Firm profile
Firm profile


Europe has common asylum standard: EAW for refugee (Cass. 9821/21)

11 March 2021, Italian Supreme Court

Right to subsidiary protection of defendant  by the Italian state does not an EAW surrender to another European Union country, pursuant to Article 2 of Law No. 69 of April 22, 2005, on the grounds that, there, the surrenderee would not be able to enjoy the same constitutional guarantees on asylum. 

Article 33 of the Geneva Convention Relating to the Protection of Refugees stipulates that the principle of "nonrefoulement" applies only to territories where the life or freedom of the subject would be threatened on account of race, religion, nationality, membership in a social group, political opinion; the status of asylum or international protection granted within the European Union is uniform in nature and valid in all Member States.  

(unofficial mechanical translation)

(date of hearing 10/03/2021) 11/03/2021, no. 9821

pronounced the following:


 On the appeal brought by:

G.K.G., born on (OMISSIS);

against the judgment of 14/01/2021 of the Court of Appeal of Catanzaro.

Having regard to the acts, the contested decision and the appeal;

 Hearing the report delivered by Judge Dr. Gaetano De Amicis;

read the requests of the Public Prosecutor, in the person of Deputy Attorney General Dr. Senatore Vincenzo, who concluded by requesting the dismissal of the appeal.


By judgment of January 14, 2021, the Court of Appeal of Catanzaro ordered the surrender of Iraqi cittadflo G.K.G. alias G.K.G. to the French judicial authority (Bobigny Court) in connection with a trial European arrest warrant issued on November 9, 2020 for the crimes of conspiracy and aiding and abetting illegal immigration committed in (OMISSIS).

In the interest of G.K.G., an appeal in cassation has been lodged alleging, with a first plea, violations of the law and flaws in the reasoning in relation to Law No. 69, Art. 2 and Art. 10 Const. paragraphs 2 and 3 of April 22, 2005, in view of the failure to request the issuing state to provide appropriate guarantees for the protection of the personal safety of the applicant, who has been granted the right of asylum in the Italian system.

In this regard, in particular, we highlight the fact: (a) that before the District Court was produced a copy of the order issued by the Territorial Commission for the Recognition of International Protection of Crotone, which on November 16, 2020 granted the applicant the status of "subsidiary protection"; (b) that the applicant, once delivered to France, could not enjoy, according to the legislation in force there, the same constitutional guarantees (on the subject of the right to asylum) that conversely he was recognized in Italy, so that his delivery appears to have taken place in violation of the cause of impediment provided by the aforementioned provision of Art. 2.

2.1. In a second plea, moreover, the defense invokes violations of law and flaws in the statement of reasons with reference to Article 19, paragraph 1(c), Law cited above, for the failure to make surrender conditional on the appellant being returned to the executing member state to serve there any sentence pronounced against him by the issuing state, the Court of Appeal having failed to assess the fact: (a) that the international protection status has resulted in a relationship of connection with the national territory that makes it possible to disregard the requirement of registry residence, this status being equal to that of Italian citizen by the jurisprudence of legitimacy; b) that the applicant resides permanently in Italian territory, as an asylum seeker, at least since October 2, 2018 - the date of the residence permit issued by the Police Headquarters of Cosenza - and that in Italy he has entered into a lease agreement, with activation of electricity and water utilities at his habitual residence in Rende, where he cohabits permanently with his partner. Circumstances, these, symptomatic of the legal, stable and not extemporaneous presence of the applicant in Italy, with the consequent operativeness towards him of the recalled rules.

2.2. With a third morivo, finally, he complains of the violation of Article 17, paragraph 4, law cit. for the absence of the requirement of serious indicia of guilt, given that the documentation transmitted by the issuing State does not reveal specific sources of evidence suitable for believing the involvement of the applicant in the realization of the criminal activity contested against him.

In an pleas sent to the Registry of this Supreme Court on February 14, 2021, the Attorney General delivered his conclusions, requesting the dismissal of the appeal.

Reasons for the decision

The appeal is unfounded and should be dismissed for the reasons stated below.
 With regard to the first ground raised by the appellant, it must be noted that the principle of nonrefoulement concerns only "territories where his life or liberty would be threatened on account of his race, religion, nationality, membership of a social group or political opinion" (formerly Article 33 of the Geneva Convention Relating to the Protection of Refugees).
 And it cannot be said at all, nor has anything been attached by the appellant in this regard, that France is a country that poses a threat to the life and liberty of the surrendered person by reason of such grounds.

Rather, it must be recalled that within the European Union there is a common asylum system, which includes a uniform asylum status, valid throughout the Union, as well as a uniform subsidiary protection status.

