Case summary

Deciding Body
Tribunal of Florence
Tribunale di Firenze
Italy
National case details
Date of decision: 03.03.17
Registration ID: 849/2015
Instance: Appellate on fact and law
Case status: Final
Area of law
Migration and asylum


Asylum
Safeguards for access to justice
Art. 47, CFREU, Right to access a court, Right to an effective remedy before a tribunal
Relevant principles applied
Effectiveness, Proportionality

Identification of the case

National law sources
  • Art. 3 Constitution
  • Legislative Decree nr. 251/2007
  • Legislative Decree nr. 25/2008
EU law sources
  • Art. 7 CFREU
  • Art. 21 CFREU
  • Art. 47 CFREU
ECHR provisions
Art. 6, 8, 13, 14 ECHR

Summary of the case

Facts of the case
The case deals with a Ghanaian national forced to leave his country on 3 May 2012 because of his sexual orientation. He was undertaking a serious risk of being killed by the people of his village, or to be imprisoned, as homosexuality is a criminal offence in Ghana. The Circuit Commission dismissed his request for international and humanitarian protection, considering his narration not convincing. The applicant refers the matter to the Tribunal of Florence, asking for subsidiary protection, or, in the alternative, humanitarian protection because of his impossibility to go back to Ghana, due to his sexual orientation and the criminal prosecution of homosexuality in his country. The Tribunal of Florence admits the remedy and acknowledges the refugee status, overcoming the demand principle of civil procedure (the applicant was asking for subsidiary and humanitarian protection).
Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied
The applicant appeals the Commission decision pursuant to art. 35 Legislative Decree 25/2008, in order to be granted subsidiary or humanitarian protection. The Tribunal grants him the refugee status.
Reasoning (legal principles applied)
The Tribunal, after examining the requirements for the recognition of the refugee status (art. 2 lett. e) Legislative Decree 251/2007) and the classification of an act as act of persecution (art. 7 Legislative Decree 251/2007), stresses the burden of proof on the applicant. In this respect it recalls that the burden on the applicant is reduced and fulfilled once he has complied with the obligations enshrined from art. 3 Legislative Decree 251/2007. For a similar principle, see also Court of Cassation n. 26278/2005 and 18353/2006, even if not referred to in the decision. The Tribunal stresses the judge’s duty to cooperate. According to Legislative Decree 150/2011, he is required to “proceed ex officio adopting the necessary actions to collect the evidence required to decide on the issue” (art. 19 co. 8 Legislative Decree 150/2011) See also Court of Cassation, n. 27310/2008 (not quoted as well). The judge, who has the duty to evaluate the reliability of the narration both from the subjective and objective point of view (Court of Cassation, n. 17576/2010), assumed that the requirements for refugee status were satisfied. As a matter of fact, the applicant could be considered part of a social group (homosexuals) and subject to personal and direct persecution, as homosexuality is punished as a criminal offence in Ghana (art. 105 of Ghanaian Criminal Code of 1960).

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)
  • Right to access a court
  • Right to an effective remedy before a tribunal
Relevance of CFREU and ECHR articles or related rights
Art. 6 and 13 ECHR have been considered by the Tribunal, even though the ECHR articles were not cited.
Relevant principles applied
  • Effectiveness
  • Proportionality

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
  • Dialogue between high court - lower instance court at national level
Dialogue techniques
The Tribunal applies principals stressed out by Court of Justice in CJEU Case C-199/12 and C-201/12.

Case author

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

Published by Federica De Gottardo on 10 November 2018

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