The first instance authority in Italy is the Commissione Centrale per il Riconoscimento dello Status di Rifugiato (The Central Commission for the Eligibility of Refugee Status). This is an independent administrative body. After the sentence n. 7224 dated 08.10.1999 by the Supreme Court (Corte Suprema di Cassazione) negative decisions by the Central Commission may be appealed to the Civil Court, instead of the Regional Administrative Court. No provisions are available for free or low-cost legal representation to asylum seekers in the judicial procedure of the appeal.
Another opportunity offered to asylum seekers is to apply for constitutional asylum. In the famous Ocalan case, for the first time in Italy, the Civil Court of Rome gave official recognition to the right of asylum, provided for in Art.10, Paragraph 3 of the Italian Constitution ("the foreigner, who is prevented from exercising the democratic liberties guaranteed by the Italian Constitution in his/her country, has the right to asylum in the territory of the Italian Republic according to the conditions established by law."). This Civil Court sentence thus confirmed the immediately operative, and not the merely programmatic, nature of the constitutional norm on asylum. It also substantiated the distinction between the notion of constitutional asylum and that of refugee extracted from the Geneva Convention of 1951: the former defined by objective criteria (the lack of democratic liberties in the country of origin), the latter containing subjective presumptions (individual fear based on individual persecution).
The complete implementation of the constitution principle of asylum is contained in the proposed law for the reform of the right to asylum and temporary protection in Italy, which has been moving through parliamentary procedures for the last three years.
It is difficult to establish what the Italian approach to the issue of non/state agents of persecution is as there is no significant case law on the refugee definition. The decisions of the Central Commission are not public and it is possible to obtain individual decisions without the permission of the persons concerned. Furthermore, the reasoning of the Central Commission in its decisions is generic and does not relate to the individual facts of the specific case.
Moreover, a certain incoherence may be noticed in the decisions of the Central Commission due to the fact that the Commission is divided in different Sub-Commissions according to the geographic provenance of asylum seekers.
There is some evidence to suggest that the Italian authorities interpret "persecution" as action by state authorities or action tolerated by state authorities. As a consequence, asylum seekers fleeing civil war are rarely recognised as refugees, but the Commission recommends for them the release of a permit of stay on humanitarian grounds according to the principle of "non refoulement", contained in the Aliens Act (art. 5 c. 6 Law Decree n. 286/98). To succeed as a Convention refugee an asylum applicant must show that he/she is differentiated from other groups suffering from the civil war.
However, according to the UNHCR Delegation for Italy, whose representative attends the meeting of the Central Commission on an advisory basis, in the last two years the Central Commission showed a wider and more liberal approach towards asylum seekers fleeing from Non-State Agents of persecution. Also some Algerian asylum seekers fled because of fear of persecution from Islamic terrorists were recognised as refugees under Geneva Convention.
Also the jurisprudence by the Courts is not coherent as the following three cases can illustrate:
Regional Administrative Tribunal of Friuli Venezia Giulia, case no. 740/96 ( relating to application n. 532/95)
The appeal against the denial of refugee status by the Central Commission for Eligibility of Refugee Status, is based upon, inter alia , the fact that the Central Commission did not take into account the risks faced by the applicant at the hands of Islamic groups.
The Tribunal nevertheless held that the 1951 Geneva Convention definition of a refugee requires the presence of persecution by the authorities of the State of the applicant. This part of the appeal was rejected on the grounds that the applicant had not claimed persecution by the state authorities in Algeria and, therefore, the first instance authority's decision was legally correct.
Council of State, 3976/94, 12 April 1994
The facts of the case are not re-produced in the decision by the Council of State.
However, from the reasons given for the appeal, it can be deduced that the case involves an applicant of Algerian nationality who alleges persecution by the FIS and further alleges that the state authorities are unable to protect its citizens.
The Council of State held that the appeal was unfounded. The Council of State found that the applicant had not shown that he/she was at any greater risk of persecution than the rest of the population and therefore, his/her flight from the country was disproportionate. Furthermore, the persecution did not emanate from the Government which did provide protection to its citizens.
If there is no national government, or if the control of the national government is disputed, the asylum application is normally rejected. There is one known case, in which a Liberian applicant has been recognised as a refugee due to the instability in Liberia. However, applications for asylum concerning countries in civil war are normally rejected unless the applicant can demonstrate that s/he was at greater risk than the rest of the population. Applicants may instead request a temporary residence permit on humanitarian grounds.
Regional Administrative Court (T.A.R.) of Friuli Venezia Giulia
22 October 1998 - Rwanda minor vs The Central Commission for the recognition of refugee status.
In this sentence the T.A.R. of the Italian Region of Friuli Venezia Giulia overturned its previous position concerning the definition of "agents of persecution" in evaluating legitimacy to the application for recognition of refugee status presented by a Rwanda minor. Explicitly referring to Paragraph 65 of the Manual on Procedures and the Criteria for the Determination of the Status of Refugee, published by the UNHCR, the T.A.R. claimed "that persecution is to be intended also as the lack or inability of a government to protect the human rights of its inhabitants; this inability can also be intended as the lack of the will to protect them."