JUDGMENT NO. 78

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, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has handed down the following

JUDGMENT

in the proceedings regarding the constitutionality of the "combined provisions” of Art. 6(5) of Legislative Decree no. 142 of 18 August 2015 (Implementation of Directive 2013/33/EU laying down standards for the reception of applicants for international protection, as well as Directive 2013/32/EU on common procedures for granting and withdrawing international protection status), and Art. 14(4) of Legislative Decree no. 286 of 25 July 1998 (Consolidated Act on provisions governing immigration and the status of aliens), initiated by the Court of Appeal of Turin, Seventh Civil Division, sitting as a single judge, in the proceedings between the Turin Police Headquarters and Y. K., by referral order of 10 October 2025, registered as no. 215 in the 2025 register of referral orders and published in the Official Gazette of the Republic, Special Series no. 46, of the year 2025.

Having regard to the act of intervention by the President of the Council of Ministers;

having heard the reporting judge, Stefano Petitti, in chambers on 13 April 2026;

having deliberated in chambers on 13 April 2026.

Legal Findings (Factual background)

1.– By referral order of 10 October 2025, registered as no. 215 of the 2025 register of referral orders, the Court of Appeal of Turin, Seventh Civil Division, sitting as a single judge, raised a question of constitutional legitimacy regarding the "combined provisions” of Art. 6(5) of Legislative Decree no. 142 of 18 August 2015 (Implementation of Directive 2013/33/EU laying down standards for the reception of applicants for international protection, and Directive 2013/32/EU on common procedures for granting and withdrawing international protection status) and Art. 14(4) of Legislative Decree no. 286 of 25 July 1998 (Consolidated Act on provisions governing immigration and the status of aliens).

The contested provisions are alleged to violate Articles 3 and 24(2) of the Constitution, insofar as, regarding a foreign national seeking international protection who is held in a detention center for repatriation (CPR):

- they fail to provide that the individual be warned, prior to the hearing for the validation of detention, that their statements may be used against them;

- they do not recognize the right of the individual to remain silent during such a hearing, even if they appear, and do not prescribe that the corresponding prior warning be given;

- they fail to govern the procedural consequences of the failure to provide said warnings.

1.1.– The referring Court states that, while reviewing the validation of the detention of Y. K., ordered by the Turin Police Commissioner due to the allegedly vexatious nature of the application for international protection, it recorded the statements of the individual during the hearing regarding the prior revocation of his residence permit for the execution of a criminal sentence and the subsequent submission of the application for international protection, which occurred only when he was moved to a CPR upon his release from prison.

1.2.– Regarding the relevance of the question, the Court of Appeal asserts that the aforementioned statements—made by the individual without prior warnings regarding the right to silence—may affect the validation ruling, as they are "in themselves sufficient to demonstrate the soundness of the grounds upon which the Turin Police Commissioner ordered the detention.”

Regarding the non-manifest groundlessness of the question, the court a quo, premise being that detention constitutes a limitation of personal liberty, considers it contrary to the invoked constitutional standards not to recognize the right to silence for the detained foreign national, as a reflection of the nemo tenetur se detegere principle.

In the referring court’s opinion, this principle, and the right which it expresses, "transcends the strictly defined scope of criminal law and must also apply to cases where the limitation on personal liberty derives from an administrative source.”

In addition to the right to defense under Art. 24 of the Constitution, for which it also cites Art. 6 of the European Convention on Human Rights, the Court of Appeal considers that the constitutional principle of equality is also violated, as the guarantees afforded to a suspect by Art. 64(3) and (3-bis) of the Code of Criminal Procedure are not extended to the detainee, despite the "substantial comparability” of the two personal conditions.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney’s Office, which requested that the question be declared inadmissible or groundless.

2.1.– The question is alleged to be inadmissible due to a lack of relevance, as the statements made at the hearing by the detainee, as reported in the referral order, did not pertain to the grounds for recognition of international protection and, therefore, fell outside the scope of the validation proceeding for vexatious applications: "the lack of a warning regarding the right to silence”—according to the State defense—"did not lead to the declaration of circumstances relating to the grounds of the detention order and, therefore, to the thema decidendum of the validation proceedings.”

2.2.– The question is, in any case, devoid of merit.

Given the heterogeneity of the circumstances, it is claimed to be improper to equate administrative detention with criminal arrest in order to extend the guarantees of the latter to the former, also because the methods of the individual’s participation in the validation hearing differ, as the detainee is not obliged to appear, nor to answer the questions addressed to him.

Given the "absence of investigative cooperation obligations on the part of the detainee”—the State Attorney’s Office continues—"the lack of provision, in the challenged rules, for the necessity to formally warn the individual of his right to remain silent does not demonstrate the absence of an essential safeguard for the right to defense.”

Insisting on the criminal-law nature of the right to silence guarantee, the intervenor maintains that for the validation of the detention of a foreign national, the legislature has established a procedure already equipped with appropriate safeguards, such as the mandatory participation of defense counsel, "without there being any need to transpose into the validation proceeding institutions that possess the peculiarities and specificities of criminal procedural law.”

Legal Reasoning (Considerations)

3.– By the order indicated in the heading (reg. ord. no. 215 of 2025), the Court of Appeal of Turin, Seventh Civil Division, sitting as a single judge, challenges Art. 6(5) of Legislative Decree no. 142 of 2015 and Art. 14(4) of Legislative Decree no. 286 of 1998, the "combined provisions” of which allegedly violate Articles 3 and 24(2) of the Constitution, insofar as they do not guarantee the so-called right to silence to a foreign national seeking international protection who is held in a CPR, within the framework of the detention validation hearing.

The court a quo holds that the invoked standards are violated by the legislative omission of the detainee’s right to refrain from making statements at such a hearing and by the corresponding lack of provision for the mandatory issuance, duly sanctioned, of prior warnings functional to the exercise of the right to remain silent, including the warning regarding the potential use of statements against the person who made them.

3.1.– Tasked with the validation of a detention based on the vexatious nature of an asylum claim, the referring Court of Appeal, having recorded several statements made by the individual during the hearing without the aforementioned prior warnings, deems the constitutional question relevant, as the statements themselves, in its view, are suitable for demonstrating the validity of the grounds for detention.

3.2.– As for the merits, the right to defense—in the specific manifestation of the right to silence—is claimed to be infringed, as the principle of nemo tenetur se detegere applies even outside the strictly criminal scope, whenever statements made contra se may affect—as in the detention of a foreign national—the personal liberty of the declarant.

Furthermore, an unreasonable disparity in treatment would emerge between a suspect, to whom Art. 64(3) and (3-bis) of the Code of Criminal Procedure grants the right to silence, and the detainee, to whom this safeguard is not afforded; an unreasonable disparity in view of the substantial identity of the two personal conditions, both of which potentially restrict the individual’s liberty.

4.– The State Attorney’s Office, having intervened on behalf of the President of the Council of Ministers, raised an objection of inadmissibility due to a lack of relevance, on the assumption that the statements made by the foreign national before the court a quo were not, in that instance, pertinent to the validation of the detention for vexatious intent.

4.1.– The objection is unfounded.

It appears from the referral order that the statements made at the hearing by the foreign national concerned various aspects of his long presence in the country, some of which were indeed irrelevant to the verification of the genuineness of the international protection application (lack of employment and family ties), while others—conversely—were potentially significant in that regard.

In fact, declarations concerning the subject’s multi-year stay in Italy without filing an application for protection, and the submission of said application only when the individual was transferred to a CPR upon release from prison, pending expulsion following the revocation of his residence permit, may be relevant in the assessment of the instrumentality of the asylum request.

The fact that these are circumstances easily detectable by the judicial authority on a documentary basis—therefore, regardless of any declaration made by the individual—is not a decisive factor in the sense indicated by the State defense, as this Court has highlighted how it is unable to alter the terms of the constitutional legitimacy question regarding the existence of the right to silence (so, in Judgment no. 111 of 2023, regarding information on criminal records, easily obtainable from the examination of the judicial register).

4.2.– Nor does the fact that, as further indicated in the referral order, the Court of Appeal of Turin subsequently ordered the release of the foreign national from the CPR constitute an obstacle to the admissibility of the question, as it is an event subsequent to the referral and, therefore, irrelevant in these proceedings.

5.– On the merits, the question is unfounded.

6.– From its clearest supranational formulation, contained in Art. 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations General Assembly on 16 December 1966, the right to silence is configured as a typically criminal-law guarantee, specifically referred to a "criminal charge,” as the accused is to be free from any pressure to confess regarding the commission of a crime ("not to be compelled to testify against himself or to confess guilt”).

