JUDGMENT NO. 40
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Francesco Saverio MARINI,
has pronounced the following
JUDGMENT
in the constitutional legitimacy review proceedings concerning Article 6, paragraph 2-bis, of Legislative Decree of August 18, 2015, no. 142 (Implementation of Directive 2013/33/EU laying down minimum standards for the reception of applicants for international protection, and Directive 2013/32/EU on common procedures for the granting and withdrawal of international protection status), as introduced by Article 1, paragraph 2-bis, letter a), of Law Decree of March 28, 2025, no. 37 (Urgent provisions for combating irregular immigration), converted, with amendments, into Law of May 23, 2025, no. 75, initiated by the Court of Cassation, first criminal section, upon the appeal filed by M. N., with an order dated September 4, 2025, registered under no. 188 of the register of ordinary rulings of 2025 and published in the Official Gazette of the Republic no. 41, first special series, of the year 2025.
Having seen the deed of constitution of M. N., as well as the deed of intervention of the President of the Council of Ministers;
having heard Judge Rapporteur Francesco VIGANÒ in the public hearing of January 27, 2026;
having heard the lawyer Salvatore Fachile for M. N. and the State attorney Lorenzo D’Ascia for the President of the Council of Ministers;
deliberated in the council chamber of January 27, 2026.
Facts of the Case
1.– By an order dated September 4, 2025, registered under no. 188 of the ordinary register of 2025, the Court of Cassation, first criminal section, raised questions of constitutional legitimacy concerning Article 6, paragraph 2-bis, of Legislative Decree of August 18, 2015, no. 142 (Implementation of Directive 2013/33/EU laying down minimum standards for the reception of applicants for international protection, and Directive 2013/32/EU on common procedures for the granting and withdrawal of international protection status), as introduced by Article 1, paragraph 2-bis, letter a), number 1), of Law Decree of March 28, 2025, no. 37 (Urgent provisions for combating irregular immigration), converted, with amendments, into Law of May 23, 2025, no. 75, "insofar as it provides that, in the event of non-validation of the detention order issued pursuant to paragraph 3 of the same Article 6 against the applicant who submitted the application in a centre referred to in Article 14 of Legislative Decree of July 25, 1998, no. 286, the applicant shall remain in the centre until the decision on the validation of the detention order possibly issued by the Quaestor.”
The provision is challenged with reference to Articles 3, 13, 24, and 111, as well as Article 117 of the Constitution, the latter in relation to Article 5 of the European Convention on Human Rights, Article 3 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, Article 9 of the International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations General Assembly on December 16, 1966; and Articles 11 and 117 of the Constitution, in relation to Article 6 of the Charter of Fundamental Rights of the European Union.
1.1.– Regarding the facts, the referring Section reports:
– that by an order dated April 28, 2025, validated on the same day by the Justice of the Peace of Bari, the Quaestor of Ancona ordered, pursuant to Article 14, paragraph 1, of Legislative Decree of July 25, 1998, no. 286 (Consolidated Text of provisions concerning the discipline of immigration and rules on the status of foreigners), the detention of the foreign citizen M. N. in the Repatriation Assistance Centre (CPR) of Bari, pending the execution of the expulsion from the national territory, ordered on May 20, 2016, by the Prefect of Pescara;
– that on May 9, 2025, the transfer of the interested party to the CPR of Gjader, in Albania, was ordered;
– that on June 14, 2025, from the transit area of Schengjin, he submitted an application for international protection, rejected by the Territorial Commission of Rome on June 30, 2025;
– that on the same day, June 30, 2025, the Quaestor of Rome ordered the detention of M. N. in the CPR of Gjader, requesting its validation, pursuant to Article 6, paragraph 3, of Legislative Decree no. 142 of 2015;
– that on July 4, 2025, the Court of Appeal of Rome denied the validation of this detention order, expressing doubts about the compatibility of the domestic legislation with European Union law;
– that in the meantime, M. N. had submitted, from the CPR of Gjader, a new application for international protection, rejected by the Territorial Commission of Rome by order of July 2, 2025 (the appeal deadlines for which were pending at the time of the appeal to the Court of Cassation);
– that on July 5, 2025, the Quaestor of Bari issued a new detention order for M. N., this time at the CPR of Bari, pursuant to Article 6, paragraphs 2 and 2-bis, of Legislative Decree no. 142 of 2015, for a period of sixty days, extendable, considering the interested party socially dangerous, due to the existence of convictions against him for attempted homicide and for "multiple violations of the law regarding the sale of narcotic substances”;
– that on July 9, 2025, this latter detention was validated by the Court of Appeal of Bari, based on the four-fold finding: a) that the foreigner constituted a danger to public order and security, in consideration of his multiple criminal records for the crimes of attempted homicide, resisting a public official, bodily harm, production and trafficking of narcotic substances, theft; b) that the interested party did not have a right to family reunification, in the presence of a mere sentimental relationship in Italy and the stated intention to marry; c) that his health conditions were compatible with remaining in a CPR; d) that the alternative measures to detention provided for by Article 14, paragraph 1-bis, of Legislative Decree no. 286 of 1998, were not applicable, the foreigner being without identification documents and homeless;
– that M. N. lodged an appeal with the Court of Cassation, raising a series of grievances (validation of a detention order lacking motivation; failure to assess the concrete and current social dangerousness of the interested party; illegitimacy of the underlying acts of detention; violation of the right to family unity) and reiterating the question of constitutional legitimacy – already raised before the Court of Appeal of Bari and dismissed by it without reasoning on the point – of Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015, insofar as it contrasts with Article 13 of the Constitution by requiring the applicant to remain in the CPR even in the event of non-validation of the detention order.
1.2.– Having stated the foregoing, the referring Section deems the doubt regarding the constitutional legitimacy of Article 6, paragraph 2-bis, not manifestly unfounded, according to which "[t]he non-validation of the detention order issued pursuant to paragraph 3 against the applicant who has submitted the application in a centre referred to in Article 14 of Legislative Decree of July 25, 1998, no. 286, does not preclude the eventual subsequent issuance of a detention order pursuant to paragraph 2, if the prerequisites are met. When the order pursuant to paragraph 2 is issued immediately or, in any case, no later than forty-eight hours from the communication of the non-validation referred to in the first period, the applicant remains in the centre until the decision on the validation of the aforementioned order.”
1.2.1.– The referring judge premises that detention constitutes a restrictive measure of personal liberty (citing this Court's judgment no. 96 of 2025, as well as Court of Cassation, first criminal section, judgments of April 22, 2025, no. 15757, no. 15754, no. 15751, no. 15747, and order of March 7, 2025, no. 9556).
