The Law and Nomofiliachia

Francesco Martin
Current Events

«Remota itaque iustitia quid sunt regna nisi magna latrocinia?»

The issue of gender – which especially in recent years for various reasons – has made the headlines (it was just a few weeks ago that the bill “Measures to prevent and fight discrimination and violence for reasons based on their sex, gender, sexual orientation, gender identity and disability”, the so called DDLZAN, was proposed again in the Senate of Italy), has also found its way into the courtrooms.

The relationship between gender identities, profiles of possible discrimination and persecution as well as all corollaries related to the execution phase of the sentence is of particular interest.

On these issues, of primary importance, the Italian Court of Cassation was recently asked to rule on the conformity of an expulsion order issued by the Supervisory Magistrate, as the competent body for non-EU detainees to be expelled from the State, and then appealed by the person in question before the Supervisory Court.

In particular, the applicant had pointed out that their transgender status subjected them to persecution in their country of origin, thus the deportation order was to be denied.

The Court’s statement of reasons for rejection points out that there are no grounds for refusal provided by Article 19 of Legislative Decree no. 286 of 25 July 1998, which states that: “In no case may there be an order of expulsion or rejection to a State where the foreigner may be subject to persecution for reasons of race, sex, sexual orientation, gender identity, language, nationality, religion, political opinion, personal or social conditions, or may risk being resent to another State where there is no protection from persecution”.

In denying the objection, the Court notes that the legislation of the subject’s State of origin does not contemplate discrimination arising from an individual’s sexual orientation; if anything in 2017 a new legislation reaffirmed the freedom of individual choice.

However, the risk of persecution deriving from the prevalent homophobic culture in that State would not fall within the application of Article 19 of Legislative Decree 286/1998, which assumes its connection with legal measures or systematic violations of human rights by public authorities and not by individuals, even if they are included in the ranks of public institutions.

On closer inspection, this interpretation is not ontologically wrong, since it is literally based on the rule, which by law, as pointed out, only takes into consideration cases in which there is a law of a State that discriminates or persecutes.

The reasons carried out by the Supreme Court, the essential stages illustrated below, are characterised precisely by the task entrusted exclusively to it: nomofilachia, i.e. the task of ensuring compliance with the law and its uniform interpretation.

The Supreme Court of Cassation, in assessing the circumstances hindering the expulsion order, makes reference to some previous judgments – with reference to the Legislative Decree no. 251 of 19 November 2007, which implemented, in domestic law, the Directive 2004/83/EC – concerning minimum standards on the qualification and status of third country nationals or stateless persons as refugees or as persons otherwise in need of international protection, as well as minimum standards on the content of the protection granted.

In particular, the Court’s reasoning, drawing from the normative datum and from some previous judgments, points out that: “On the subject of international protection, recognition of refugee status or subsidiary protection cannot be denied solely because those responsible for the serious harm to the foreign national are private individuals, if there is no State authority in the country of origin capable of providing the latter with adequate and effective protection, it is hence the duty of the Court to carry out an unofficial verification of the current situation in that country and, therefore, of the possible futility of a request for protection to the local authorities”.

Therefore, the legitimacy of lawfulness has made an interpretation that is not strictly worded in Article 19 of Legislative Decree no. 286/1998, but takes into consideration the possible practical implications that go beyond the mere normative datum and also concerns the social, cultural and historical fabric in which the subject, recipient of an expulsion order, should reintegrate.

What ultimately cannot be overlooked, and which if not considered and adequately valued by the interpreter would in fact lead to a misrepresentation of the causes preventing expulsion from the territory, is not only the fact that a person must not be subjected to persecution by the State to which they are expelled, by means of rules that punish their unlawful conduct, but also that in the same territory they must not be subjected to persecution resulting from the conduct of private individuals, when there is no adequate protection by the local police forces.

Consequently, by annulling the order of the Supervisory Court, the Court of Cassation has placed the human being at the centre of the issue, giving a practical interpretation and well interpreting its role as guardian of the rule, in the absence of which the ratio of the rule itself would have failed, i.e. to prevent a subject from being persecuted not only by the law of the State, but also by the social and cultural fabric in which they fit.

St. Augustine’s phrase (De Civitate Dei, chap. IV, 4) still seems to be relevant today: “Remota itaque iustitia quid sunt regna nisi magna latrocinia? [Denied justice, what would states be if not great gangs of thieves?]”.

[1] Cass. Pen., Sez. I, 21 aprile 2022, n. 15600.

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