The Courts of Appeal of Naples and Bologna submitted questions before the Constitutional Court on the constitutionality of the legal provisions concerning the time limit to decide on appeal in cases related to international protection and also on compatibility with Article 6 of the ECHR. Precisely, the courts raised questions of the constitutional legitimacy of Article 2(2-bis) of the Law no 81/2001, introduced by the Article 55(1) (a) (2) of Legislative Decree no 83/2012 with reference to Article 3 (1)(2), and (115) of the Constitution, the latter in relation to Article 6 of the ECHR. These provisions provide that the reasonable time limit to decide on cases related to applications for international protection, as referred to in Article 35-bis of Legislative Decree 25/2008, is a timeframe not exceeding three years.

All orders of the referring courts of appeal agreed on the ordering nature of the period of four months from the lodging of the appeal as laid down in Article 35-bis (13) of the Legislative Decree 25/2008 and concluded that in disputes related to recognition of international protection, Article 2, paragraph 2-bis of Law 89/2001 must be applied. The later provides that the reasonable time limit is respected if the trial does not exceed three years for the first instance appeal, meaning that it covers the duration of the proceedings on merits.

The Constitutional Court considered unfounded the questions raised in by the courts of appeal  and referred to the CJEU judgement in the X and Y (Russia) v Secretary of State for Security and Justice (NL, Staatssecretaris van Veiligheid en Justitie) (C-180/17, 26 September 2018) which clarified that the guarantee of an effective remedy concerns the right of the asylum seeker to bring before a court, with the guarantees of jurisdiction, the examination of his application, while it is left to the procedural rules of the Member States to regulate the appeal against the decision of that court, at second instance or subsequently. The Constitutional Court also mentioned the CJEU case PG v Bevándorlási és Menekültügyi Hivatal [Hungary] (C‑406/18, 19 March 2020) which clarified that the recast Directive 2013/32/EU does not lay down harmonised rules on time limits for adjudication but it authorises Member States to set such time limits in the national legislations.

The Constitutional Court noted that the Court of Cassation had also concluded that international protection proceedings are governed by the general provision of reasonable duration for decision making as referred to in Article 2 (2-bis) of the Law No. 89 of 2001 (Sixth Civil Section, Order No. 1563 of 19 January 2023).

The Constitutional Court assessed that the case law of the CJEU referred to the guarantees needed for the judicial protection of asylum seekers, including the principle of a speedy procedure, when compared to processing on ordinary cases. However, the court considered that such principle does not suggest that the assessment is less complex for this type of cases, thus potentially leading to shorter procedure in a fixed period of time, On the contrary, the Constitutional Court considered that according to the CJEU case law, the proceedings in the field of international protection must be regulated in such a way as to ensure that the applicant’s individual situation is fully examined, and such guarantees may lead to complex investigations, which can justify the three years duration of the procedure at first instance and such duration would not be considered unreasonable.