Cassation

Detention, the judge must assess the suitability of the measure on a case-by-case basis

In the case of the imam in Turin, the detention stop is justified by the lack of grounds for his dangerousness

by Camilla Curcio

4 March 2026

4' min read

Translated by AI

Versione italiana

Key points

The facts of the case
Violation of Union rules
The orientation of the Supreme Court
And expenses?

4' min read

Translated by AI

Versione italiana

On the subject of the administrative detention of persons applying for international protection, the judge must assess the suitability of the measure on a case-by-case basis, trying to find a balance between the protection of personal freedom and the interest in state security and public order. This was confirmed by Supreme Court ruling 825/2026, filed on Tuesday 3 March.

The facts of the case

The debate on the issue was sparked by the appeal - brought by the Ministry of Interior and the Turin Police Headquarters, through the State Attorney's Office - against Mohamed Shahin, imam of the San Salvario mosque in Turin. And, specifically, against the ruling of the Court of Appeal that, after the request for a re-examination of the detention decree by the imam's lawyers - transferred to the CPR in Caltanissetta - had ordered its stop. Proceeding to a re-evaluation of the legitimacy prerequisites, from the examination of the acts, the second instance judges had not deduced elements that aroused particular alarm. On the contrary. They spoke of 'a non-violent personality, positive consideration in the civilised world obtained through the years spent in Italia respecting the rules and civilised coexistence, activation for dialogue and integration'. Evidence that had led them to revise the judgement expressed at the validation: there was no longer the dangerousness noted by the Chief Constable of Turin, hence the consistency of the measure.

For the applicants, on the other hand, it was a decision that was not in line with the measures taken against Shahin: recipient of a decree of ministerial expulsion from the national territory with accompaniment to the border (validated by the Justice of the Peace) 'for having undertaken a path ofreligious radicalisation characterised by a marked anti-Semitic ideology and because he was in contact with subjects known for their fundamentalist and violent vision of Islam', was subject to revocation of the long-term residence permit and, subsequently, to detention. At the hearing before the Justice of the Peace, he had applied for international protection, which was subsequently rejected by the Territorial Commission of Syracuse 'for manifest unfoundedness'.

In the light of this framework, for the Avvocatura dello Stato, to demand from the Questore first and then from the judge during validation (and re-examination) a further verification of the dangerousness of a foreigner already expelled would have led to paradoxical consequences: on the one hand, the Questore would have had to superimpose his own assessment on that of the highest authority, the Ministry, not having the elements at the basis of the expulsion measure; on the other hand, the ordinary judicial authority would have risked reviewing profiles outside its own competence (and instead pertaining to the administrative jurisdiction).

The most straightforward strategy for the plaintiff, therefore, would have been to refer to the law: in the face of the alternative between detention and detention without alternative measures, either the measure was incompatible "following the assessment and ascertainment of no dangerousness" or, if it was decided that the foreigner should be detained, no "further elements of assessment of dangerousness, proportionality or adequacy" should remain in the hands of the questorile authority or the ordinary jurisdictional authority. From their point of view, therefore, a new monitoring of the risk - already ascertained by the ministerial bodies - was not required, but only the 'verification of the existence of the measure'. The Questore, therefore, had to limit himself to detaining and the ordinary judge to validating, since no problems of medical suitability had even been detected.

Violation of Union Standards

The appeal was countered not only by the Imam's defence - which highlighted a violation of the reservation of jurisdiction in the matter of deprivation of personal freedom, with the attribution to the judicial authority of a simple "notarial function", therefore of formal control without any direct intervention - but also by the Deputy Attorney General, recognising in the reasons given a lack of attention to both the interpretation of the Union jurisprudence on the detention of foreign persons and of the double protection guaranteed by the Constitution to the detained person. And reiterating the need not to confuse "the administrative act of expulsion, which affects the freedom to stay and reside in the territory of the State, with the administrative detention measure, which instead affects personal freedom, inviolable and guaranteed by Article 13 of the Charter".

The orientation of the Supreme Court

The Court of Cassation also found the appeal unfounded, validating the appeal ruling. And clarifying how, with regard to administrative detention, the ministerial measure - whose assessment of legitimacy is ultimately up to the administrative judge - must be subjected to "full judicial review (in the validation or extension phase) also at reasonable intervals (in the review phase), to guarantee the effectiveness of protection", always taking into account the importance of the right to personal freedom and the restriction that detention may generate on this front. In the case in question, the Court of Appeal had ordered the interruption of the decree because the criteria used by the Ministry to 'measure' the Imam's dangerousness were no longer such as to justify, at the same time as the examination of the new documents produced by the defence, his detention as an applicant for protection. Since personal freedom is at stake, there is no limit to the verifications to be carried out, even during re-examination.

In line with the EU regulations, then, the Supreme Court reaffirmed the value "of a case-by-case assessment" of dangerousness on the basis of a series of indices, first of all the risk of endangering public safety, in order to understand whether and how to detain the applicant for protection. A step that - not even proposed by the appellant lawyer - cannot be absolutely bypassed nor reduced to a simple examination of health suitability. If the assessment reveals the necessity of the measure, then it can be applied in proportion to the specific situation and the objectives pursued by the national legislation, justifying it only "in order to prepare the return or removal and if the use of alternative coercive measures is insufficient". Otherwise, it must be withdrawn.

And the expenses?

With regard to costs, according to the decision of the judges of legitimacy, the rejection of the grounds does not imply, for the Ministry of the Interior, the payment of trial fees nor of the sums allocated to the fine fund.