The referring Section also refers to the report on Law Decree no. 37 of 2025, as converted, prepared by the Office of the Summary and Roll of the Court of Cassation, which, in analysing the contents of the newly introduced Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015, outlined the relevant Union framework, consisting of Article 15, paragraphs 1, 2, second subparagraph, 4, 5, and 6, of Directive 2008/115/EC of the European Parliament and of the Council of December 16, 2008, laying down common standards and procedures applicable in Member States to the return of third-country nationals whose stay is irregular; Articles 8, paragraphs 2 and 3, and 9, paragraphs 1, 2, 3, and 4, of Directive (EU) 2013/33 of the European Parliament and of the Council of June 26, 2013, laying down minimum standards for the reception of applicants for international protection, and Article 28, paragraphs 2, 3, and 4, of Regulation (EU) 604/2013 of the European Parliament and of the Council of June 26, 2013, establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. Under these instruments, a third-country national may not be detained if a less coercive measure can be applied, and where the grounds for the lawfulness of detention are or are no longer present, he must be released immediately (citing Court of Justice of the European Union, judgment of November 8, 2022, joined cases C-704/20 and C-39/21, Staatssecretaris van Justitie en Veiligheid, paragraphs 78 and 79).
1.2.2.– The challenged Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015, insofar as it provides for the applicant for international protection to remain in the CPR even in the event of non-validation of the detention ordered pursuant to Article 6, paragraph 3 (i.e., if there are founded reasons to believe that the application for international protection was submitted solely for the purpose of delaying or preventing the execution of the expulsion or rejection order), and pending the eventual issuance of a further detention order, this time pursuant to paragraph 2 of the same article (due to dangerousness or risk of flight), would contrast with Article 13 of the Constitution, which protects personal liberty as an expression of every person's dignity. The provision indeed states that "[a] detention order which is declared by the judge to have been unlawfully issued [...] is not followed by the immediate release of the interested party, but may retain the residual capacity to justify the migrant's continued presence in the Repatriation Centre for a subsequent period of time, even a long one; this is pending the Quaestor’s decision, possibly, to issue a new detention order.”
In the time lapse between the non-validation of the detention under Article 6, paragraph 3, and the issuance of the detention order under Article 6, paragraph 2, a deprivation of personal liberty "ordered directly by the law” would thus arise, in contrast with the jurisdictional reservation provided for in Article 13, second paragraph, of the Constitution, and aimed at "allowing, in any case, the necessary judicial review regarding the conformity of the concrete situation with the paradigmatically established cases of ordinary law” (Constitutional Court judgments).
1.2.3.– The challenged provision would also be contrary to Article 3 of the Constitution: a) because, in a "manifestly irrational” manner, it would deprive an individual of his personal liberty "in the absence of an explicit order from the authority”; b) because, in contrast with the principle of equality, it would allow "the restriction ex lege of personal liberty of an individual only because he is already in a repatriation centre – moreover on the basis of an order judged unlawful and, therefore, not validated by the judicial authority – unlike those who are free or have been released, but susceptible to a detention order by the Quaestor,” and would imply "for the subjects indicated by the norm, an indiscriminate and total denial of relevance to the principle of jurisdictional reservation in the matter of personal liberty”; c) because, in disregard of the standard of reasonableness, it limits a fundamental right of the person, as occurred in the specific case, where the appellant was detained in the CPR, based on the challenged provision and in the absence of an administrative or judicial order, from July 4, 2025, until the issuance of the order under Article 6, paragraph 2, of Legislative Decree no. 142 of 2015, on July 5, 2025.
1.2.4.– Referring to this Court's judgment no. 96 of 2025, the referring judge holds that the challenged Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015 also violates Article 117, first paragraph, of the Constitution, in relation to:
– Article 5 ECHR, which "requires that arrest and detention ordered in the course of expulsion proceedings be ‘lawful’, meaning in conformity with the Convention provisions which grant only the judicial authority and, in cases of urgency, the police authority, the power to arrest and detain a person,” thus requiring that "the deprivation of personal liberty be provided for by law (in conformity with the Convention), but not ordered by the legislator, but rather by a judge”;
– Article 3 of the Universal Declaration of Human Rights, which grants everyone the right to life, liberty, and security of person, "in relation to Article 8 of the same Declaration as regards judicial protection”;
– Article 9 ICCPR, which guarantees the right to liberty and security and stipulates that no one shall be arbitrarily arrested or detained, nor shall anyone be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law;
– Article 6 CFREU (the latter also in relation to Article 11 of the Constitution), which also enshrines the right to liberty and security.
1.2.5.– Finally, the referring judge holds that "the provision under review renders ineffective, and therefore unlawful according to the provisions of the international acts and agreements referred to above, as well as under Articles 13, 24, and 111 of the Constitution, the judicial protection successfully obtained by the appellant, at the moment when he obtained the judicial decision not to validate the detention order,” in disregard of constitutional jurisprudence which considers Article 24 of the Constitution violated whenever "the legislator substantially nullifies the judicial remedy, understood as a means to the end of the realization of a pre-existing right” (citing this Court's judgments no. 159 of 2023, no. 186 of 2013, and no. 364 of 2007).
1.3.– Furthermore, the challenged provision is not capable of being interpreted in a constitutionally oriented manner, the literal wording, and specifically the use of the indicative mood "permane” (remains), referring to the detention of the foreign citizen in the CPR, precluding such an interpretation.
1.4.– As regards the relevance of the questions, the referring Section premises that the object of the appeal to the Court of Cassation is the decision of the Court of Appeal of Bari of July 9, 2025, validating the detention of M. N. ordered on July 5, 2025, pursuant to Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015, observing that the detention "finds its legal basis in the rejection of the previous request for validation, without the aforementioned negative decision having been followed by the release of the foreign citizen”; thus, the constitutional illegitimacy of Article 6, paragraph 2-bis, would affect not only the legality of the deprivation of personal liberty of the interested party in the time lapse between July 4 and July 5, 2025, but also the detention order of July 5 and the decision to validate it.
Recalling the constitutional jurisprudence on the merely "external” nature of this Court's review of the relevance of the questions submitted to it, the referring judge observes that the challenged detention order "postulates the verification of the prerequisites indicated in paragraph 2 of Article 6” of Legislative Decree no. 142 of 2015, but "finds its normative anchor in the provision of Article 6, paragraph 2-bis,” because "only because this is expressly provided for by paragraph 2-bis can the Quaestor issue a new validation order, after the non-validation of the asylum seeker’s detention”; thus, "the administrative order [...] finds its normative origin within the procedure introduced precisely by the provision subject to the doubt of constitutionality which [...] rests, with an inseparable functional and structural link, on the (unlawful) continuation of the previously ordered and non-validated detention.”
The legislator has indeed identified, with Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015, "a distinct and separate procedural pattern” of detention, characterized by the existence of both the requirements set by paragraph 2 of the provision, and the "‘de facto’ continuation, but legally imposed, of the applicant in the [...] facility”; a continuation characterized "in terms of strict necessity, in the presence of the negative prerequisite constituted by the non-validation of the detention” and "in view of the execution of the further and eventual order of the Quaestor,” albeit "in disregard of the Union provisions (Article 15, paragraph 2, fourth subparagraph, and paragraph 4, of Directive 2008/115/EC; Article 9, paragraph 3, second subparagraph, of Directive 2013/33/EU).”
