The case concerned a question submitted y the Court of Cassation to the Constitutional Court on compatibility with the Constitution and the EU legislation of Article 35bis, par.13 of the legislative decree no.25 of 28 January 2008, which requires the certification of the date of issue of the special power of attorney for submission of a cassation appeal. The case consisted of the rejection of an application for international protection, decision confirmed in the first appeal. The applicant submitted a cassation appeal, but it was rejected as inadmissible for lack of certification of the date of the special power of attorney.

The Court of Cassation argued on the incompatibility of the requirement with the constitution based on the following grounds:

• An incompatibility with Article 3 of the Constitution because the requirement appeared is proportionate to the aim pursued in the sense that it results into a differential treatment between nationals and applicants for international protection, without a vali8d justification, leading to a violation of the principle of equality and the right to defence;
• the contested provision may raise issue in relation to the suspension effect of appeal in the event of a negative decision, the referring court considering it a failure not to automatically extend the suspensive effect until the end of the proceedings, including after the first appeal;
• the court considered that the applicant’s right to effective judicial protection is not respected if he is imposed effective presence on the territory of the state for the purpose of conferring the special power of attorney for appeal after the issue of the contested decision and considered that this challenge would be a substantial impediment to access the only remedy available.

The Constitutional Court extensively presented the national and EU legislation concerning international protection and the construction of the appeals system in Italy in the field of asylum and detailed on the legal requirements of Civil coede3 and civil proceedings code with regard to the special power of attorney and the certification for a cassation appeal. The Constitutional Court concluded that the claim on constitutionality issue is groundless. It mentioned the recast APD and the CJEU case law, X and Y (Russia) v Secretary of State for Security and Justice, C-180/17, ECLI:EU:C:2018:775, 26 September 2018.  which clarified that the EU law provides the guarantee of at least one appeal as effective remedy for asylum applicants, , before a judge, with the guarantees of an independent jurisdiction, with an ex nunc examination whereas a second level of appeal was left at the discretion and regulation of each Member States that judge.

The court also mentioned that the Article 47 EU Charter, read in the light of the guarantees established by articles 18 and 19, paragraph 2, on the right of asylum, does not impose the existence of a double level of judgement: essential, in fact, it is only that it is possible to carry out an appeal before a judicial authority. Thus the introduction of an appeal in cassation against decisions rejecting an application for international protection falls within the procedural autonomy of the Member States, in the absence of rules established by EU law, without prejudice to compliance with the principles of effectiveness and equivalence.

Limits to the principle of procedural autonomy of the Member States are only those of the effectiveness and equivalence of protection: the latter is expressed in the sense that the procedural guarantee offered to rights of European origin must not be less than that recognised compared to similar positions in domestic law. The court mentioned that a similar formal rule applies for cassation appeals submitted by foreigners against a first instance judgment which concludes with an unappealable order.

On the issues of a potential discrimination as provided by the Article 14 ECHR, the court stated that except Article 3 ECHR, member State have a wide margin of appreciation. On the issue of a potential infringement of Articles 6 and 13 of the ECHR, the right to a fair trial and effective remedy, the court mentioned that the contested requirement does not equate to an excessive formalism. it cannot be considered that the declaration of inadmissibility of the appeal in the case of a special power of attorney, the date of which, subsequent to the delivery of the contested measure, has not been certified by the defender, constitutes an expression of excessive formalism in the application of the procedural rule. Following the decisive intervention of the joint civil sections (Cass. n. 15177 of 2021, Court of Casation) the formal burden of certifying the date of issue of the power of attorney, is placed on the defender lawyer, specifically expert to be qualified to defend before to the Court of Cassation. The ECtHR has also observed that the legislation on the formalities and deadlines to be observed in order to present an appeal is aimed at ensuring the proper administration of justice.

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