Judicial procedures
Case of Porta Portese
Following several reports of discriminatory advertisements published in the well-known local periodical Porta Portese between 2006 and 2007, in which landlords and employers expressly excluded immigrants, people of color and foreigners from their offers, the Unione forense per la tutela dei diritti umani started an anti-discrimination action to denounce the above-mentioned collective discriminations. The national courts, however, rejected the domestic appeals, ruling out any kind of responsibility on the part of the editor of the periodical and considering that there was no violation of criminal law since the advertisements in question constituted “mere proposals for a contract” expressing the “freedom of negotiation on the part of the person from whom they came”. As a result, the Unione appealed to the European Court in 2012, when it complained of the violation of the rules of the European Convention on Human Rights relating to the prohibition of discrimination and respect for the private social rights of citizens of color or non-EU origin residing in Italy, whom the advertisers had unreasonably prevented from accessing housing or employment.
On July 6, 2020, the Strasbourg Court notified the Italian government of the appeal Unione forense per la tutela dei diritti umani v. Italy with the objective of ascertaining the discriminatory content of the ads and advertisements published in the periodical. In particular, the Court aimed to verify the existence a violation of the rules of the European Convention on Human Rights relating to the prohibition of discrimination and respect for the private social life of citizens of color or non-EU origin residing in Italy, whom the advertisers had unreasonably prevented from accessing housing or employment.
After almost fourteen years since the beginning of the affair, a glimmer of hope is opening up so that justice can finally be done for all those who have been discriminated against by those ads. It is extremely serious that the Italian State can allow a periodical to publish discriminatory statements such as “no black people” or “only Italian students/workers”.
The case is pending before the Court and the Italian government has been invited to submit written comments on the matter.
Case of Oliari and others v. Italy
In its judgment of 21 July 2015, the European Court of Human Rights found that Italy had violated Article 8 of the ECHR for failing to adopt legislation aimed at the recognition and protection of same-sex civil uniones.
In the case of Oliari and Others v. Italy the applicants were three homosexual couples who complained of being discriminated against, in the enjoyment of human rights guaranteed by the Convention, on the basis of their sexual orientation. In particular, the grievances concerned the refusal of the Italian authorities to register their marriage contracted abroad and, more generally, the impossibility of obtaining formal recognition of their relationship, since Italian law does not allow either marriage between persons of the same sex or the conclusion of any other type of civil unione that could give legal value to such a bond. The applicants challenged the violation of Article 8 (right to respect for private and family life), Article 12 (right to marry) and Article 14 (prohibition of discrimination) of the ECHR, the latter in conjunction with Articles 8 and 12.
The Unione forense was authorized, together with five other NGOs of the FIDH network, to take part as a third intervener in the pending proceedings, to which it contributed by providing a brief with a comparative approach to the protection of human rights in cases of sexual discrimination.
The Strasbourg Court, on the one hand, concluded that there had been no violation of Article 12, since this provision does not impose on States the obligation to ensure to same-sex couples the possibility of access to marriage; on the other hand, it recognized the violation of Article 8 since Italy does not provide sufficient tools to ensure adequate legal recognition to same-sex couples, ignoring the indications in this sense of the Constitutional Court and the Court of Cassation.
Case of Iseni
On September 2, 2015, the sentence of the Ordinary Court of Rome was published which, after a wait of twenty years, granted Italian citizenship to Roberto Iseni, a stateless person of Roma ethnicity born in Italy.
Roberto Iseni, born in Italy on October 11, 1987 to a Croatian mother and a Serbian father, was abandoned at birth due to his disabilities. The Unione forense, as part of a project funded by the Open Society Justice Initiative, became a third party in the lawsuit filed by Mr. Iseni to obtain stateless status. Once this result was achieved, an application was made for the recognition of the Italian citizenship of Mr. Iseni on the basis of law 91/1992, according to which the foreigner or stateless person, born in Italy and resident there since birth, has one year from the age of 18 to submit the declaration of intent to obtain the Italian nationality. Mr. Iseni’s request was not accepted only because it was submitted after the time limit provided for by law. The lawyers of the Unione forense, therefore, brought an action before the Court of Rome contesting the fact that such delay was attributable to the applicant and attributing the responsibility to the public administration that should have assisted him in such a procedure.
The Court of Rome adopted the views of lawyers Lana and Saccucci, recognizing the Italian citizenship to Mr. Iseni. It is hoped that this important result reached by the jurisprudence will push the Italian legislator to modify the current legislation on citizenship in the sense of the recognition of ius soli.
Case of Smaltini v. Italy
The Unione forense intervened in the case concerning the death caused by Ilva’s dangerous emissions.
The UFDU intervened before the European Court of Human Rights as a third party in the case Smaltini v. Italy (appeal no. 43961/09). The appeal was filed by Ms. Smaltini (deceased in 2012) and her family in August 2009.
Circumstances of the case: on September 12, 2006 Ms. Smaltini was diagnosed with leukemia, which was followed by hospitalization. On November 13, 2006 the plaintiff filed a complaint with the Public Prosecutor’s Office of Taranto, claiming that the pollution caused by the Ilva steel plant, located in the city of Taranto, was the cause of her illness. The Public Prosecutor decided to dismiss the case, as did the trial judge. The judge observed that, even in the light of the further investigations carried out on the circumstances of the case, the causal link between the plaintiff’s illness and the pollution produced by the factory could not be proved with a sufficient degree of certainty.