It would thus follow that "the assessment of the lawfulness of such continuation [in the CPR] – or rather, more precisely, of the norm that authorizes it – forms the object of the validation judgment of the subsequent detention order” and that "the validation of the detention (object of the appeal), precisely because it interfaces with a ‘new’ single procedure (detention ex lege and new detention), cannot retroactively legitimize (inadmissibly) the restriction of personal liberty determined by the unjustified continuation in the centre under the non-validated detention, so that the detention order itself, which [...] rests on this unlawful state of deprivation of personal liberty, must be considered unlawfully issued.”
Hence the relevance of the questions, to be assessed also in light of the need to immediately submit to the review of this Court provisions discordant with the constitutional norm protecting personal liberty.
1.5.– The referring judge further specifies that it is not possible to order the release of the interested party pending the constitutional challenge, because on the one hand there are no peremptory deadlines within which to decide on the appeal against the validation order issued by the Court of Appeal; on the other hand, it would not be possible to connect the constitutional challenge to a loss of efficacy of the detention, as this is "determined by law, as well as, on the practical and implementing side, by the specific order not annulled.”
1.6.– Finally, the referring judge acknowledges that the same first criminal section of the Court of Cassation, by order of May 29-June 20, 2025, no. 23105, made a preliminary reference, pursuant to Article 267 of the Treaty on the Functioning of the European Union, asking the Court of Justice whether Directive 2008/115/EC and in particular its Articles 3, 6, 8, 15, and 16 preclude a provision, such as that contained in Article 3, paragraph 2, of Law of February 21, 2024, no. 14 (Ratification and execution of the Protocol between the Government of the Italian Republic and the Council of Ministers of the Republic of Albania to strengthen cooperation on migration matters, done in Rome on November 6, 2023, as well as coordination rules with domestic law), which allows persons subject to detention orders validated or extended pursuant to Article 14 of Legislative Decree no. 286 of 1998 to be taken to the areas referred to in Article 1, paragraph 1, letter c), of the said Protocol; and, if the answer to this question is negative, whether Article 9, paragraph 1, of Directive (EU) 2013/32 (of the European Parliament and of the Council of June 26, 2013, laying down common procedures for granting and withdrawing international protection status) precludes a provision such as that laid down by Law no. 14 of 2024, which allows the detention, in one of the aforementioned areas, of a migrant subject to an expulsion order, who, having been taken to the latter areas, has submitted an application for international protection, on the grounds of the deemed instrumental nature of the protection application.
The referring Section specifies that it does not deem it necessary to suspend the a quo proceedings pending the decision of the Court of Justice, on the one hand because "[t]here is a case involving an act which appears to be of unequivocal interpretation and undisputed understanding, while acknowledging the ascertained tension with constitutional principles”; and on the other hand, because the questions of constitutional legitimacy are "preliminary to any question of compatibility with supranational rules,” due to their direct relevance to the "status libertatis and habeas corpus, principles of primary constitutional relevance which must find immediate protection,” considering also that the challenged norm finds "no basis in Union law.”
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney’s Office, requesting that the questions be declared inadmissible or unfounded.
2.1.– Inadmissibility (manifest) would derive, first of all, from the lack of relevance of the questions: there would be "no link between the ‘extension’ of the detention and the subsequent (and only eventual) detention order,” which could be issued regardless of the application of the challenged paragraph 2-bis. The latter paragraph could "be considered ‘linked’ to the discipline of the (previous) non-validated order, extending its effects for another 48 hours: but neither the previous order, nor the continuation of its effects restricting personal liberty, are the subject of the a quo proceedings.” Furthermore, the referring court attributes the constitutional illegitimacy of Article 6, paragraph 2-bis, not to the order whose validation is being discussed in the main proceedings, but to the provision for a restriction of personal liberty operating ex lege.
The questions would also be inadmissible due to insufficient reasoning regarding the non-manifest unfoundedness, as the referring Section limited itself to stating the content of the constitutional parameters invoked and the supranational and international interposing norms, without arguing the reasons for the conflict with them of the challenged provision.
2.2.– On the merits, the questions would be unfounded.
2.2.1– Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015 would aim to avert the danger that subjects potentially dangerous – like the appellant in the a quo proceedings – might "instrumentalise the application for international protection by relying [...] on the suspension of the denial of protection [...] and the subsequent release from the centre once such suspension is obtained.”
The legislator, "to allow the formalisation of a detention on other grounds, due to dangerousness,” would have "intervened to ‘justify’ the detention in the centre until the issuance of a subsequent detention, which must, however, occur within 48 hours: thus reasonably balancing the detention provided for by law, which cannot exceed 48 hours, and the public interest in not releasing a potentially dangerous subject.” Legislative discretion would have been exercised without exceeding the limit of manifest arbitrariness and irrationality (citing this Court's judgments no. 172 of 2012, no. 88 of 2023, and no. 208 of 2023). The maximum term of detention, equal to forty-eight hours, would have been identified precisely in compliance with "evident needs for expedition” and "as a guarantee for the recipient of the restrictive measure.”
The legislator would therefore have "intended to regulate the status libertatis in the time between the submission of the application for international protection and its preliminary examination by the administrative authority, as regards the eventual continuation, in the cases indicated by law, of the restriction in progress,” while ensuring the foreign citizen "all the guarantees provided for by the Constitutional Charter,” so that the inviolability of personal liberty under Article 13 of the Constitution is not infringed, and the challenged provision would result as "reasonable and proportionate” according to the measure of Article 3 of the Constitution.
2.2.2.– The intervening party refers to the judgment no. 15747 of 2025 of the Court of Cassation, according to which, if the foreign citizen detained in a CPR pending expulsion submits an application for international protection, a new detention order is indeed necessary, due to the change in the title of the restriction of personal liberty, but no peremptory deadlines are provided for its issuance, except for validation within the time limits imposed by Article 13 of the Constitution and provided that the maximum duration limits of detention are not exceeded. In the specific case, relating to the different hypothesis of "ineffectiveness of the first detention order issued due to the manifest unfoundedness of the application,” the legislator would have instead provided, with the challenged paragraph 2-bis, precise deadlines for the issuance of the second detention order.
2.2.3.– Furthermore, the Court of Cassation would have held that Council Directive 2003/9/EC of January 27, 2003, laying down minimum standards for the reception of asylum seekers in Member States, and Council Directive 2005/85/EC of December 1, 2005, laying down minimum standards for procedures applied in Member States for the granting and withdrawal of refugee status, do not preclude a third-country national, who has submitted an application for international protection after his detention was ordered under Article 15 of Directive 2008/115/EC, from continuing to be detained on the basis of a rule of domestic law if it appears, following an individual assessment of all relevant circumstances, that the application was submitted solely for the purpose of delaying or frustrating the execution of the return decision and that it is objectively necessary that the detention order be maintained in order to prevent the interested party from permanently evading his return (citing Court of Cassation, sixth civil section-1, order of July 26, 2018, no. 19819).
Article 8, paragraph 3, letter d), of Directive 2013/33/EU would also allow Member States to detain an applicant for international protection already detained pending return if they can prove, based on objective criteria (including the fact that the person concerned has already had the opportunity to access the asylum procedure), that the application is frivolous. The aforementioned Directive would indeed provide for the judicial authority's review of the lawfulness of the detention ordered by the administrative authority, but leave to the Member States the deadline by which this must occur and generally require that the period of detention be "as short as possible.” Thus, "The Italian State’s position, by virtue of its constitutional norms,” would be "more protective than that of the Directive.”
2.2.4.– Finally, as regards the facts, the intervening party states that the Court of Appeal of Bari, on September 12, 2025, after the raising of the questions of constitutional legitimacy by the Court of Cassation, ordered the immediate release of M. N., with an invitation to report, pursuant to Article 15 of Royal Decree of June 18, 1931, no. 773 (Approval of the consolidated text of public security laws) to the public security authority (specifically, the Quaestor's Office of Ancona); and that the interested party, on September 17, 2025, was reported by the Rimini Quaestor's Office for resisting a public official and refusing to provide information on his personal identity.
3.– M. N. constituted himself in the proceedings, requesting the acceptance of the constitutional legitimacy questions and reserving the illustration of his arguments for a subsequent brief.
The latter, filed close to the public hearing, argues the well-foundedness of the questions in relation to all the parameters invoked by the referring court.
3.1.– The second sentence of the challenged Article 6, paragraph 2-bis, would be in "direct contrast” with Article 13 of the Constitution, which legitimizes the deprivation of personal liberty only by virtue of an express order, which must be communicated to the judicial authority within forty-eight hours to be validated within the following forty-eight hours. The challenged provision, instead, "expressly allows the asylum seeker to be subjected to a de facto deprivation of personal liberty for up to 48 hours and that the validation of the order may occur up to 144 hours (and not 96) after the application of such measure (48 hours of de facto detention, followed by the issuance of detention + 48 hours to request validation + 48 within which detention must be validated).”
This fact would establish the relevance of the questions, since in the detention validation proceedings the referring judge should verify that "these strictly predetermined time limits [by Article 13 of the Constitution] are respected and therefore that from the moment the deprivation of personal liberty is carried out to the moment the detention order is submitted for validation [...] no more than 48 hours elapse”; a condition not met in the present case, since the appellant’s detention "was submitted to the judicial authority for validation well over 48 hours after its execution,” precisely by virtue of the provision challenged by the Court of Cassation.
3.2.– Article 117, first paragraph, of the Constitution would also be violated, in relation to Article 5 ECHR. According to the jurisprudence of the European Court of Human Rights (citing the Grand Chamber judgment of January 29, 2008, Saadi v. United Kingdom), the detention of a foreign citizen is compliant with the Convention guarantee only if provided for by law, carried out in conformity with domestic law and not applied in bad faith, corresponding to one of the general interest grounds that legitimize the restriction of fundamental rights in the Convention system, and respecting the principle of proportionality. The measure must also have a reasonable duration and must not be vexatious or afflicting in nature.
The ECtHR would have, in particular, deemed the "de facto” detention of the foreign citizen in border transit areas for a period of five days contrary to Article 5, paragraph 1, letter f), ECHR, for the purpose of an initial assessment of the international protection application, without the prerequisites for the measure being precisely determined and without its immediate challenge being allowed (citing the judgment of November 27, 2008, Rashed v. Czech Republic).
Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015, conversely, would not determine the factual and legal prerequisites on the basis of which the public security authority could issue the new detention order for the foreign citizen after the non-validation of the detention under Article 6, paragraph 3 (non-validation which could also be based on "an ascertained unsuitability for detention”). The challenged provision would thus constitute detention as an "automatism sanzionatorio sine titulo,” irrespective of the actual social dangerousness of the interested party or the concrete risk of his flight, pending the assessment of the international protection request, whereas detention should be an extrema ratio measure.
The residual nature of detention – in addition to the need for a detailed legal framework for its prerequisites and judicial review – would emerge from the guiding principles contained in the EC Commission report on immigration and refugees in Europe of January 11, 2010, cited as the relevant standard in the interpretation of Article 5, paragraph 1, letter f), ECHR by Resolution no. 1707(2010) of the Parliamentary Assembly of the Council of Europe of January 28, 2010.
In light of these standards, the challenged Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015 reveals "its most total irrationality, illogicality and disproportion, if not even its intrinsic irrationality”: the non-validation of the detention by the judicial authority demonstrates the lack of factual and legal prerequisites to order it, so that it cannot be extended or further ordered by the public security authority, which should instead order an alternative measure.
3.3.– The detention provided for by the challenged provision could not be used – as the State Attorney's Office opines – as a measure to contain the social dangerousness of the foreigner, as this function belongs to the penalty or security measure; all the more so as nothing would prevent the public security authority from immediately requesting, after the interested party's application for international protection, his detention pursuant to paragraph 2 of Article 6, i.e., on the grounds of his danger to public order and security (letter c), or the need to acquire the elements on which the application is based and the risk of flight (letter d), instead of his detention under Article 6, paragraph 3, for the deemed frivolous nature of the international protection application.
3.4.– The challenged norm would also be affected by "absolute indeterminacy,” establishing neither the reasons for the ex lege extension of the deprivation of the foreigner's personal liberty after the non-validation of the detention under Article 6, paragraph 3, nor clarifying whether the prerequisites on which the public security authority can order the further detention under Article 6, paragraph 2, must consist of circumstances that emerged after the non-validation, or of circumstances not reported to the validation judge and therefore not assessed by him.
In the specific case – the party observes – the alleged social dangerousness of M. N. was raised by the public security authority before the Court of Appeal of Rome, in the validation proceedings for the detention under Article 6, paragraph 3, and was nevertheless not deemed sufficient for validation.
3.5.– Finally, the challenged provision would contrast with Articles 3 and 24 of the Constitution. The punitive automatism determined by it would lead to "completely nullifying the right of defence exercised by the counsel for the detainee who, after having obtained the non-validation, finds, as a consequence of the application of the relevant norm, his client remaining in a state of restricted personal liberty, without, moreover, being able to access the judicial authority in any way to cease this ‘detention tail’.”
Indeed, the judge who does not validate the detention under Article 6, paragraph 3, could not prevent the further "de facto” detention ordered by the challenged paragraph 2-bis, so that the counsel for the foreign citizen could not submit a request to him to that effect. The referring Section correctly highlighted the existence of a "judicial free zone [...] also in the matter of restriction of personal liberty.”
Thus, in addition to a violation of the right of defence, the challenged provision would create "a sort of legal black hole,” demonstrating the "legislator's intention to act in ‘bad faith’,” by inserting into the legal system a norm solely aimed at "allowing the competent public security authority sufficient time to request a new detention validation, without the foreigner, although declared free by the judicial authority, being able to leave the CPR in the meantime.”
The challenged provision, given its indeterminacy, would also produce "the effect of diverting the foreign citizen from his natural judge, allowing inadmissible forum shopping by the administration, which – having obtained a negative order from a judge – can proceed to order detention elsewhere and then turn to a different judge.”
In this case too, in fact, after the detention of M. N. at the CPR of Gjader, in Albania, ordered by the Quaestor of Rome, was not validated by the Court of Appeal of Rome, the new detention was ordered by the Quaestor of Bari, with the consequent shift in jurisdiction for the validation judgment to the Court of Appeal of Bari, therefore to a judge "identified based on a discretionary choice of the public administration, which was thus able to request validation from a judge other than the one who had already ruled.”
4.– The Union of Italian Criminal Chambers (UCPI), Antigone Onlus, Spazi Circolari, and ActionAid International Italia Onlus filed opinions as amici curiae, pursuant to Article 6 of the Supplementary Rules for proceedings before the Constitutional Court, admitted by presidential decree of December 5, 2025, expressing support for the acceptance of the constitutional legitimacy questions.
The arguments put forward by the amici curiae can be summarized as follows.
4.1.– Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015 operates as a sort of "reinstatement” of the Quaestor for the issuance of a new detention order, following the non-validation of the first. Conceived to legitimize the transfer of applicants for international protection to Italy in the event of non-validation of detentions ordered at the CPR of Gjader, in Albania, under the Protocol between the Government of the Italian Republic and the Council of Ministers of the Republic of Albania to strengthen cooperation on migration matters, the challenged provision is used almost systematically in this context, in order to "force” a system with respect to which the Court of Cassation has already highlighted, with order no. 23105 of 2025, doubts about conformity with Union law. The legislator would have, therefore, inserted into the legal system a judicial free zone, solely for the purpose of allowing the public security authority sufficient time to request a new validation of the detention, without the foreigner, although declared free by the judicial authority, being able to leave the CPR in the meantime. The legislator's intent – which is to prevent dangerous subjects from being released due to the non-validation of detention, thus satisfying criminal prevention and public security needs – should be pursued through the adoption of the preventive measures regulated by Legislative Decree of September 6, 2011, no. 159 (Code of anti-mafia laws and preventive measures, as well as new provisions on anti-mafia documentation, pursuant to Articles 1 and 2 of Law of August 13, 2010, no. 136) and cannot be achieved with the detention provided for by the challenged provision.
4.2.– The latter would conflict with Article 13 of the Constitution because it legitimizes a detention operating ex lege, without any formal act, neither administrative nor judicial, and without the legitimizing prerequisites for the measure being indicated, introducing an automatism that eludes the logic of extrema ratio for the deprivation of personal liberty at the basis of the constitutional guarantee. The temporal barrier provided for by Article 13, third paragraph, of the Constitution would also be violated, since under Article 6, paragraph 2-bis, the compression of personal liberty sine titulo could extend up to 240 hours (48+48+48+48+48). The risk of instrumental use of this legal mechanism would be evident, as it would allow the public security authority to reiterate detention orders sine die, leaving the applicant for international protection in a sort of legal limbo, at the disposal of the public security authority. The logical-legal mechanism governing restrictions on personal liberty would thus be subverted, insofar as "detention is established pending the identification and explicit statement of the reasons justifying it” (opinions of Spazi Circolari and ActionAid International Italia Onlus). The foreign citizen, despite being the recipient of a favourable order, would not be released, nor informed of the reasons for remaining in the CPR, and would not have the possibility to challenge the lawfulness of the measure before a judge.
4.3.– The challenged paragraph 2-bis would also produce an unjustified disparity of treatment for asylum seekers compared to other persons subjected to personal liberty restrictions, such as arrest or police custody, who cannot be deprived of personal liberty without an individual order.
4.4.– The absence of effective and timely review of detention – which cannot be challenged, not even under Article 700 of the Code of Civil Procedure, because it is ordered directly by law and not by an act of the public security authority – would also constitute a violation of the right of defence under Article 24 of the Constitution and the principle of a fair trial under Article 111 of the Constitution, as well as failing to ensure effective judicial protection, as required by Articles 5, paragraph 4, ECHR and 47 CFREU. The ex lege extension of detention would indeed nullify the result obtained by the interested party in exercising the right of defence, namely the non-validation of the first detention order, which should, instead, be followed by immediate release.
4.5.– There would also be a violation of Article 117, first paragraph, of the Constitution, in relation to Article 5, paragraphs 1, letter f), 2, and 4, ECHR, which require that the detention of a foreign citizen, aimed at preventing irregular entry into the national territory or expelling him, be in conformity with the principle of legality, not arbitrary and proportionate; that it not be vexatious or afflicting in nature, and that it be based on a regulatory framework sufficiently accessible, clear, and precise, which makes its application predictable. The detention provided for by Article 6, paragraph 2-bis, would indeed realize a form of extra ordinem detention, similar to those already challenged by the ECtHR in the judgments of March 30, 2023, J.A. and Others v. Italy, Grand Chamber, December 15, 2016, Khlaifia v. Italy, and the aforementioned Saadi v. United Kingdom.
4.6.– Also from the perspective of European Union law, the challenged Article 6, paragraph 2-bis, would authorize arbitrary detention, contrary to Directives 2013/33/EU and 2008/115/EC – according to which detention must be limited, necessary, proportionate, and authorized by a judicial authority or in any case subject to its review – and would thus conflict with Article 117, first paragraph, of the Constitution.
4.7.– Finally, there would be a conflict with Articles 5 ECHR, 3 of the Universal Declaration of Human Rights, 9 ICCPR, and 6 CFREU; provisions which all establish the right of every individual to liberty and security.
Considered in Law
5.– With the order quoted above, the Court of Cassation, first criminal section, raised questions of constitutional legitimacy concerning Article 6, paragraph 2-bis, of Legislative Decree no. 142 of 2015, introduced by Law Decree no. 37 of 2025, as converted, insofar as it provides that, in the event of non-validation of the detention order issued pursuant to paragraph 3 of the same Article 6 against the applicant who has submitted an application for international protection in a centre referred to in Article 14 of the consolidated text on immigration, the applicant shall remain in the centre until the decision on the validation of the detention order possibly issued by the Quaestor.
This provision would violate Articles 3, 13, 24, 111, and 117, first paragraph, of the Constitution, the latter in relation to Article 5 of the European Convention on Human Rights, Article 3 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, and Article 9 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on December 16, 1966. It would also be in contrast with Articles 11 and 117, first paragraph, of the Constitution, in relation to Article 6 of the Charter of Fundamental Rights of the European Union.
6.– For a better understanding of the questions, it is appropriate to outline the essential features of the – admittedly complex – legal framework in which they are situated.
