Procedural Posture
Appeal to the Supreme Court of Cassation against the decision of the Court of Appeal denying the claimant’s application for refugee status. Both the Court of First Instance (Tribunale di Trieste) and the Court of Appeal of Trieste had rejected the claim for refugee status as well as the claims for subsidiary protection or a residence permit.
Facts
The claimant, a Senegalese citizen, sought asylum on the basis of his sexual orientation. He said that as a gay man he could not live freely in his own country, which criminalises homosexuality, and that he faced a hostile familial and social environment. The Court of First Instance and the Court of Appeal rejected his claim.
Issue
Whether the existence of laws criminalizing homosexuality in the country of origin is a valid reason for granting international protection
Domestic Law
Legislative Decree n. 251/2007, Article 3 (transposing the EU Qualification Directive 2004/83/EC).
Legislative Decree n. 25/2008, Article 8 (transposing the EU Procedure Directive 2005/85/EC).
No. 16417, Italy Supreme Court of Cassation, 2007 (clarifying that persecution should be considered a radical fight against a minority which can also be realised through legal means).
No. 26822, Italy Supreme Court of Cassation, 2007 (whether from the general country situation can be inferred that an individual is victim of persecution).
No. 27310, Italy Supreme Court of Cassation, 2008 (on the instruction and examination of a demand for international protection.)
Reasoning of the Court
The Supreme Court of Cassation (“Supreme Court”) considered two grounds of appeal against the judgment of the Court of Appeal. It considered the first objection preliminary to the second one.
The first ground of appeal criticised the Court of Appeal’s position that it was not possible to infer from the general situation of a country that an individual was a victim of persecution. The Court of Appeal held that even if it could be proven that the applicant was homosexual, it had not been proven that the applicant had been the victim of tangible acts of violence or threats by the Senegalese government that had forced him to leave the country.
According to the Supreme Court, however, the fact that the Senegalese Penal Code criminalises homosexual acts with penalties up to 5 years of imprisonment constituted a per se deprivation of the fundamental right to live freely one’s sexual and emotional life. Consequently, homosexuals were forced to violate the Senegalese criminal law, exposing themselves to severe penalties if they wanted to live their emotional and sexual life freely. The Court held that was a violation of the right to private life, embedded in the Italian Constitution, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the EU Charter on Fundamental Rights. The criminal law placed homosexuals in a situation of objective persecution, and this justified the grant of protection.
Quoting its 2007 judgment, the Court stated: “Persecution is considered to be a form of radical fight against a minority which can also be realized through legal means and especially through the provision that the behaviour is intended to be fought as a crime punishable by imprisonment.”
Regarding the second ground of appeal, the applicant contended that the Court of Appeal misinterpreted Legislative Decrees no. 251/2007 and no. 25/2008 (transposing the European Qualification and Procedure Directives into Italian law) when it did not admit evidence of his homosexuality before the court. The Court of Appeal also did not investigate the actual legal and social conditions in Senegal. The Supreme Court agreed and found a violation of both Italian and EU law. According to the Supreme Court, the Court of Appeal was in error when it did not hear evidence concerning the homosexuality of the applicant, based on its incorrect consideration of the consequences of the Senegalese Penal Code.
The Supreme Court granted the appeal and sent the case back to the Court of Appeal of Trieste in order to hear evidence concerning the sexual orientation of the applicant, the legal situation in Senegal, and conditions for homosexuals in Senegalese society, in accordance with the criteria of EU law and Italian law regarding the instruction and examination of a claim for international protection.
The criminalization of same-sex sexual conduct in Senegal was per se considered to be a serious and unlawful interference with private life and severely compromises individual freedom. It putted the homosexual in an objective situation of persecution, which justified granting protection.
Order 15981/12, Supreme Court of Cassation, Italy (20 September 2012), (Full text of judgment in Italian, PDF)