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March 06, 2023

Brief Reflections on International Protection in Europe Part One

Salvatore Filippini La Rosa

The conflict between Ukraine and Russia began on February 24, 2022. 

After more than a year from that date, it may be appropriate to briefly summarize the European legislation governing international protection in favor of those who are entitled to it, no matter if they come from Ukraine or other non-European countries. Furthermore, it is my intention to briefly explain in part two of this article how this protection is carried out in one of the EU member states, Italy.

The recognition of refugees and their inviolable rights are regulated by the Geneva Convention of July 28, 1951 and the New York Protocol of January 31, 1967. In particular, the principle of non-refoulement is sanctioned by article 33 of the Geneva Convention.

This principle is also established by the Charter of Fundamental Rights of the European Union, whose article 19 states that no one can be removed, expelled or extradited to a State where there is a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

The European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, subsequently amended and supplemented by 14 additional Protocols, sanctioned the same rights.

As regards the reasonable fear of being persecuted, which is an essential condition for the recognition of refugee status, the evaluation of the same is based on both subjective and objective elements.

The first consists of the applicant's personal characteristics: age, sex, family and personal background, or membership in a social, political, religious group. These condition the applicant’s perception of the dangers to which he/she is exposed and, therefore, his/her well-founded fear of persecution. The second concerns the objective situation of the country of origin.

In the European context, the definition of a refugee established by the Geneva Convention was taken up by Directive 2004/83/EC of April 29, 2004, that had the merit of widening the scope of the protection due to aliens.

This directive defined as "international protection" not only the refugee status, but also the so-called subsidiary protection, as defined in letters (e) and (f) of the same article.

Thereby, the spectrum of protections is expanded in favor of those who, due to the risk of non-compliance with one or more fundamental rights pertaining to each human being, cannot return to their country of origin.

In letters (e) and (f) of article 2, in fact, the aforementioned Directive established that subsidiary protection belongs to any citizen of a third country (or to any stateless person) lacking the necessary requisites for the recognition of refugee status.

Subsidiary protection also applies in the event there are well-founded reasons to believe that his/her return to the country of origin or habitual residence (if stateless) presents a real risk of suffering serious harm such as a death sentence, torture or another form of inhuman or degrading punishment or treatment. A serious individual threat to his/her life or person due to indiscriminate violence in situations of internal or international armed conflict also warrants subsidiary protection.

As regards the acts of persecution, they must be sufficiently serious to represent a violation of rights for which any derogation pursuant to article 15, paragraph 2, of the ECHR, must be excluded. They may be acts of physical or mental violence, including sexual violence, or legislative, administrative, police and/or judicial measures, discriminatory by their nature or implemented in a discriminatory manner, as well as actions disproportionate or discriminatory judicial or criminal sanctions.

This directive was then replaced by Directive 2011/95/EU of December 20, 2011, which confirmed the definitions and, more generally, the regulatory framework of the previous directive (also with regard to subsidiary protection).

As we can see, there is therefore a protection system defined as international, which makes use of the recognition of refugee status and, in the alternative, of subsidiary protection. Part Two of this article will address the application of this protection in the context of Italy.

    Salvatore Filippini La Rosa


    Salvatore Filippini La Rosa is a lawyer and international observer.

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