Gay man persecuted in Morocco can stay in Italy

The Supreme Court of Cassation breaks a lance in favor of gay rights: Non-EU citizens who are expelled and, despite this, remain in Italy, are not criminally punishable provided that homosexuality is a crime in their country and not "just the outward manifestation of sexual immodesty.".

This is what can be deduced from the ruling no. 2907 filed today by the First Criminal Section of the Supreme Court.

This is the case of a Moroccan who had not complied with the order to leave the police station because, he had said, he was afraid of being persecuted in his country because of his homosexuality. Then, he had gotten into trouble with the law because he had violated Article 14 of the Bossi-Fini Law by remaining in Italy.

The Modena Court had decided to acquit him because, it explained, "given the defendant's homosexuality and the possibility of being persecuted in his own country – Morocco – and taking into account the legislation in force there, there was a justified reason for the non-compliance charged to the foreigner.".

The Bologna Public Prosecutor's Office appealed against this decision to the judges of the Palazzaccio and obtained a reopening of the case (appeal accepted with referral) for two reasons: the Emilian judges, in the opinion of the Supreme Court, had not ascertained that the 35-year-old foreigner was not only born in Morocco, but had full Moroccan citizenship. Not only that. They should also have ascertained that in that country homosexuality is a real crime and entails "the risk of serious persecution"".

In short, the police commissioner's expulsion order is unenforceable if "the foreigner is a citizen of Morocco such that, as such, and by virtue of his membership in that social and family community, he could return only to that country; and that, pursuant to the provisions of the Penal Code of that country, homosexuality as a personal practice is criminally punishable, and not merely the outward manifestation of sexual immodesty.".

In short, the Bologna Court will now have to evaluate all these factors before deciding whether or not to justify the violation committed by the Moroccan man who, ignoring the police commissioner's order, remained in Italy.