Accelerated procedure

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General (scope, grounds for accelerated procedures, time limits)

Article 28-bis of the Procedure Decree, entirely amended by Decree Law 130/2020, implemented by L 173/2020, provides for different accelerated procedures that foresee different time limits following the immediate transmission of the file from the Questura to the Territorial Commission, depending on the applicable ground:

5-day procedure: The Territorial Commission takes a decision within 5 days of the receipt of the file where:^[1]

1. The applicant makes a Subsequent Application without presenting new elements.^[2]In this case an audition can be omitted.
2. The asylum application is made by a person under investigation for some of the crimes preventing the recognition of international protection pursuant to Article 12 (1, c) and 16 (1, d bis) of the Qualifications Decree,^[3] when grounds for detention raise among those provided by Article 6 (2, a, b, c) of the Reception Decree,^[4] or by a person convicted – even not definitively – for one of those crimes. In this case the applicant must be heard.

9-day procedure: The Territorial Commission takes steps to organise the personal interview within 7 days of receipt of the file and decides within the 2 following days where:^[5]

3. The asylum application is made by a person detained in a CPR or in a hotspot or first reception centre;^[6]
4. The asylum application is made at the border or in transit areas and is subject to the Border Procedure, i.e. following apprehension for evading or attempting to evade border controls;
5. The applicant comes from a Safe Country of Origin;^[7]
6. The application is manifestly unfounded.^[8] (see Regular Procedure: General);
7. The applicant made an application after being apprehended for irregular stay, with the sole purpose to delay or frustrate the issuance or enforcement of a removal order.

Regarding the accelerated procedure for persons investigated or convicted for some crimes which may trigger to the exclusion of international protection, some issues of consistency can be observed, as already underlined regarding the old Article 32 (1 -bis) of the Procedure Decree, now repealed: the procedure reserves a lesser treatment to persons not yet sentenced, contrary to the principle of innocence set out in Article 27 of the Italian Constitution. Furthermore, after the extension already made with the Decree Law 113/2018 and confirmed by the Decree Law 130/2020, the group of crimes that can lead to the exclusion of international protection also includes minor offences that do not seem to be a danger to public order and state security. In this sense the provision also seems incompatible with the recast Asylum Procedures Directive, Article 31(8) according to which an accelerated procedure can be applied to people considered dangerous for the public order according to the domestic law.

Regarding the accelerate border procedure, as mentioned (see Border procedure) the requirement of Article 43 of the Directive to allow the applicant to enter the territory if the determining authority has not taken a decision within 4 weeks has not been incorporated in the Procedure Decree even after the amendments made by Decree Law 130/2020.

Furthermore, the manner in which the provision is worded could allow for the automatic application of the accelerated border procedure to persons seeking asylum at the border as it makes its application solely contingent on the person having tried to evade controls. In this sense the provision does not comply with Article 43 the Asylum Procedures Directive, as the attempt to evade border controls is not included in the acceleration grounds laid down in Article 31(8) of the Directive which could lead to the application of a border procedure.

According to Article 28-bis(5) of the Procedure Decree, the Territorial Commission may exceed the above-mentioned time limits where necessary to ensure an adequate and complete examination of the asylum application, subject to a maximum time limit of 18 months.^[9] Where the application is made by the applicant detained in CPR or a hotspot or first reception centre, or by a person committed or investigated for crimes allowing the 5 days procedure, the maximum duration of the procedure cannot exceed 6 months.^[10]

According to Article 28-bis (6) of the Procedure Decree, the accelerated procedure does not apply to unaccompanied minors and to people with special needs: in this regard, the rule refers to Article 17 of the Reception Decree which, while distinguishing people with special needs in the context of vulnerable people, does not provide an exact definition of this category. It therefore seems reasonable to extend the exclusion from the accelerated procedure to the entire category of vulnerable people.

The law does not clarify whether the procedure can be declared accelerated even if the time limits set out in the law have not been respected.

On this topic, the Civil Court of Florence, by decision issued on 30 March 2023, decided that failure to comply with the terms of the accelerated procedure (concluded in that case in 20 days instead of 9) would cause the effects connected to this procedure to lapse, with the consequence that the appeal became automatically suspensive.^[11]

Personal interview

The same guarantees are those applied during the Regular Procedure: Personal Interview are applied.

