In decision n° 252.294, the Council of State, following the case law of the European Court of Human Rights, referred back the case to the Council of Alien Law Litigation for further investigation, recalling that asylum authorities have the duty to seek the causes of the scars and injuries attested by a medical certificate, unless it is impossible to carry out such an investigation. Indeed, past ill-treatments represent key indicators for assessing the risk of such a treatment in the future. Conversely, the applicant has the obligation to cooperate with the asylum authorities so that such investigation can take place. This comment reflects on the issues raised by the use of medical certificates in asylum cases, their probative value and the challenges in field practice.
C.C.E., 30 avril 2021, n° 253.776 – Procédure d’asile : aptitude probatoire et conditions de vie dans le pays d’accueil.
Si le risque de persécution est apprécié par rapport à la situation dans le pays d’origine, la situation dans le pays d’accueil peut témoigner d’un risque dans le pays d’origine mais aussi affecter l’aptitude probatoire d’une demanderesse vulnérable.
Court of cassation (Italy), II Civil Chamber sent. 12 November 2020 – 24 February 2021, no 5022 – “The ineliminable core constituting the base of personal dignity”: the road-map for the protection of people fleeing the effects of climate change?
In the ordinance no. 5022/2021, the Italian Court of Cassation has established the principle of law that trial judges should follow whilst evaluating the presence of serious threats in cases of repatriation to the country of origin, and the consequent vulnerability, that legitimates the need for humanitarian protection. Starting from the principles affirmed by the United Nations Human Rights Committee in the renowned case Ioane Teitiota v. New Zealand, the Court of Cassation establishes that “the ineliminable core constituting the base of personal dignity” represents the basic limit below which the right to life and the right to decent living conditions are not ensured. This limit must not be passed in the case of armed conflict as well as when there is a context that in concreto puts at risk of being breached (or going below the above-mentioned minimum threshold) the fundamental right to life and the paramount principles of freedom and self-determination, including situations of social, environmental or climate degradations, climate changes or the unsustainable exploitation of natural resources.
European Court of Human Rights, case of A.S.N. and others v. The Netherlands (Applications n° 68377/17 and 530/18) – Removal of Sikh families to Afghanistan: Religious Minority and Ill-Treatment Risk Assessment.
In the A.S.N. and Others v. The Netherlands case, the ECtHR held that there would be no violation of Article 3 in case of removal of families belonging to the Sikh religious minority to Afghanistan. Despite the fact that the size of the Sikh community in the country is shrinking to few thousands because of their systematic exposure to discrimination with regard to employment and political representation and, more generally, to intimidation and intolerance within the Afghan society, the Strasbourg judges held that the applicants failed to reach the severity threshold in order to fall within the scope of Article 3. Therefore, the ECtHR saw no ground to depart from the conclusion reached by the Dutch authorities who retained that, even though the applicants belong to a “vulnerable minority group”, they had failed to make plausible their fear of ill-treatments upon return to Afghanistan.
Cahiers de l'EDEM 