This common European system of asylum and subsidiary protection is based on a procedure in which it is a matter of ascertaining whether or not the person concerned is entitled to refugee status or subsidiary protection status and, if he or she is not entitled to such status, to remove him or her from the territory of the Union, whereas the European arrest warrant is a surrender mechanism that takes effect only within the Union's own territorial area (see Sec. 6, No. 1270, Jan. 12, 2021, Hoshyar).

In present case, moreover, it must be noted, and the District Court itself has punctually taken this into account for the purposes of assessing the persistence of the conditions for maintaining subsidiary protection status, that the relevant recognition measure was deliberated by the competent Territorial Commission of Crotone at the session held on October 7, 2020, therefore without any assessment of the facts of crime emerging from the foreign proceedings subject to the European arrest warrant, which was subsequently issued on November 9, 2020.

Similarly unfounded must be considered the second ground of appeal, given that the evoked connection with the national territory does not translate at all into a rootedness accrued according to the criteria in this regard established by this Supreme Court: in the same time frame in which he is allegedly rooted in Italy, i.e. since October 2018, the appellant appears to have committed the serious crimes that are charged against him in France, on whose territory, on the basis of the detailed information contained in the European arrest warrant, his presence has been continuously ascertained at least since February 2020.

With regard to the verification of the prerequisites for the applicability of the condition of return to Italy provided by Law No. 69, Art. 19, paragraph 1, lett. c), no congruous evidence was produced by the appellant other than that of "dwelling" at the time of his arrest at a dwelling where he lives with his companion, providing for the payment of gas-light supply costs; nor do the acts reveal any symptomatic elements that are concretely appreciable for the purpose here considered, resulting rather in data to the contrary, such as the circumstance of fact that the applicant in the same period of time appears to have been present on French territory to commit there the serious offenses that are charged against him in the measures referred to and attached in support of the request for surrender made by the judicial authorities of the issuing State.

It is worth recalling, in this respect, the constant line of interpretation of this Supreme Court, according to which the notion of "residence" relevant for the purposes of surrender presupposes a real and not extemporaneous rootedness of the person in the State, which can be inferred from a series of revealing indices, such as the legality of the presence in Italy the appreciable temporal continuity and stability of the same, the temporal distance between the latter and the commission of the crime and the conviction achieved abroad, the establishment in Italy of the main and consolidated seat of the working, family and affective interests, and the eventual payment of social security and tax charges (among many others, see Sec. 6, nn 19389 of 06/25/2020, D., Rv. 279419).

Ultimately, the prerequisites for conditioning the surrender, pursuant to Article 19(c), cited above, on the person's return to the territory of the State to serve there the sentence or security measure that may have been imposed do not emerge.

Manifestly unfounded, finally, must be considered the grievance that is the subject of the third plea, which fails to critically confront the punctual arguments made in the appealed judgment as a result of the complete examination of the numerous sources of evidence referred to in the European arrest warrant and in the supplementary documentation transmitted by the requesting Authorities (consisting of stalking, wiretapping and footage extracted from video surveillance cameras), insofar as they are consistently held to be indicative of a circumstantiated reconstruction of the illicit activity put in place by the appellant to facilitate, in the time frame indicated in the indictment, the trafficking of illegal immigration from France to the United Kingdom, playing there a role in directing and coordinating numerous loads of migrants carried out by teams of drivers and traffickers operating under his supervision.

On the basis of the circumstantial compendium fully outlined in the EAW and in the additional documentation sent by the competent authorities of the issuing state, it must therefore be noted that the judgment appealed has made good use of the principles established by this Supreme Court (most recently see Sec. 6, no. 28281 of 06/06/2017, Mazza, Rv. 270415), according to which, for the purposes of the recognizability of the presupposl:o of serious indicia of guilt, the Italian judicial authority must limit itself to verifying that the warrant is, by its intrinsic content or by the elements collected during the investigation, based on a circumstantial compendium that the issuing judicial authority has considered seriously referable to a fact of crime attributable to the person whose surrender is requested, and that it has provided reasons for this - as in fact happened in the case under consideration - in the measure adopted. 

Dismissal of the appeal is followed by an order that the appellant pay court costs pursuant to Article 616 of the Code of Criminal Procedure.

The Clerk's Office will see to the completion of the tasks referred to in Law No. 69 of 2005, art. 22, paragraph 5.


Dismisses the appeal and orders the appellant to pay the court costs.


Directs the Clerk's Office to carry out the duties set forth in Law No. 69 of 2005, Article 22, Paragraph 5.

decided in Rome, March 10, 2021.

Filed in the Registry on March 11, 2021.