Accelerated procedure

Italy

Country Report: Accelerated procedure Last updated: 30/11/20

Author

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

 

Article 28-bis of the Procedure Decree, as amended by Decree Law 113/2018, implemented by L 132/2018, 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 comes from a Safe Country of Origin;[2]
  2. The applicant makes a Subsequent Application without presenting new elements.

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:

  1. The asylum application is made by a person detained in a CPR or in a hotspot or first reception centre;[3]
  2. The asylum application is made at the border and is subject to the Border Procedure, i.e. following apprehension for evading or attempting to evade border controls, or by a person coming from a safe country of origin.[4]

18-day procedure: The Territorial Commission has 14 days upon receipt of the file from the Questura to organise the interview and another 4 days to take a decision, where:[5]

  1. The application is manifestly unfounded (see Regular Procedure: General);
  2. 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.

According to Article 28-bis(3) 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.[6] Where the application is made by the applicant detained in CPR or a hotspot or first reception centre, the maximum duration of the procedure cannot exceed 6 months.[7] 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.

In practice, in 2017 ASGI reported that asylum seekers whose application had been rejected as manifestly unfounded in some regions only became aware of the fact that they had been involved in an accelerated procedure when they were notified of the negative Territorial Commission decision by the Questura and they had only 15 days instead of 30 to appeal against the decision. Most of the appeals were considered inadmissible by the Civil Court of Naples because they were not lodged within the ostensible 15-day deadline. The judges, after refusing the request for suspensive effect, gave dates for the hearing one year later.

The Court of Appeal of Naples overturned the Court’s decisions on 3 January 2018, stating that the shorter time limits for appeal only apply in the cases set out in Article 28-bis(2) of the Procedure Decree and in cases where an asylum seeker applies from a CPR.[8] It highlighted that in order to safeguard the asylum seeker’s rights of defence, the accelerated procedure must be triggered by the Territorial Commission before a decision is taken, and with the applicant being informed thereof, rather than retrospectively applied it after a rejection decision has been issued following the regular procedure.[9]

As a result of the Court of Appeal decision, this unlawful practice stopped in 2018.

 

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:

Time limits for appeals in accelerated procedures: Article 35-bis(2) Procedure Decree

Ground for accelerated procedure

Legal basis

Days

Safe country of origin

Article 28-bis(1-bis)

30

Subsequent application without new elements

Article 28-bis(1-bis)

30

Border procedure

Article 28-bis(1-ter)

30

Manifestly unfounded application

Articles 28-bis(2)(a) and 28-ter

15

Application after apprehension for irregular entry with the sole purpose of frustrating issuance or execution of removal order

Article 28-bis(2)(c)

15

Applicant detained in a CPR, hotspot or first reception centre

Article 28-bis(1)

15

The time limits for appealing a negative decision under Article 35-bis(2) and corresponding provisions of the Procedure Decree raise issues of consistency following the 2018 reform. More specifically, if Safe Country of Origin is applied as a self-standing ground for applying the accelerated procedure,[10] the applicant would have 30 days to lodge an appeal. If, however, the accelerated procedure is applied on the basis of a manifestly unfounded application, which includes safe country of origin grounds,[11] the applicant would only have 15 days to appeal.

The automatic suspensive effect of the appeal also depends on the ground for applying the accelerated procedure. The appeal in the accelerated procedure generally has automatic suspensive effect, except for the following cases:[12]

  • Applications by persons detained in a CPR or hotspot or first reception centre;
  • Manifestly unfounded applications;
  • Applications subject to the Border Procedure;
  • Applications made after apprehension for irregular entry with the sole purpose of frustrating issuance or execution of removal order.

As stated in Regular Procedure: Appeal, appeals against decisions rejecting the application as manifestly unfounded also lack automatic suspensive effect.

 

Legal assistance

 

The same rules apply as under the regular procedure.

 


[1] Article 28-bis(1-bis) Procedure Decree, inserted by Article 9 Decree Law 113/2018 and L 132/2018.

[2] However, the CNDA Circular of 28 October 2019 the circular specifies that the accelerated procedure for safe countries must be understood as a 9 days accelerated procedure according to Article 28 bis (1 ter) of the Procedure Decree.

[3] Article 28-bis(1) Procedure Decree, as amended by Article 3 Decree Law 113/2018 and L 132/2018.

[4] Article 28-bis(1-ter) Procedure Decree, inserted by Article 9 Decree Law 113/2018 and L 132/2018.

[5] Article 28-bis(2) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.

[6] Article 28-bis(3) Procedure Decree, citing Article 27(3)-(3-bis).

[7] Ibid.

[8] Article 35-bis(2) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

[9] Court of Appeal of Naples, Decision 17/2018 3 January 2018, available in Italian at: http://bit.ly/2mxJHvD.

[10] Article 28-bis(1-bis) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.

[11] Articles 28-bis(2) and 28-ter(b) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.

[12] Article 35-bis(3) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation