Communicated on 4 May 2020 Published on 8 June 2020

FIRST SECTION

Application no. 37442/19 Divine UMORU against Italy lodged on 16 July 2019

STATEMENT OF FACTS

The applicant, Mr Divine Umoru , is a Nigerian national, who was born in 1994 and lives in Bologna. He is represented before the Court by Ms C. Brandalise and Ms A. Lauri, lawyers practising in Bologna.

1 . The applicant was born in Nigeria on 2 February 1994.

2 . On 12 November 2003 he arrived in Italy following the issue of a visa for family reunification.

3 . On an unspecified date his father returned to Nigeria and the applicant ’ s care was entrusted to his mother.

4 . On 28 February 2005 the Bologna Minors Court assigned the custody of the applicant to social services and ordered his placement in an institution.

5 . He was placed in foster care in different institutions until he turned of age.

6 . As stated in the judgment of the Tribunal of Bologna of 14 July 2018 (see paragraph 27 below), the applicant, still adolescent, was sexually abused and victim of homosexual prostitution.

7 . From August 2017 to June 2018 the applicant was followed by the Centre for Mental Health of the local health authority for pathological personality traits, depressive symptomatology and overall psychopathologic vulnerability, which made it necessary to support him through psychotherapeutical care.

8 . Since February 2018, social services helped him find employment. From February to May 2018 he attended several orientation sessions and trainings and from June to October 2018 he did an internship in the framework of a programme sponsored by the Region Emilia-Romagna.

9 . In September 2018 he started living together with his partner, an Italian national, whom he married in August 2019.

10 . Since 26 July 2019 the applicant has been followed again by the Centre for Mental Health of the local health authority which supports him through pharmacological and psychotherapeutical care.

11 . He claims that since his arrival in Italy he has never visited Nigeria and that his mother has been legally residing in Italy for more than fifteen years.

(a) The applicant ’ s criminal history before 2016

12 . On 28 July 2014 the applicant insulted a policeman and hit him on the hands. By a decision of 16 January 2015 the Tribunal of Bologna sentenced him to pay a financial penalty of 25,000 euros for insults and violence towards a police officer. The penalty was suspended.

13 . On 19 May 2016 the applicant was found carrying a knuckle duster without a justified reason. By a decision of 2 January 2017 the Tribunal of Bologna sentenced him to pay a financial penalty of 23,000 euros for carrying an object that could cause harm. The penalty was suspended.

14 . The applicant has been repeatedly reported to the police in relation to other acts allegedly committed from 10 February 2013 to 11 December 2015. Following those reports, criminal proceedings are currently pending against him for private violence, destruction of property, carrying arms or objects that could cause harm, theft and trespassing.

(b) The conviction for attempt to produce explosive substances

15 . On 2 August 2016 the applicant was arrested and subsequently detained on remand, being accused of threat and attempt to produce explosive substances with the aggravating circumstance of terrorism or subversion of democratic order.

16 . On 12 April 2017 the Tribunal of Bologna convicted the applicant of threat and attempt to produce explosive substances, but excluded the aggravating circumstance of terrorism or subversion of democratic order. According to the domestic court ’ s findings, on 2 August 2016 the owner of the apartment where the applicant lived called the police claiming she had been threaten by the applicant and that he might be in possession of explosives. He was indeed found in possession of large quantities of chemical substances and instructions for the production of homemade explosives. Documentation found in his apartment showed that he had participated in demonstrations linked to the political area of insurrectional anarchists (some of these events included violent clashes with the police). He was also found in possession of some notes which blamed national companies to be involved in war scenarios with a list of their power and gas plants located in the city of Bologna.

17 . The Tribunal of Bologna sentenced him to two years ’ imprisonment, a punishment close to the statutory minimum, and fined him 8,000 euros. It suspended the application of the penalty and released the applicant from detention on remand, on the grounds that he was a first-time offender and an optimistic prediction could be made as to his future behaviour.

When assessing the sentence, the Tribunal considered, on the one hand, that the applicant had been repeatedly reported to the police for his participation in the political demonstrations cited above; his contribution to the trial had not been particularly significant; while in detention on remand, he had a disciplinary report. On the other hand, the Tribunal found that the quantity and quality of the chemicals were insufficient to provoke any serious damage to the country or even to the targets listed in the notes found in the possession of the applicant. As mitigating factors, it took into account the fact that the applicant had not been criminally sentenced before, he was not an expert in the production of explosives and the quantity and quality of the chemicals found in his possession were not of particular importance.

18 . The applicant challenged the judgment of the Tribunal of Bologna of 12 April 2017 before the competent Court of Appeal, which upheld it by a judgment of 18 March 2019, which became final on 4 June 2019.

19 . The Court of Appeal found that after his conviction the applicant had demonstrated good behaviour. However, it denied the applicant ’ s request for a more lenient sentence, taking into consideration the fact that before 2016 he had been repeatedly reported to the police for his participation in the political demonstrations of insurrectional anarchists.

(c) The police report of 3 January 2019

20 . On 3 January 2019 at 1:00 a.m., the police stopped the applicant in the street for an identity check. Considering that he was acting suspiciously, the police conducted a search. According to the report which was subsequently drafted, the search gave a negative outcome and t he applicant was only requested to present himself to the Immigration Office to show his residence permit. However, a ccording to the report, during the search the applicant complained and yelled about the fact that the police stopped him only because of the colour of his skin and that his life was not worthy. He mentioned that he was neither Nigerian nor Italian, but a person, and that he might commit a suicide that would be heard of.

21 . On 12 November 2003 the applicant arrived in Italy following the issue of a visa for family reunification (see paragraph 2 above).

22 . On an unspecified date after his care was assigned to social services, he was granted a residence permit for reasons of custody, which was renewed until he reached the age of majority.

23 . On 15 March 2012 his residence permit was renewed for study purposes.

24 . On 15 September 2016, the Bologna police authority ( questore ) rejected his request for renewal of residence permit, on the grounds that he had been repeatedly reported to the police and arrested on 2 August 2016.

25 . On 12 April 2017, the applicant filed a request for international protection, which the Territorial Commission of Bologna dismissed on 4 May 2017.

26 . The applicant challenged the decision of the Territorial Commission before the Tribunal of Bologna.

27 . By a judgment of 14 July 2018, the Tribunal of Bologna upheld the decision of the Territorial Commission insofar as it rejected the applicant ’ s request for asylum, but allowed the applicant ’ s request for humanitarian protection. In particular, the national court rejected the arguments raised by the applicant in relation to both his alleged bisexuality and the existence of the situation of widespread violence in Nigeria. However, in declaring him eligible for humanitarian protection, the national court attached importance to the fact that the applicant had been residing in Italy since 2003 and had not been in Nigeria since he had been eight years old. It considered that the applicant did not have any significant tie with his country of origin, as he had only sporadic phone calls with his father, a catholic pastor who performed rituals of exorcism and from whom the applicant felt culturally and emotionally distant.

28 . The Tribunal of Bologna further found that the applicant had started to pursue a path of human development to redeem from his past of sexual abuses and marginalisation; the medical reports demonstrated his need for psychotherapeutical care and that returning to Nigeria would have impaired his precarious mental balance.

29 . With reference to his criminal record, the Tribunal of Bologna considered that ( i ) the applicant had been convicted at first instance by a judgment which suspended his detention; (ii) an appeal against that judgment was still pending and (iii) any future assessment on the applicant ’ s possible dangerousness for public order and safety had to be entrusted to criminal judges.

30 . On 15 July 2019 the Ministry of the Interior notified to the applicant an expulsion order dated 12 July 2019. The reasoning, insofar as relevant, reads as follows:

“... Having examined the documents of this office which show that [the applicant] is particularly active in the movement of insurrectional anarchists of Bologna and that, on 2 August 2016, he was arrested for the crime defined in Article 1 of Law no. 895/1967 with the aggravating circumstance of terrorism, having been found in possession of a large amount of explosive material;

Considered that information collected in the course of investigative activities has shown that [the applicant] has offered material support to known anarchic extremists considered responsible for sending packages containing explosive devices to judges and civil servants, also offering to those extremists the possibility to use his home;

Considered that he has shown in different contexts a marked dangerousness, as demonstrated by the fact that he was repeatedly reported to the police and arrested for crimes related to disturbances to public order and individual conduct such as criminal damage, aggravated burglary, private violence, carrying arms or objects that could cause harm, interrupting a public service;

Considered that his presence on the Italian territory constitutes a threat to the security of the State and might facilitate, in various ways, terroristic organizations or activities;

Considered that the length of his stay in Italy, his age, his family and economical condition, his health condition, his level of social and cultural integration and the importance of his ties with Italy do not overcome the need for the adoption of an expulsion order ... ”

31 . On 15 July 2019 a decree of the Bologna police authority ( questore ) revoked the applicant ’ s residence permit relying on the expulsion order of the Ministry of the Interior of 12 July 2019 and ordered to escort the applicant to the border of Milano Malpensa.