In the celebrated decision of the United States Supreme Court that developed the so-called Miranda warnings, i.e., the warnings functional to its informed exercise, the right to silence is precisely anchored in the criminal doctrine of the "privilege against self-incrimination” (Miranda v. Arizona, 384 U.S. 436 [1966]).

In this sense, the institution was adopted by the current Italian Code of Criminal Procedure, which, as this Court has already had occasion to recall, "almost literally took” those warnings (Judgment no. 111 of 2023).

6.1.– Thus, Art. 64 of the Code of Criminal Procedure comes into play, according to which the person under investigation, before the beginning of the interrogation, must be warned that "his statements may always be used against him” and that "he has the right not to answer any questions” (paragraph 3, letters a and b), a prescription whose non-observance "renders the statements made by the interrogated person unusable” (paragraph 3-bis).

The Court of Appeal of Turin invokes this legal provision as a tertium comparationis, considering its extension from the criminal case of a charge to the non-criminal case of the detention of a foreign national to be constitutionally necessary, which is however refuted by the heterogeneity of the points of comparison.

6.2.– In addressing the complex topic of the non-criminal relevance of the right to silence, this Court has had occasion to draw an internal limit, consistent with the aforementioned criminal nature of the guarantee in question.

The distinction was found in the punitive character of the sanction to which the declarant is exposed and, therefore, in its nature—substantially, if not also formally—criminal.

This interpretative line must be confirmed, in light of Articles 3 and 24 of the Constitution, which require that the right to silence, as a declension of the right to defense in criminal matters, be recognized whenever the sanction belongs to that matter, by punitive substance; while it does not require it where the declarant risks no sanction, or in any case not a sanction—not even only substantially—criminal.

6.3.– Under the first profile, i.e., regarding the extension of the right to silence in a substantially criminal context, it is necessary to recall the topic of administrative sanctions for market abuse and the pertinent dialogue initiated by this Court with the Court of Justice of the European Union, through the submission of the preliminary questions referred to in order no. 117 of 2019, later examined by the Grand Chamber, with the judgment of 2 February 2021, case C-481/19, D. B.

The ruling of the Court of Justice stated, precisely, that the right to silence "is intended to apply in the context of procedures capable of leading to the imposition of administrative sanctions of a criminal nature,” such character being able to emerge from three criteria, "The first is given by the legal qualification of the offense in the internal legal system, the second concerns the nature of the offense itself, and the third relates to the degree of severity of the sanction that the interested party risks undergoing.”

In line with this approach, relating the right to silence to responses that may reveal individual liability "for an offense punishable by administrative sanctions of a punitive character, or for a crime,” this Court, with Judgment no. 84 of 2021, affirmed that the right to silence belongs to the constitutional statute of substantially criminal law.

6.4.– This Court ruled on the basis of the same criterion, but with the opposite outcome, i.e., denying the constitutional necessity of the right to silence regarding administrative sanctions charged to the buyer of narcotic substances for personal use, provided for by Art. 75(1) of Presidential Decree no. 309 of 9 October 1990 (Consolidated Act on the laws concerning drugs and psychotropic substances, prevention, care and rehabilitation of drug addiction states), such as, for example, the suspension of a driver’s license, certificates of qualification or eligibility to drive, respectively, motor vehicles or mopeds, and the suspension of a passport or other equivalent document.

In Judgment no. 148 of 2022, it was emphasized that "the high degree of affliction of these measures with respect to the fundamental rights upon which they impinge does not, in itself, exclude their preventive purpose, nor does it unequivocally indicate their ‘punitive’ nature.”

Precisely for this reason—it was stressed—in the application of these measures, "any improper punitive logic must remain excluded a priori, which would necessarily call into question the constitutional statute of criminal liability, including the ‘right to silence’ itself.”

7.– The proceedings a quo concern the validation of a detention for vexatious intent, and the raised question must therefore be understood as referring to this case.

Pursuant to Art. 6(3) of Legislative Decree no. 142 of 2015, detention for vexatious intent can be ordered by the police commissioner only against an applicant for international protection who is already in a CPR, specifically "when there are reasonable grounds to believe that the application was submitted solely for the purpose of delaying or preventing the execution of the refusal of entry or expulsion.”

It is, therefore, a precautionary measure, devoid of any punitive connotation, having an exclusively preventive function, namely that of avoiding the instrumentalization of the asylum application against a legitimate order of the public authority.

