Supreme Court: if detention not validated, migrant to be released

For the Supreme Court, the treatment in the Cpr while waiting for a provisional bis of the Questore if the former has not been validated is a deprivation of liberty without any title. The first criminal section of the Supreme Court referred its constitutionality doubts on Decree-Law no. 37 of 28 March 2025, converted, with amendments, by the Law no. 75 of 23 May 2025 (Urgent provisions to combat irregular immigration) to the Constitutional Court.

The rule (Article 6 paragraph 2bis) ended up in the judges' crosshairs for the part in which it provides that an applicant who has submitted asylum application in a centre is nevertheless detained in the centre even if a judge has refused to validate the measure ordering the restriction, pending an encore measure adopted by the Questore, within 48 hours. For the Court of Cassation, this is a restriction of personal liberty introduced by law, when failure to validate at first instance would impose immediate release. In the opinion of the Supreme Court, the rule - introduced in the Commission without any examination of the issue by the study office of the Chamber and Senate - enters on a collision course with constitutional principles, with the European Convention on Human Rights, as well as with supranational norms.

In ruling on the case that triggered the order, the Supreme Court stated that, given the certain constitutional relevance of the issue, in the event of non-validation of detention in a CPR, the asylum seeker must be released immediately and cannot remain detained in a Centre for up to 48 hours as provided for by the law. The appeal examined concerns a migrant who had been taken to the CPR of Gjader in Albania and then, once the detention was not validated, transferred to the Centre of Bari and detained there from 4 to 5 July, thus causing a 'clear violation of the primary good of personal freedom'.

The Court of Cassation also issued a referral to the Joint Sections to decide on compensation in the event ofunlawful extension of the detention in the CIEs of a foreigner who entered Italy illegally. The Joint Sections must therefore clarify whether "the prerequisite for the establishment of an obligation to pay compensation is that all the remedies that the legal system provides against the jurisdictional measure allegedly causing damage have been exhausted beforehand".

The Court made it clear that there are no precedents on the subject in EU case law or in the case law of legality. The answer to the question therefore has clear value and is bound to have repercussions in many judgments.