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Persecution on grounds of sexual orientation: no to stereotyped notions (Italian Cass. 30390/2021)

Persecution on grounds of sexual orientation and assessment of credibility: the Court reiterates that it does not rely on stereotyped notions.

The applicant, a Nigerian citizen, stated that he had been forced to leave the country for fear of being persecuted as a homosexual. The Court of Appeal of Bari deemed his account unreliable.

The Court of Cassation held that the applicant's sexual orientation (in this case, homosexuality) is a factor for identifying the "particular social group" whose membership, according to Art. 8, par. 1, letter d) of Legislative Decree no. 251 of 2007, constitutes a reason for persecution capable of justifying the recognition of refugee status, even if it is raised for the first time only before the court. (Sez. 6 - 1, no. 27437 of 29/12/2016). Moreover, the first paragraph of Article 19 of Legislative Decree no. 286/1998 prohibits expulsion or refoulement to a State where the foreigner may be subject to persecution also for reasons of sexual orientation.

The Supreme Court has reiterated that persecution is to be understood as a form of radical struggle against a minority which can also be implemented on a legal level and specifically by simply envisaging the behaviour that is intended to be opposed as a crime punishable by imprisonment; Such a situation arises when persons with a homosexual orientation are forced to violate the criminal law of their country and expose themselves to severe penalties in order to be able to live their sexuality freely, so that it may well be considered that this constitutes a serious interference with the private life of citizens which greatly compromises their personal freedom. This violation automatically reflects on the individual condition of homosexual persons, placing them in an objective situation of persecution, which must be verified, even ex officio, by the judge of merit, and which is such as to justify the granting of protection (Sez. 6 - 1, no. 15981 of 20/09/2012; Sez. 1, no. 07438/2020).

The allegation by the foreigner of his homosexual condition requires the judge to take a dynamic and not a static approach (Sect. 1, no. 09815/2020, cit.), in the sense that he has the duty to ascertain whether the State of origin cannot or will not offer adequate protection to homosexuals, pursuant to Art. 5, lett. c), Legislative Decree no. 251 of 2007. No. 251 of 2007, and therefore whether, considering the concrete situation of the applicant and his particular personal condition, he may suffer, because of his sexual orientation, pursuant to art. 8, lett. d), No. 251 of 2007, a serious and individual threat to his life or person (Sez. 1, no. 11172/2020; see also Sez. 1, no. 11176/2019).

In the present case, the Supreme Court held that the Court of Merit, on the one hand, in its assessment of the credibility of the applicant's statements, failed to follow the cogent rules of proceduralisation set out in Article 3(5) of Legislative Decree no. 251 of 2007 (see. Cass. 26921/2017,) relying, moreover on such a sensitive area as sexual orientation, on indices of improbability linked to secondary or detailed aspects or to stereotyped notions associated with homosexuality as experienced in the national context (see. On the other hand, and as a consequence of the judgment of non-credibility, it omitted any investigation into the risk of persecution for reasons related to homosexuality in the country of origin, as would have been the duty to cooperate in the investigation.

Prof. Avv. Paolo Iafrate

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