Witchcraft in international asylum law. 
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The points of contact between the practice of witchcraft and the Italian legal system mostly emerge in the field of international protection (e.g. asylum and other milder forms of protection). The majority of case law on the subject is mainly related to two types of events, which are able to determine potential dangers to the individual's safety: that of "witch hunts", in which applicants seek protection because they are accused of exercising witchcraft powers by the community of origin and are therefore persecuted or marginalised;[1] and that concerning the fear of having already suffered past or the possibility to suffer future acts of witchcraft, which may lead to both physical and psychological illness. In the latter case, acts can often be traced back to the context of private disputes over family or inheritance issues.[2] These are cases in which, therefore, the subject requests from the host legal system, which is different from the legal system of origin, a form of 'protection' from cultural aspects characteristic of the context of origin.
On the phenomenon of contemporary 'witch-hunting', it should be pointed out that it does not only affect women or the elderly, but is also widespread against men and even minors. In some pronouncements on the subject, there has been talk of a veritable 'witch-hunt', potentially generating severe limitations on human rights, resulting in particular in situations of marginalisation or the danger of being subjected to torture and ordeal in the event of imprisonment. For this reason, the choice of protection tools to be used has expanded to include, depending on the case, not only the use of the more tenuous humanitarian-special protection, but also that of subsidiary protection governed by Article 14 lett. c) of Legislative Decree 251/2007, granted for situations of serious and individual threat to life or person resulting from indiscriminate violence in situations of internal or international armed conflict. Consequently, in some judgments concerning witchcraft, one can find a stricter interpretation of the obligation for investigative cooperation, established in case law, according to which the same is determinative even in the face of hypotheses of unreliability of the story, as it is aimed at ascertaining an objective and generalised situation of violence.[3]
The issue of witchcraft is also quite deep-rooted at the international level. A 2009 study by the UNHCR clearly shows the extent of the witch-hunting phenomenon, highlighting how it can be considered a form of persecution for belonging to a particular social or religious group. The phenomenon of witchcraft is still particularly widespread because it corresponds to a mode of management and representation of reality: some African states have found themselves having to deal with the problem by means of witchcraft-related regulations, even at the penal level, although this has not helped to guarantee full protection for the victims.[4] The constant spread of the phenomenon and its danger stems mainly from two reasons: its political valence and its link to the structures of pre-colonial customary law. In relation to its political significance, it must be pointed out that, since it is a belief deeply rooted in common feeling, it has very often been used as a political tool to seek consensus among the masses: some political movements have sometimes supported the phenomena of private vigilantism that have mutated into veritable witch-hunting campaigns, carried out by private citizens within communities, often in response to the need to find forms of scapegoats for calamities, poverty, social malaise or epidemics. According to the 2009 UNHCR Study,[5] dedicated to the topic of witchcraft and its interference with human rights, this happened in Zambia, Malawi and Benin. In South Africa, for another example, during the struggles against apartheid, even the party of the revolution, the ANC, was forced to come to terms with the strong support that some of its supporters, among the population, showed for the practice of witch-hunting. The UNHCR study reports that in the northern provinces alone, at least 389 witchcraft killings were estimated between 1985 and 1995. In 2007, in the province of Mpumalanga, a bill, called the Witchcraft Suppression Bill, was drafted to outlaw the practice of witchcraft, witchcraft accusations and regulate the role of traditional healers. ​

The proposed legislation was strongly opposed by two movements, the South African Pagan Rights Alliance and the Traditional Healers Organisation. The former, an association composed of individuals identifying themselves as 'witch doctors', complained of a real violation of religious freedom. The second represented the association of traditional healers. The influence of these two movements was so great that the South African Law Commission was asked to assess the constitutionality of the proposal. Following this, the Commission initiated a study project on the revision of all witchcraft legislation.
With regard to the second point, however, it is important to consider that witchcraft has always been an important part of the customary law system, regulating the life of communities in pre-colonial times, and was therefore influenced by the phenomenon of colonisation and decolonisation. The belief in witchcraft in the original pre-colonial communities responded, like other human facts, to a regulated system of dispute resolution. Individuals who were accused of performing witchcraft and evil acts towards other individuals were tried before the community leaders. The process of ascertaining responsibility for the witchcraft act was regulated by a system of guarantees that prevented the phenomenon from degenerating. A climate of witch-hunting involving the entire community would in fact have seriously endangered the subsistence of the community itself, so the phenomenon was treated and curbed in function of the prosperous and peaceful survival of the community, as was the case for other disputes.[6] Colonial legislation and jurisdiction, superimposed on these original community structures, often refused to deal with disputes involving accusations of witchcraft, because they were totally incompatible with the cultural principles of law and regulation of existence known in the West. These kinds of disputes have therefore been relegated over time to the shadows, in the absence of any kind of regulation other than that of simple human impulse. It is likely that this has allowed witchcraft to become increasingly entrenched in populations, especially rural populations, and to reach the present day strengthened in the post-colonial era by claims of cultural belonging and the consequent political connotations.
 