Having exhausted all levels of Italian justice, Ms Smaltini and her family appealed to the Strasbourg Court. Pursuant to Article 6 (1) of the Convention, they complained that, in appointing the experts, the Public Prosecutor’s Office had not followed the procedure laid down in Article 360 of the Code of Criminal Procedure, and that the expert’s report was based on statistical data rather than on the appellant’s state of health. They also complained that they had been denied a copy of the experts’ report, thus depriving them of the possibility of presenting it to a doctor of their choice in order to challenge its findings. Finally, they complained of a violation of Article 2 of the Convention, a causal link between the factory’s emissions and the development of leukemia.
The UFDU, as a third party, underlined the duty of the Italian State to safeguard the right to life of its citizens, therefore its failure to act with regard to the polluting emissions and the protection of the victims of Ilva’s pollution must be perceived as a violation of its obligations.
Case of Kurić and Others v. Slovenia
In a landmark judgment handed down on June 12, 2012 by the Grand Chamber of the European Court, the Slovenian government was condemned for violating the rights of citizens of the former Yugoslavia, who, since Slovenia declared its independence in 1991, have been unlawfully removed from the register of permanent residents, thereby losing all legal status.
After the Chamber held that the issuance of retroactive residence permits constituted an “adequate” and “sufficient” remedy for Mr. Petreš and Mr. Jovanović’s complaints under Articles 8, 13 and 14 of the Convention, and that they were no longer considered “victims” of the alleged violations, the applicants requested the Grand Chamber to overturn the Chamber’s decision. The latter, 13 July 2010, declared the Slovenian Government responsible for the violation of the private and family life of the applicants, who were forced to live for 20 years with uncertainty about their legal status, and without moral and material support. Furthermore, the Grand Chamber recognized a violation of Article 8 of the European Convention, which safeguards respect for private and family life, and Article 13, which guarantees the right to an effective remedy, as the Slovenian government refused to rectify the legal position of the applicants, contrary to the provisions of the Constitutional Court. In addition, the law adopted in 2010 to resolve the problem proved to be inadequate. The Chamber also condemned Slovenia because of the violation of Article 14, as citizens of the former Yugoslavia suffered discrimination and were subjected to harsher treatment than foreigners, who were allowed to maintain their legal status.
In addition, the Court awarded, on an equitable basis, EUR 20,000 to each applicant for non-pecuniary damage, and a further EUR 30,000 to the applicants jointly in respect of costs and expenses incurred.
Download UFDU press conference
Case of Hirsi and others v. Italy
On May 6, 2009, 35 nautical miles south of Lampedusa, Italian authorities intercepted three vessels carrying 200 Somali and Eritrean refugees (including pregnant women and children). The migrants were transferred onto Italian military vessels, returned to Tripoli and handed over to Libyan authorities against their will, without identifying or listening to them, and without announcing their next destination.
The rejection goes against the principle of non-refoulement, which prohibits a country from rejecting asylum seekers who may be subject to persecution (Art. 3 ECHR). Rejection is also a violation of Article 4 of Protocol 4 of the Convention, which prohibits the collective expulsion of foreigners, and Article 13, which guarantees the right to an effective remedy. Among these migrants, in fact, there could have been asylum seekers who were denied the right to seek protection in Italy.
Moreover, in Libya migrants risk being taken to detention centers and sent back to their countries without having the possibility to apply for refugee status, as provided for by the 1951 Geneva Convention, of which Libya is not a signatory.
In its defense, the Italian government stated that Libya was a safe destination and that the intercepted migrants did not express their willingness to seek asylum or international protection.
The rejected migrants were represented by the President of the Unione forense per la tutela dei diritti umani, Anton Giulio Lana, and lawyer Andrea Saccucci.
The case sparked interest and mobilized many international organizations, such as the United Nations Refugee Agency (UNHCR) and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR), as well as other non-governmental organizations.
The Court’s decision | The Court condemned Italy for violating three fundamental principles: the prohibition of torture and other inhuman or degrading treatment or punishment (Article 3 ECHR), the absence of an effective remedy (Article 13 ECHR) and the prohibition of collective expulsion (Article 4, Protocol IV ECHR). For the first time, the Court equated collective refoulement operations at the border and on the high seas and the collective expulsion of those already in the country.
The Court emphasized that the rights of African migrants on the route to Europe are systematically violated in Libya. Furthermore, the latter has not offered adequate protection to migrants who, upon returning to their country of origin, may be persecuted or killed.
The living standards of migrants rejected on May 6, 2009 in Libya were dramatic. Most were held in detention camps where they were subjected to abuse and violence. The majority of applicants were granted refugee status in Libya by UNHCR.
After conflict erupted in Libya, applicants still in Tripoli became victims of reprisal attacks by both the army and insurgents, and were forced to go into hiding for long periods without access to food and water.
After the NATO intervention, some claimants fled to Tunisia, while others tried to reach Europe again. One of the claimants was granted protection in Malta, while two others died trying to reach Italy on a makeshift boat. Another claimant went to Israel, while one returned to Ethiopia. E., one of the claimants, after traveling back to Italy, was granted asylum by the Territorial Commission.
Based on the testimonies, it is likely that other claimants lost their lives at sea, since, according to UNHCR data, approximately 1,500 migrants died trying to reach Italy in 2011.
The Court unanimously decided that Italy must compensate the applicants EUR 15,000 each for moral damages, and EUR 1,575.74 in total for the costs and expenses incurred.