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Italian Jurisprudence on immigration and humanitarian protection (update Oct. 2021)

Court of Cassation section III Civil No. 20749/2021

With judgment no. 628/2019, the Court of Appeal of Ancona had rejected, at the time of resumption, the appeal with which one of the victims of the massacre carried out by Luca Traini in the city of Macerata, had "claimed" the right to humanitarian protection.

The trial judge had, in fact, excluded that the appellant, who had been hit by the gunshots fired by Traini, could have suffered, as a consequence of the serious bloodshed, a condition of vulnerability such as to justify the requested protection.

According to the judge, the "act of racial intolerance" perpetrated by Traini "remained circumscribed and isolated (as well as widely condemned by Italian civil society), which as such cannot, in itself, have created in the victim the conditions of a stable and irredeemable vulnerability deserving of humanitarian protection". The Court of Appeal, in the same judgment, had also considered the appeal "manifestly unfounded" and, for this reason, had revoked the applicant's admission to legal aid.

Following an examination, the Court of Cassation, by order no. 20749/2021, ordered its annulment.".

Court of Venice, decree of 11 October 2021

The judge of merit recognised the right to the issue of a residence permit for special protection to a Togolese citizen.

In particular, the trial judge noted that "in the present case, the expulsion from the national territory of the applicant would certainly entail, for the reasons stated, a violation of his right to respect for his private and family life".

On the other hand, those previously referred to in paragraph 1.1. of art. On the other hand, those previously mentioned in Art. 19, par. 1.1, are parameters for the assessment of the existence of well-founded reasons to believe that the removal from the national territory entails a violation of that right; they represent a sort of codification of the elements that were developed by the jurisprudence to identify and substantiate the general provision of humanitarian protection and, like all the parameters, they are predetermined indicators of the risk situation ("for the purposes of the assessment ..., account shall be taken"). ) predetermined by the legislator, without the absence of one or more of these indicators necessarily implying an automaticity of the decision, which must always be referred to an overall assessment of the subjective situation of the asylum seeker. (...)

Court of Venice, decree of 9 September 2021

The Court of Venice granted subsidiary protection to a Pakistani applicant from Kashmir following a reassessment of the socio-political situation of the country. The Territorial Commission of Padua had declared inadmissible the reiterated request for international protection, as according to the C.T. it was devoid of new elements after a first rejection measure of 30.7.2015. For the purposes of the appeal, the appellant stated that the Commission had not adequately reassessed his personal situation and the political and social situation in his country of origin, characterised by widespread violence, violation of fundamental human rights and terrorist attacks.

The Court considering the main COI on the applicant's area of origin writes:

"(... ) In the light of the indicators drawn from the case law of the Court of Justice of the European Union and the European Court of Human Rights (in particular: the parties to the conflict and their respective military strengths, the methods and tactics of warfare applied, the type of weapons used; the geographical scope of the fighting; the number of civilians killed, wounded and displaced as a result of the fighting; the ability or inability of the State to protect its citizens against violence; the socio-economic conditions; and the cumulative effects of long-lasting armed conflict) and their application to the factual situation as reconstructed by this Court in the light of the information consulted, a situation of indiscriminate violence caused by a situation of armed conflict, at least international, must be deemed to exist in Azad Kashmir, the applicant's area of origin, within the meaning of Art. 14 lett. c), D.lgs. 251/07, such that there are reasonable grounds to believe that, if he returned to his country of origin, the applicant would face a serious threat to his life or person".

Prof. Avv. Paolo Iafrate

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