The case concerned the rejection of the appeal against the negative decision on the application for international protection as inadmissible because, according to the Legislative Decree No 251/2007, it was found, in limine litis, that there was no certification of the date of issuance of the power of attorney to the lawyer.

The Court of Cassation ruled that the case raises a question of constitutionality, precisely the compatibility of the abovementioned legislative provision with art. 3 of the Constitution and the principle of equality. Article 35 bis (13) of the Legislative Decree No 25/2008, inserted by Law No 46/2017, provides that: ‘The power of attorney to bring an appeal on a point of law must be granted, failing which the appeal will be inadmissible, after the contested decree has been communicated; for this purpose, the lawyer shall certify the date on which the power of attorney was issued to him.’

It was held that the legal provision requiring certification of the authenticity of the date of issuance of the power of attorney by the lawyer, limited only to international protection proceedings, which the Court of Cassation, in joint chambers, with Judgment No 15771/2021 of 27 April 2021, has interpreted as meaning that its absence leads to the inadmissibility of the appeal, raises, first, a question of compatibility with Article 3 of the Constitution, understood as the principle of reasonableness, as a corollary of the principle of equality;

The Court of Cassation, Civil Division, referred the case to the Constitutional Court in order to check the potential conflict with the following provisions:

• Article 10 of the Constitution, from the point of view of the protection of asylum applicants concerning the requirement for the person to be present on national territory at the time when the appeal on a point of law is lodged;
• Article 24 of the Constitution, which provides the inviolable right of defence, indiscriminately, to citizens and foreigners;
• Principle of due process as the conclusions and reasoning of the Joined Chambers of the Court of Cassation in judgement no 15177 of 27 April 2021;
• Article 117 of the Constitution in relation to the Revised Asylum Procedures Directive, with reference to Article 46 (Right to an effective remedy, particularly the paragraph 11, concerning the conditions laid down by the Member States in order to presume that the applicant for asylum has implicitly withdrawn or abandoned an appeal) and Article 28 (presumption of waiver), Articles 18, 19 (2) and 47 of the EU Charter; Articles 6, 7, 13 and 14 of the ECHR.