Ordinanza n. 15981 del 2012

Decision and reasoning - 

In this case the Italian Supreme Court considers that the sanction of criminal law against homosexual acts provided by article 319 of the criminal code of Senegal is in itself a general condition of deprivation of the fundamental right to live an emotional and sexual life without restrictions. In Senegal people with a homosexual orientation are compelled to violate the criminal law and are at risk of severe sanctions, in order to live freely their own sexual identity. Persecution can be a radical fight against minorities, which can also be enforced on legal grounds, i.e. establishing detention measures in order to oppose certain behaviour. 

As a consequence the criminalization of homosexual acts by article 319 of the Senegalese criminal code is considered to be itself a form of persecution. The cited Senegalese criminal code provision constitutes a grave interference in private life, which compromise personal freedom of LGBTI* people in Senegal. Such a violation of a fundamental right, provided by the Italian Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, has direct consequences on the individual condition of LGBTI people. In the Senegalese legal framework LGBTI people do suffer acts of persecution that justifies the application of international protection. The Court of Appeal decision has to be reviewed because, as to the social situation in Senegal, the Court ignored homophobia and the grave discriminatory and persecutory acts against LGBTI denounced by press, institutions and NGOs.

* (referred to as “homosexuals” in the original text)