As more fully illustrated above, point 1.1, the a quo proceedings originate from an appeal to the Court of Cassation against the decision of the Court of Appeal of Bari which validated a detention order of a foreigner in a Repatriation Assistance Centre (CPR).
The foreigner in question had submitted two applications for international protection while in the CPR of Gjader (Albania) under a previous detention order, issued by the Quaestor of Ancona and validated at the time by the competent Justice of the Peace, pending the execution of an expulsion order.
Following his application for international protection, the Quaestor of Rome issued a second detention order, based on the frivolous nature of the application. This order, however, was not validated by the territorially competent Court of Appeal of Rome.
As the foreigner had, in the meantime, been transferred to the CPR of Bari, the local Quaestor then issued a third detention order, motivated by the danger to public order and security constituted by the foreigner, as well as the risk of his flight. The validation of this order is precisely the subject of the appeal to the Court of Cassation in the a quo proceedings.
In these proceedings, the interaction between the detention orders issued within the scope of two different legal frameworks concerning a citizen of a non-EU country comes into play: on the one hand, that relating to the expulsion procedure (or "return,” in EU law terminology); on the other, that relating to the procedure for granting international protection.
6.1.– Both frameworks are now largely conformed by European Union law, to which attention must first be turned.
6.1.1.– The procedure for the return of third-country nationals whose stay is, or has become, irregular is currently governed by Directive 2008/115/EC (the "Return” Directive), Articles 15-18 of which regulate the detention of foreigners against whom a return decision has been taken.
In particular, Article 15, paragraph 1, of the Directive – after clarifying that detention can only be ordered if other less coercive measures prove insufficient – states that such a measure may only be taken "to prepare for the return and/or carry out the removal, in particular when: a) there is a risk of absconding or b) the third-country national avoids or obstructs the preparation of the return or removal.”
Paragraph 2, letter a), then leaves it to the Member States to choose whether to provide for a "prompt judicial review of the lawfulness of the detention,” or the right of the foreigner to lodge an appeal with the judicial authority, so that it rules on the lawfulness of the detention as soon as possible.
6.1.2.– The measure of detention within the framework of the procedure for granting international protection finds its regulation, at the Union level, in Directive 2013/33/EU, now transposed into Directive (EU) 2024/1346 of the European Parliament and of the Council of May 14, 2024, laying down minimum standards for the reception of applicants for international protection, which repeals it from June 12, 2026.
Article 8 of Directive 2013/33/EU – after establishing, in paragraph 1, that detention cannot be ordered solely because the person concerned has applied for international protection – provides in paragraph 2 that such a measure may be ordered "[i]f necessary and on the basis of a case-by-case assessment,” and in any case "unless less coercive alternative measures can be applied effectively.” Paragraph 3 then specifically lists the (exhaustive) grounds for which an applicant for international protection may be detained, including – notably – the hypotheses in letters b) ("to determine the elements on which the application for international protection is based that could not be obtained without detention, in particular if there is a risk of the applicant absconding”) and e) ("when reasons of national security or public order require it”).
Letter d) of the same Article 8, paragraph 3, regulates the specific hypothesis – which arises in the a quo proceedings – in which the applicant for international protection is already detained within the framework of an expulsion procedure against him. In that case, further detention during the procedure for granting international protection is permitted if "the Member State concerned can prove, on the basis of objective criteria, including the fact that the person concerned has already had the opportunity to access the asylum procedure, that there are well-founded reasons to believe that the person has expressed the intention to submit the application for international protection solely for the purpose of delaying or preventing the execution of the return decision.”
With regard to this specific situation, the Court of Justice recently ruled that Directive 2008/115/EC is no longer applicable to a third-country national who has submitted an application for international protection during the period between the submission of such application and the adoption of the decision by the first-instance authority ruling on that application or, possibly, until the outcome of any appeal brought against that decision (CJEU, judgment of October 4, 2024, Case C-387/24, PPU, Bouskoura, paragraph 49, and further references therein). Therefore, the asylum seeker cannot be detained during the relevant procedure pursuant to Article 15 of the "Return” Directive, but only on the basis of the specific provisions of Union law concerning the asylum procedure, and particularly Article 8 of Directive 2013/33/EU.
However, the same judgment clarified that the return procedure remains only "temporarily inapplicable during the examination of the asylum application,” as it may well resume once the asylum application is rejected. This implies the possibility of adopting a detention measure based on the "Return” Directive as soon as the procedure for granting international protection concludes with a negative outcome for the foreigner, and the detention ordered under Directive 2013/33/EU therefore ceases, since "the purpose of Directive 2008/115, namely the effective return of third-country nationals whose stay is irregular, would be compromised if it were impossible for Member States to prevent the person concerned, by submitting an application, from automatically obtaining release” at the end of the detention (CJEU, Bouskoura judgment, paragraph 51).
6.2.– Turning now to the regulation of the two proceedings in the Italian legal system, it must first be noted that, according to the constant jurisprudence of this Court, any measure of detention of a foreigner constitutes a deprivation of personal liberty within the meaning of Article 13 of the Constitution (judgments no. 205 of 2025, point 6.3 of the Consideration in Law; no. 96 of 2025, point 9 of the Consideration in Law; no. 203 of 2024, point 4.1.1. of the Consideration in Law; no. 212 of 2023; no. 127 of 2022, point 4 of the Consideration in Law; no. 105 of 2001, point 4 of the Consideration in Law). It is therefore necessary that the administrative authority’s order adopting the measure be communicated to the judicial authority within forty-eight hours, and that the latter validates it within the following forty-eight hours, otherwise the order must be considered revoked and without any further effect.
6.2.1.– Regarding detentions ordered within the framework of expulsion procedures, regulated at the Union level by the "Return” Directive, they are governed in the Italian system by Article 14 of the Consolidated Text on Immigration, titled "Execution of Expulsion.”
Paragraph 1 provides that detention is ordered by the Quaestor "[w]hen immediate expulsion by accompanying to the border or rejection cannot be carried out,” while the subsequent paragraph 1-bis regulates other less coercive measures capable of ensuring the same purpose. Paragraphs 3, 4, and 4-bis regulate the validation procedure of the order by the competent territorial Justice of the Peace, with timeframes corresponding to those indicated in Article 13, third paragraph, of the Constitution. The subsequent paragraph 6 regulates the procedure for appeal to the Court of Cassation against decrees of validation (and extension) of detention (on this recently amended discipline, judgment no. 39 of 2025). Paragraph 5, finally, provides for a complex system of maximum terms for the duration of the detention itself.
6.2.2.– The detention of the foreigner during the procedure for granting international protection, regulated at the Union level by Directive 2013/33/EU, is instead regulated at the domestic level by Article 6 of Legislative Decree no. 142 of 2015.
After stating, in paragraph 1, the principle – of Union derivation – that the applicant cannot be detained solely for the purpose of examining his application, paragraph 2 lists the possible reasons justifying his detention in the same centres provided for by Article 14 of the Consolidated Text on Immigration (today, the CPRs). Among these reasons are specifically indicated – notably – danger to public order and security (letter c), as well as the risk of flight of the applicant (letter d).
