Decision No. 25534/2016, the Italian Court of Cassation (Supreme Court) quashed the Court of Appeal decision on the grounds that the appeal judge did not comply with its positive duty of collaboration with the asylum seeker.
Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied
The Court held that the dispositive principle, according to which it is for the claimant to produce evidence, does not strictly apply in asylum adjudication. While the asylum seeker has a duty to substantiate his request, in case the evidence produced are not sufficiently corroborative, the judge cannot simply reject the application. The duty to cooperate implies for the judge to admit measures of inquiry on his own motion and to verify the credibility of the asylum seeker application having regard to updated country of origin information, which the adjudicating judge must assess on his own.
Reasoning (legal principles applied)
The Court of Cassation held that when assessing asylum claims the dispositive principle commonly applicable in civil proceedings cannot be applied in its strict terms. The applicable evidentiary procedural rules in asylum adjudication have to be enforced according to a more lenient standard than usual civil cases (N.B. in Italy international protection claims are assessed by civil judges). This means not only that general procedural deadlines for submitting evidence or content of evidence are not applicable, but also that the judge must exert an “unofficial probative inquiry” (“attività istruttoria ufficiosa”), which includes the recourse to diplomatic channels or even international rogatories. This obligation arises especially in cases where the respondent (the Home Affairs minister) contests the authenticity of the claimant’s documentation and statements. The positive obligation to actively cooperate with the asylum claimant in assessing his application is grounded on EU law (Article 4 of the Qualification Directive). Because of that, internal procedural law has to be consistently interpreted with it. The positive obligation on the judge to establish on its own motion measures of inquiry is also considered as a way to compensate the otherwise weak procedural position of the asylum seeker. This decision is consistent with previous case-law of the Court of Cassation (see Cassation, plenary session, dec. n. 27310/2008).

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

Relation to scope of the Charter
Although the Court of Cassation did not refer to the Charter, but to the statutory "duty of cooperation" as enshrined in art. 4 of the qualification directive, scholars highlights the strict connection between this provision and the right to have an effective remedy, within the meaning of art. 47 of the Charter.

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