Right of asylum in Italy
The right of political asylum finds in Italy its constitutional foundation in article 10 of the Constitution, which in par. 3 states: "A foreigner who is effectively prevented from exercising the democratic freedoms guaranteed by the Italian Constitution in his own country has the right to asylum in the territory of the Republic under the conditions laid down by law".
These "conditions" are specified in D. Lgs. 251/2007 (which is a transposition of the European Directive 2004/83, "Qualification Directive") and 25/2008 (transposing the European Directive 2005/85, “Procedures Directive”) establishing international protection, divided in recognition of refugee status and subsidiary protection.
The definition of "refugee" is still contained in the 1951 Geneva Convention, ratified and enforced in Italy by L. 772/1954.
Specifically, article 1, letter A of this Convention defines refugee as a person "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.
On the basis of this definition, D. Lgs. 251/2007, article 7, par. 2, specifies the characteristics – type, motivation and gravity – of the acts of persecution relevant to the recognition of the refugee status, including, by way of example, acts of physical or psychological violence; legislative, administrative, police or judicial discriminatory actions; judicial or criminal penalties which are disproportionate or discriminatory; judicial actions or criminal penalties resulting from the refusal to perform military service; actions specifically directed against a sex or childhood.
Finally, pursuant to article 8, par. 1, for the purpose of recognition of refugee status, the performance of such acts must be attributable to reasons of race, religion, nationality, membership of a particular social group or political opinion.
D. Lgs. 251/2007 provides, in addition to the refugee status, subsidiary protection falling within the category of international protection for "a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin (…), would face a real risk of suffering serious harm” (article 2, g), D. Lgs. 251/2007).
According to article 14, D. Lgs. 251/2007, the definition of serious harm includes: "a) death penalty or execution; b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.
If the application for international protection is denied, article 32, par. 3, D. Lgs. 25/2008 provides that the Administration may still invite the competent Questura to issue a special humanitarian permit (“humanitarian protection”) issued pursuant to article 5, c. 6, D. Lgs. 286/1998.
The scope of this rule is broad: humanitarian needs are linked to serious health problems, protection of minors, and – according to the teachings of the Corte di Cassazione in Judgment no. 22111/2014 – needs related to situations of vulnerability or of temporary nature "to be protected in the light of the constitutional and international obligations imposed on the Italian State".