The subsequent paragraph 5 regulates the validation procedure for detention (by the competent territorial Court of Appeal: on this competence, judgment no. 205 of 2025), also in this case with chronological steps corresponding to those indicated in Article 13, third paragraph, of the Constitution (forty-eight hours for the transmission of the order, and a further forty-eight hours for its validation). Paragraph 5-bis then provides for the possibility of appeal to the Court of Cassation against the validation order, by a mere reference to the parallel discipline of Article 14, paragraph 6, of the Consolidated Text on Immigration mentioned above.
The specific hypothesis, which arises in the a quo proceedings, in which the applicant for international protection is already detained within the framework of an expulsion procedure against him, is governed at the national level by a complex regulation by the combined provisions of paragraphs 2-bis, 3, and 5, last sentence, of the same Article 6 of Legislative Decree no. 142 of 2015.
Proceeding in logical and chronological order, rather than according to the sequence envisaged by the legislator, the last sentence of paragraph 5 of Article 6 of Legislative Decree no. 142 of 2015 provides that "[w]hen the detention [of the foreigner] is already in progress at the time the application is submitted,” the deadlines for the maximum duration of detention provided for by Article 14, paragraph 5, of the Consolidated Text on Immigration are suspended "and the Quaestor transmits the documents to the competent Court of Appeal for the validation of the detention for a maximum period of an additional sixty days, to allow for the completion of the examination procedure for the application.”
The text of the provision clearly shows the legislator's dual intention: a) to maintain the effectiveness of the first detention until the Quaestor's intervention following the application for international protection, and b) to require the Quaestor, during the procedure for examining the application, to issue a new, "secondary” detention order with respect to the first, with a maximum duration of sixty days.
Case law of the Court of Cassation has specified that, in this hypothesis, the forty-eight-hour deadline provided for in the first sentence of paragraph 5 for the transmission of the detention order to the judicial authority runs not from the date of the international protection application, but from the date on which the Quaestor actually issued the order (Court of Cassation, first civil section, order of December 29, 2023, no. 36522, based on what this same Court affirmed in judgment no. 212 of 2023, point 3 of the Consideration in Law). However, the deprivation of personal liberty of the foreigner between the time of submission of the application and the time of the Quaestor's "secondary” detention order does not remain without title, provided that the latter is transmitted to the competent judge for validation within forty-eight hours of its issuance and is validated within the following forty-eight hours (Cass., no. 15754 of 2025; Court of Cassation, first civil section, judgment of November 13-December 16, 2024, no. 32763). This is evidently because the persistence of the status detentionis is considered by the legislator as still legitimized by the original detention order, issued against the foreigner in the framework of the expulsion execution procedure. The provision does not clarify, moreover, the deadline within which the Quaestor must act, following the international protection application submitted by the foreigner, although case law has drawn on the deadlines provided for the registration of the international protection application set out in Article 26, paragraphs 2 and 2-bis, of Legislative Decree of January 28, 2008, no. 25 (Implementation of Directive 2005/85/EC laying down minimum standards for procedures applied in Member States for the granting and withdrawal of refugee status), to deduce the need for a prompt definition of the asylum seeker's legal position (Court of Cassation, first criminal section, judgment of July 10, 2025, no. 25541).
As for the reasons that may justify the "secondary” detention order subsequent to the international protection application, it may be issued, first of all, if the prerequisites referred to in the aforementioned paragraph 2, applicable to asylum seekers in general, are met: for example, because there is a danger to public order and security (letter c), or because there is a risk of flight of the applicant (letter d).
Paragraph 3 then provides a reason for detention specifically calibrated to the frivolous nature of the protection application submitted by a foreigner already detained pending expulsion: "[o]utside the hypotheses referred to in paragraph 2, the applicant who is in a centre referred to in Article 14 [Consolidated Text on Immigration], pending the execution of a rejection or expulsion order pursuant to Articles 10, 13, and 14 of the same Legislative Decree, shall remain in the centre when there are well-founded reasons to believe that the application was submitted solely for the purpose of delaying or preventing the execution of the rejection or expulsion” (emphasis added).
Despite the imprecise wording, paragraph 3 evidently requires the issuance of a new detention order ("secondary”) by the Quaestor, as can be inferred from the opening of paragraph 2-bis, which will be discussed immediately: "[t]he non-validation of the detention order issued pursuant to paragraph 3.” This new order corresponds, in essence, to the detention contemplated by the aforementioned Union legislation (Article 8, paragraph 3, letter d, of Directive 2013/33/EU) for the hypothesis of an asylum seeker already detained under the "Return” Directive and whose asylum application is deemed frivolous: an order that will at that point legitimize the further deprivation of the foreigner's personal liberty.
Both the orders under paragraph 2 and the one issued under paragraph 3 must be validated pursuant to paragraph 5, according to the chronological steps mentioned, modeled on those indicated in Article 13, third paragraph, of the Constitution (forty-eight hours for transmission to the Court of Appeal and a further forty-eight hours for its validation).
6.3.– It is precisely in this stage of the procedure that the possible application of paragraph 2-bis, the subject of the referring judge's challenges, arises.
In the event that, upon receiving the application for international protection, a) the Quaestor initially issued a "secondary” detention order pursuant to paragraph 3, on the grounds of the frivolous nature of the international protection application, but b) this order was not validated by the competent Court of Appeal, paragraph 2-bis allows the Quaestor to issue a new "secondary” detention order pursuant to paragraph 2, when the prerequisites for it are met (for example, danger to public order and security, or risk of flight). In that case, pursuant to the second sentence of the provision, "[w]hen the order pursuant to paragraph 2 is issued immediately or, in any case, no later than forty-eight hours from the communication of the non-validation referred to in the first period, the applicant remains in the centre until the decision on the validation of the aforementioned order” (emphasis added).
The interpretative premise from which the referring Court of Cassation proceeds is that this provision imposes an ex lege deprivation of liberty on the asylum seeker, extending from the moment the "secondary” order motivated under paragraph 3 due to the frivolous nature of the international protection application is not validated, up to the moment (within the maximum period of forty-eight hours) when the Quaestor issues a new order restricting personal liberty, based on one of the grounds provided for in paragraph 2.
This would produce, according to the referring judge, at least two consequences incompatible with Article 13, third paragraph, of the Constitution. Firstly, the challenged normative mechanism would determine a deprivation of liberty subsequent to the non-validation of the detention ordered under paragraph 3 and ordered directly by law rather than by an order of the judicial authority or the public security authority, as required by the constitutional norm. Secondly, the deprivation of personal liberty prior to the judicial authority's decision would result in being longer than the time limits imposed by Article 13 of the Constitution, including the time lapse (up to forty-eight hours) preceding the issuance of the new detention order under paragraph 2 by the Quaestor: a time lapse to which the forty-eight hours for the transmission of the order to the Court of Appeal and the further forty-eight hours provided for its decision by the latter must then be added.