32 . On the same day, the decree of the questore was upheld by the Justice of the Peace of Bologna. The decision of the Justice of the Peace stated that the expulsion order is an act enjoying a high degree of administrative discretion (“ un provvedimento di alta discrezionalità amministrativa ”). Therefore, judicial review would be restrained to a limited and extrinsic control of legitimacy, aimed at controlling that the order was properly reasoned. According to the Justice of the Peace, the reasoning given in the expulsion order could not be assessed on the merits, unless in the exceptional case of an absolutely macroscopic illegitimacy (“ assolutamente macroscopica ”).

33 . On 16 July 2019 the applicant requested the Court to stay his expulsion under Rule 39 of the Rules of Court. The Duty Judge decided to indicate to the Government the stay of the expulsion for the duration of the proceedings before the Court and to submit questions to the Government.

34 . On 23 July 2019 the Government answered to the questions and requested that the interim measure be lifted.

35 . On 8 August 2019, on the basis of the information provided by the Government and the applicant, the Duty Judge decided to reject the request to lift the interim measure previously indicated.

36 . Following the application of Rule 39, the applicant challenged the expulsion order before the Lazio Regional Administrative Tribunal (TAR Lazio).

37 . By a decision of 10 September 2019 the TAR Lazio rejected the applicant ’ s request for interim measures. The reasoning generically refers to the lack of a “presumption of sufficient legal basis” ( fumus boni iuris ). As to the “danger in delay” ( periculum in mora ), the TAR Lazio considered that the expulsion order was currently suspended and therefore the applicant did not suffer from any current and concrete risk.

38 . Hearings regarding the merits of the case have not yet been scheduled.

39 . The applicant also challenged the decree of questore of 15 July 2019 revoking his residence permit before the Tribunal of Bologna.

40 . By a decision of 11 September 2019 the Tribunal of Bologna dismissed the applicant ’ s request for interim measures, considering that the applicant did not face any concrete risk due to the current stay of his expulsion. Hearings concerning the merits of the case were scheduled for 17 October 2019.

41 . The expulsion order concerning the applicant was issued by the Minister of the Interior under Art. 13 of the Legislative Decree no. 286 of 25 July 1998, which regulates the administrative expulsion of foreigners, and Art. 3 of the Law-Decree no. 144 of 27 July 2005, which sets forth rules on the expulsion of foreigners on the grounds of prevention of terrorism.

42 . Under Art. 13 of Legislative Decree no. 286 of 1998, for reasons of public order or State security, the Minister of the Interior may order the expulsion of a foreigner by informing the President of the Council of Ministers and the Minister of Foreign Affairs in advance. The expulsion shall be ordered by means of a reasoned decree and is immediately enforceable. An appeal against it before the competent courts does not stay its execution.

43 . Under Art. 3 of the Law-Decree no. 144 of 27 July 2005, the Minister of the Interior may order the expulsion of a foreigner in respect of whom there are justified reasons to believe that his stay in the territory of the State may in any way facilitate the operation of terrorist organisations or terrorist activities, including international ones.

COMPLAINT

44 . The applicant complains under Article 8 of the Convention that his expulsion to Nigeria would amount to a disproportionate interference with the exercise of his right to private and family life. He relies on the fact that he arrived in Italy as a child and that he has lived there for most part of his childhood and youth. He further alleges that the expulsion to Nigeria would compromise his precarious mental balance and would destroy his family life with his wife.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention?

2. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006 XII ), taking into account, in particular:

– the nature and seriousness of the offences committed by the applicant;

– the length of the applicant ’ s stay in Italy;

– the time elapsed since the offences were committed and the applicant ’ s conduct during that period. In particular, after the events which led to the judgment of the Tribunal of Bologna of 12 April 2017, did the applicant commit other offences? Did he participate in political demonstrations and/or other activities related to the political area of insurrectional anarchists which could reasonably lead the Italian authorities to believe that his presence on the territory of the State represents a danger to State security?

– the nationalities of the various persons concerned;

– the applicant ’ s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple ’ s family life;

– whether the spouse knew about the offence at the time when she entered into a family relationship;

– the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled;

– the solidity of social, cultural and family ties with the host country and with the country of destination.