From a superstition to a practice which impacts fundamental rights. 

From this perspective, the phenomenon described takes on a value that is anything but a mere superstition. It has its roots in a cultural and legal system that is profoundly different from the legal systems common to the majority, but with features that can be delineated. In assessing the damaging significance of phenomena of this kind, an understanding of the context and the perception of those involved is of fundamental importance. For this reason, these are issues that are well suited to be studied in depth through the consultation of experts (provided for, for example, under Article 8(3 bis) of Legislative Decree No. 25 of 2008).
The actual witchcraft capacity of acts or individuals is not relevant. What is relevant instead is the perception that victims and persecutors have of them. It is, in fact, on the basis of this perception (as highlighted by the judges of legitimacy on the basis of the "current psycho-physical situation", the "cultural and social context of reference", the "subjective belief of the applicant to be a victim" with consequences on his individual and community existence[7]) that the danger or serious harm is likely to materialise. In this sense, the rights involved in the balancing act, which are set against the requirements of security and public order to which the protection system must adhere, are broad and can be found in the constitutional framework of Article 2.
 

notes

[​1] The rulings concern also the persecution that can be suffered by the family members of a "witch": Ordinary Court of Turin, judgment of 3 February 2020, no. 741 (witch persecution of minors); in this case the accused of witchcraft is an Ivorian minor and the mother, who is in Italy, requests protection for fear of being persecuted upon returning to her homeland as the mother of a "witch"); Cass. Civil section work - 01/28/2022, n. 2717 (persecution suffered by family members of a "witch").

[2] Fear of having undergone or being liable to undergo witchcraft acts: Cass. Civ. sez. lav. - 16/02/2022, no. 5146; Cass. Civ. sec. lav. 13/04/2022, no. 12040; Cass. Civ. sec. III - 20/04/2022, no. 12644.

[3] Already cited. Cassazione Civ. sez. III - 20/04/2022, no. 12644 citing C.G.U.E. 30 January 2014, in case C-285/12, Diakite'. In this regard, it should be noted that in the aforementioned ruling of the Ordinary Court of Turin, sentence of 3 February 2020, n. 741, from an investigative point of view, there is an accurate in-depth analysis of the phenomenon of witch hunt: this undoubtedly contributes to the judge's decision to attribute refugee status to the applicant, i.e. the highest form of protection, giving rise to a different procedural outcome compared to that of the existing jurisprudence on the matter, more oriented instead towards less decisive forms of protection.

[4] As was the case in Cameroon (Section 251 of the Penal Code) and Nigeria (Section 210 of the Penal Code) - see the entry on Witchcraft in this Guidebook - in some states, in fact, only witchcraft acts are punished, but not witch hunts.

[5] UNHCR study, 2009, Witchcraft allegations, refugee protection and human rights: a review of the evidence, pg. 32 ff.

[6] Maakor Quarmyne (2011), for the historical and political evolutions of witchcraft and its links to the customary law system; Cavina M. (2020), describes the relations between witchcraft cases and the colonial administration and in particular reports some episodes in which the phenomenon of witch-hunting and violent mobs, in the early 1900s, had led to a problem of public order for the colonial administration of French Balantacounda: conspicuous masses of individuals belonging to certain villages had begun to undergo mob trials to prove to their community that they were not witchdoctors. These trials required the ingestion of poisons, herbs and other toxic substances, resulting in a public health hazard due to multiple intoxications, infections and deaths. 
[7] Cass. Civ. sec. I - 15.05.19, no. 13088.