7.– Having thus reconstructed the normative context in which the challenged provision is situated, the exceptions of inadmissibility formulated by the State Attorney’s Office must be examined.
The exception of lack of relevance of the questions is well-founded.
The referring Court of Cassation is, in fact, solely called upon to assess the prerequisites for the lawfulness of the decision of the Court of Appeal of Bari whereby the latter validated the detention ordered by the Quaestor of the same city pursuant to Article 6, paragraphs 2 and 2-bis, of Legislative Decree no. 142 of 2015. The limits of the devolutum for the referring judge coincide, therefore, with those of the validation proceedings conducted by the territorial court: a validation proceeding which only concerned the existence or not of the prerequisites invoked by the Quaestor's order of July 5, 2025, to support the detention measure, and particularly the existence of danger to public order and security and the risk of flight (Article 6, paragraph 2, letters c and d) which would have resulted from the non-restriction of the foreigner in a CPR.
The Court of Appeal of Bari was not called upon, instead, to rule on the lawfulness of the continuation of the foreigner's detention in the CPR for the time period preceding it, which elapsed between July 4, 2025 (the date on which the Court of Appeal of Rome did not validate the "secondary” detention order issued by the Quaestor of Rome on June 30, 2025, pursuant to paragraph 3) and July 5, 2025 (the date on which the Quaestor of Bari issued the new "secondary” detention order pursuant to paragraph 2). Consequently, the assessment of the lawfulness of this deprivation of liberty is not devolved to the Court of Cassation either.
Furthermore, the argument of the referring court, according to which the validation judgment for the detention would also concern the deprivation of liberty provided for ex lege for the period preceding the issuance of the very order to be validated, which would have become inseparably linked – by virtue of the challenged provision – to the subsequent one, does not pass the threshold of non-implausibility – to which, according to the constant jurisprudence of this Court, the review of the referring judge’s reasoning on the relevance of the questions raised is confined (inter alia, judgments no. 10 of 2026, point 13.1.3.; no. 154 of 2025, point 2 of the Consideration in Law).
The argument, although inspired by the understandable concern not to leave gaps in the protection of the fundamental right to personal liberty, is unconvincing. The validation proceeding, provided for by the legislation applicable in the a quo proceedings in direct fulfillment of the constitutional mandate, structurally concerns the verification of the existence in the concrete case of the exceptional prerequisites of necessity and urgency, exhaustively indicated by (ordinary) law, in the presence of which the public security authority may issue provisional orders restricting personal liberty (Article 13, third paragraph, Constitution). It does not, however, concern the verification of the constitutional legitimacy of a restriction of personal liberty derived, according to the referring judge's own reconstruction, directly from the law, and preceding the very issuance of the order whose legitimacy is being discussed in that proceeding.
This conclusion does not exclude that the conformity with the Constitution of the ex lege continuation, for a maximum period of forty-eight hours, of the status detentionis already based on two successive detention orders – the first of which duly validated by the judicial authority, but replaced by a second order issued after the start of the international protection procedure, and however not validated by the judicial authority – may likewise be challenged within the scope of different proceedings. As the State Attorney's Office observed in the hearing, among other remedies is a civil action aimed at ascertaining the unlawfulness of the detention and the immediate restoration of liberty (in this sense, judgment no. 212 of 2023, point 3 of the Consideration in Law), within which a question of constitutional legitimacy of the relevant discipline could be raised, possibly with a simultaneous request for an urgent measure pursuant to Article 700 of the Code of Civil Procedure (for a recent emphasis on the practicality of the latter remedy to safeguard the fundamental rights of persons detained in a CPR, judgment no. 96 of 2025, point 13 of the Consideration in Law; in the same sense, in conformity with what was argued by the Italian Government in the relevant proceedings, European Court of Human Rights, Grand Chamber, decision of April 29, 2025, Mansouri v. Italy, paragraphs 103-110, which considered the appeal inadmissible/inapplicable due to failure to exhaust domestic remedies precisely because of the failure to file, among others, an appeal under Article 700 of the Code of Civil Procedure against the alleged unlawful restriction of the foreigner's liberty).
8.– In any case, as already emphasized in judgment no. 275 of 2017 (point 4 of the Consideration in Law) regarding the related matter of rejection of foreigners at the border, the inadmissibility of the questions does not exempt this Court from recognizing the need for the legislator to intervene to review the discipline in this area.
The legislator's goal of preventing the mere submission of an application for international protection by a foreigner from automatically leading to the cessation of his detention pending the execution of an expulsion order is, obviously, entirely legitimate; and this is particularly true when the foreigner has committed serious crimes and may evade expulsion if released, as in the case subject to the a quo proceedings. This need is, moreover, duly addressed by Directive 2013/33/EU, whose Article 8, paragraph 3, provides, as already observed (supra, 6.1), for the possibility of ordering a new detention measure in the case of a frivolous application (letter d), subject to the further possibility of ordering his detention immediately also for a series of other reasons indicated therein, including danger to national security or public order (letter e), or risk of flight (letter b). Underlying this is evidently also the need to discourage possible abuses of the asylum procedure, in order to prevent this instrument – which is still of vital importance today for ensuring the protection of foreigners against persecution or other serious dangers in their country of origin – from being instrumentally used solely for the purpose of avoiding or delaying the execution of legitimate expulsion orders.
However, the aforementioned objective must be pursued through modalities fully compliant not only with Union law, but also with the requirements for the protection of personal liberty derivable, in our legal system, from Article 13 of the Constitution. This norm conditions any possible limitations on it towards citizens and foreigners to stringent procedural rules, as a guarantee against possible arbitrariness by the public security authority, the judicial authority, and the legislator itself.
for these reasons
THE CONSTITUTIONAL COURT
declares inadmissible the questions of constitutional legitimacy of Article 6, paragraph 2-bis, of Legislative Decree of August 18, 2015, no. 142 (Implementation of Directive 2013/33/EU laying down minimum standards for the reception of applicants for international protection, and Directive 2013/32/EU on common procedures for the granting and withdrawal of international protection status), introduced by Article 1, paragraph 2-bis, letter a), of Law Decree of March 28, 2025, no. 37 (Urgent provisions for combating irregular immigration), converted, with amendments, into Law of May 23, 2025, no. 75, raised, with reference to Articles 3, 13, 24, 111 and 117, first paragraph, of the Constitution, the latter in relation to Article 5 of the European Convention on Human Rights, Article 3 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, and Article 9 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on December 16, 1966, as well as in reference to Articles 11 and 117, first paragraph, of the Constitution, in relation to Article 6 of the Charter of Fundamental Rights of the European Union, by the Court of Cassation, first criminal section, with the order specified in the preamble.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on January 27, 2026.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Rapporteur
Igor DI BERNARDINI, Registrar
Filed in the Registry on March 27, 2026
The anonymized version is textually compliant with the original