Appeal

The time limits for appealing a negative decision depend on the type of accelerated procedure applied by the Territorial Commission:

The time limits for appealing a negative decision under Article 35-bis(2) and 35-ter and corresponding provisions of the Procedure Decree raise issues of consistency following the 2018 , the 2020 and 2023 reform.

The Court of Cassation, with Decision no. 18518 of 30 June 2021,^[13] ruled that the time limit of 15 days to appeal is applicable only in case the accelerated procedure was actually applied. The Court clarified that the subsistence of the legal grounds to apply the accelerated procedure is not – by itself – sufficient to apply the 15 days’ time limit if the accelerated procedure was not applied in practice, and a decision on the merits was issued after an ordinary procedure. In its most recent decision on the issue (no. 26670/22 of 9 September 2022),^[14] the Court of Cassation confirmed that the decision of the manifest unfoundedness can be considered adopted on the basis of an accelerated procedure only when the President of the competent Territorial Commission has decided in this sense and consequently the procedure has respected the terms of art. 28 bis, Decree n. 25/2008, because the peculiar qualification of the procedure as “accelerated” cannot derive from the mere formula of manifest unfoundedness contained in the decision of the Commission to reject the application. Just in case of declaration adopted by the President of Territorial Commission and respect of terms there will be fifteen days for appealing against the decision, while in all the other cases we will have ordinary term under penalty of violation of the right of defence of the applicant, who has the right to know in advance the procedural model with which his application will be examined.

Accordingly, in 2022, the Civil Court of Bologna^[15] and the Civil Court of Naples^[16] established in two cases that, since the competent Territorial Commission had not respected the terms of the accelerated procedure, the procedure to apply in the cases at hand was the regular one.

Interestingly, the last case was related to an asylum application submitted by a Ukrainian asylum seeker, which was rejected in 2021 and notified after more than one year not taking into account the changed situation in Ukraine.

The automatic suspensive effect of the appeal depends on the ground for applying the accelerated procedure.^[17] The appeal in the accelerated procedure generally has no automatic suspensive effect, except for applications subject to the Border Procedure.

Legal assistance

The same rules apply as under the Regular procedure.

^[1] Article 28-bis(1) Procedure Decree, as amended by Decree Law 130/2020

^[2] The law refers to the subsequent application ruled by Article 29 (1 b) Procedure Decree, meaning the case where the applicant submits identical asylum request after a decision has been taken without adding new elements.

^[3] This provision resumes the case before ruled by Article 32 (1 bis) of the Procedure Decree, the so-called immediate procedure, now repealed by Decree Law 130/2020 and L 173/2020.

^[4] If the person is only investigated the law requires that also those grounds for detention arise. The law only recalls those grounds not requesting that the person is in concrete detained.

^[5] Article 28 bis (2) as amended by Decree Law 130/2020 and L 173/2020.

^[6] In this case, when the person is under investigation or conviction for the offenses referred to in Article 28 bis (1) Procedure Decree, this 5-day procedure applies.

^[7] In this case the law, as amended by Decree Law 130/2020, does no longer provide that the procedure can be done at the border or in transit areas.

^[8] Pursuant to Article 28 ter Procedure Decree.

^[9] Article 28-bis(5) Procedure Decree, citing Article 27(3)-(3-bis).

^[10] Ibid.

^[11] Civil Court of Florence, decision of 30 March 2023.

^[12] Article 35 bis Procedure Decree as amended by Decree Law 130/2020 and L 173/2020.

^[13] Sentenza Cassazione Civile n. 18518, 30 June 2021, available in Italian at: https://bit.ly/3P0hmuy.

^[14] Sentenza Cassazione Civile n. 26670, 9 September 2022; in the same sense Sentenza Cassazione Civile 6745, 10 March 2021, Sentenza Cassazione Civile n. 7520, 25 March 2020, Sentenza Cassazione Civile 23021 del 21 October 2020.

^[15] Civil Court of Bologna, decree of 15 September 2022, available at: bit.ly/3Z7w7PK.  

^[16] Civil Court of Naples, decree of 18 November 2022, available at: bit.ly/3JE1eNa.

^[17] Article 35-bis(3) Procedure Decree, as amended by Decree Law 130/2020 and L 173/2020.