Last June 20 celebrated World Refugee Day, in a political climate (in Italy, but not only) overheated by the decided change of course implemented by the new Italian government on the landing place in its ports of ships belonging to the various NGOs (non-governmental organizations), carrying migrants.
The ship's story still echoes in the global media echo Aquarius, to which, in these hours, has been added that of the SeaLife.
There have been articles on articles, and different actors, singers or members of the sporting world have tried to show their closeness to the refugees, being photographed while holding a sign with the words "#withrefugees" (that is, from the refugee side) .
So much controversy, even on this initiative, but, in point of law, the message is correct and shareable and, moreover, online, perhaps unconsciously, with the new Italian policy on the subject which, on the other hand, was probably to be criticized.
And let's see why, also in order to facilitate a more detailed reflection on this important issue.
Everything stems from the confusion that is created between the various terms that, in the complex and varied media world, unfortunately, often lead to a real disinformation, sometimes malicious, sometimes guilty negligent, and certainly no less serious than the first.
How not to be on the side of a refugee?
According to the Geneva Convention of 1951, in fact, he is defined as a person who "fearing reason to be persecuted for reasons of race, religion, nationality, belonging to a particular social group or political opinions, is outside the country of which he is a citizen, and can not or does not want, because of this fear, to avail himself of the protection of that country; or that, having no citizenship and being outside the country in which he habitually resides as a result of such events, he can not or does not want to return there because of the aforementioned fear "".
From a legal point of view, therefore, it emerges that the essential elements that should characterize this figure are:
-
the well-founded fear of being persecuted;
-
the reasons for the persecution;
-
the citizen is already out from the territory of the state of which he possesses citizenship (or where he resides, if he is stateless) and, due to fear of persecution, he is unable or unwilling to place himself under the protection of that state
The reasons for the persecution
The persecution, in particular, to be relevant to the recognition of refugee status, must be due to the following reasons, defined by art. 8 of D.Lgs. 251 / 2007:
-
"Race": to be traced back to the color of the skin, to the descent, to belonging to a specific ethnic group;
-
"Religion": in reference to theistic beliefs, not theistic and atheistic; to participation or abstention from rituals, acts of profession of faith and forms of behavior based on a creed or prescribed by it;
-
"Nationality": in which the membership of a group characterized by a cultural, ethnic or linguistic identity, common geographical or political origins or the affinity with the population of another state should be included;
-
"Particular social group": to be understood as the aggregation of members who share an innate characteristic or a common history, which can not be changed or that share a characteristic that is so fundamental to identity or consciousness that they should not be forced to renounce it ;
-
"Political opinion".
Article. 7, paragraph 2 of the aforementioned Legislative Decree 251 / 2007, specifies, by way of example, the crafts that can take the persecution:
-
acts of physical or mental violence;
-
legislative, administrative, judicial or police measures, discriminatory by nature or discriminatory;
-
judicial or disproportionate or discriminatory criminal penalties;
-
refusal of access to legal protection and consequent disproportionate or discriminatory sanctions;
-
judicial actions or sanctions as a consequence of refusal to provide military service in a conflict, when this could lead to the commission of serious crimes;
-
acts specifically directed against a gender or against childhood.
For the purposes of recognition of refugee status, the persecution may come from:
-
from the state;
-
by parties or organizations that control the state or a substantial part of its territory;
-
by non-state actors, but only if the subjects mentioned above can not or do not want to provide protection against persecution, where it is well taken care of, protection means the adoption of adequate measures to prevent persecutory acts, making use of other of an effective legal system that allows to identify, prosecute and punish acts of persecution and in the applicant's access to these measures (articles 5 and 6, D.Lgs. 251 / 2007)
Cases of exclusion
It is important to underline that, even in the presence of the requirements described above, the applicant can not obtain refugee status or subsidiary protection, when there are reasonable grounds to believe (Article 10 and 16 D.Lgs. 251 / 2007) that:
a) has committed a crime against peace, war crime or crime against humanity, as defined by international instruments related to such crimes;
b) has committed outside the Italian territory, prior to the issue of the permit of stay as a refugee, a serious crime or that he has committed particularly cruel acts, even if perpetrated with a stated political objective, which can be classified as serious crimes (where the seriousness of the crime is also assessed taking into account the punishment provided for by the Italian law for the offense not less than four years or a maximum of ten years );
c) has been guilty of acts contrary to the purposes and principles of the United Nations, as set out in the preamble and in the articles 1 and 2 of the United Nations Charter.
Moreover, the same Convention of the specific 1951, in the art. 33, co. 2, that "The benefit of this provision (concerning the infamous principle of non-refoulement of the one who requires refugee status) however, it can not be invoked by a refugee for whom there are serious reasons to consider it a danger to the security of the State in which he is, or by a refugee who, having been the subject of a sentence that has already been res judicata for a crime or a particularly serious crime, represents a threat to the community of that State ".
So things, therefore, it is obvious that no person can be opposed, in principle, to being on the side of refugees (the only category to find definition in international law and whose status, for certain reasons, it can also be lost) from which we must distinguish the migrants (or "immigrants") and i asylum seekers.
The first are those who decide to leave their country of origin voluntarily to find a better job and living conditions, and not being persecuted in your country, they can return home safely.
The latter, on the other hand, are people who, having left their country, request the recognition of refugee status or other forms of international protection (note: until a final decision is taken by the competent authorities of that country, such persons have the right to stay regularly in the country, even if they arrived without identity documents or in an irregular manner), in the aforementioned terms.
A final notation deserves, again, the term refugee that, in a generic way, indicates who leaves his country because of wars, invasions, riots or natural catastrophes and that therefore has little to do with that of refugee.
I wonder if the various testimonials were aware of all this. We trust yes.
Avv. Marco Valerio Verni
(photo: UNHCR)