7.1.– For the validation of the detention of an applicant for international protection, Art. 6(5) of Legislative Decree no. 142 of 2015 refers to Art. 14 of Legislative Decree no. 286 of 1998, which regulates the detention aimed at the execution of a refusal of entry or expulsion order.

Pursuant to Art. 14(4) of Legislative Decree no. 286 of 1998, the validation hearing takes place with the mandatory participation of defense counsel, following timely notice to the defense counsel and the interested party, for whom the hearing is also prescribed: indeed, it is established that the judge provides for the validation "after hearing the interested party, if present.”

7.2.– The legislative provision for judicial validation within a peremptory term highlights that the detention of a foreign national belongs to the category of measures restricting personal liberty.

Indeed, pursuant to Art. 14(7) of Legislative Decree no. 286 of 1998, the police commissioner, making use of the public force, ensures that the foreign national does not unduly distance himself from the CPR and restores the detention measure if violated.

As this Court emphasized as early as Judgment no. 105 of 2001, it is a "measure affecting personal liberty, which cannot be adopted outside the guarantees of Art. 13 of the Constitution,” even though "the legislature took care to avoid, even on a terminological level, identification with institutions familiar to criminal law.”

7.3.– The relevance of detention to the sphere of personal liberty is an established fact in the jurisprudence of this Court, which, even recently, referred to it as the "guarantee of habeas corpus” (Judgment no. 39 of 2025).

The European Court of Human Rights also classifies the detention of a foreign national as a deprivation of personal liberty, although of a non-criminal nature, specifically attributable to the scope of application of Art. 5(1)(f) ECHR, i.e., the lawful arrest or detention of a person to prevent them from entering the territory irregularly or of a person against whom action is being taken with a view to deportation or extradition (Grand Chamber, judgment of 15 December 2016, Khlaifia and Others v. Italy; most recently, Third Section, judgment of 3 February 2026, O.H. and Others v. Serbia, and, previously, Fifth Section, judgment of 23 November 2023, A.T. and Others v. Italy).

7.4.– The de libertate relevance does not, however, change the legal nature of the detention, which is not a sanction, let alone a criminal one, nor can it be applied as such.

Reiterating that detention is "a situation of physical subjection to the power of others,” this Court has therefore excluded that its modalities can be drawn from the penitentiary system, "as administrative detention at the CPR must remain alien to any punitive connotation” (Judgment no. 96 of 2025).

8.– The complaint of the Court of Appeal of Turin proves unfounded in hypothesizing—for the purpose of extending the right to silence—the "substantial comparability” between the personal condition of the detained foreign national and that of the accused of a crime.

The two subjective positions are, instead, different in multiple respects.

8.1.– The defendant has a peculiar and specific defense need, since the proceeding authority accuses him of committing a legally typical wrongful act, the constitutive elements of which it is institutionally required to verify (it may be appreciated, in this sense, that Art. 61(1) of the Code of Criminal Procedure extends to the person under preliminary investigation "the rights and guarantees of the defendant”).

Conversely, a foreign national detained pending repatriation is not accused of an offense, is not called to defend himself against a charge, nor does he risk the imposition of a sanction; rather, should he decide to request international protection, he is interested in obtaining due consideration of his human story, and therefore has the burden of setting out all the reasons useful to define it.

This is not only for the purpose of obtaining international protection, but also, and even before that, to show the seriousness of his own application and thus avoid, consequently, that a new detention is ordered (and then validated) due to the vexatious nature of the same.

A defense guarantee, such as the right to silence, cannot be considered equally necessary for such different contexts precisely in relation to the needs of the defense.

8.2.– The asylum-seeking foreign national has a claim-based position, aimed at achieving the protected status, which is obviously entirely alien to the defendant, whose position is instead only oppositional, in that it is aimed at discharging the accusation.

The heterogeneity of the situations is made manifest by the "personal interview,” which the asylum seeker undergoes, in his own interest, at the territorial commission, pursuant to Art. 12 of Legislative Decree no. 25 of 28 January 2008 (Implementation of Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status).

8.3.– The defendant is called upon to participate in acts of interrogation by the public authority, from which that psychological pressure to which the guarantee of the right to silence responds can stem.

Indeed, although now considered a means of defense, and not a source of proof, the interrogation ex Art. 64 of the Code of Criminal Procedure has, in itself, such an inductive potential that it is not even alien to the "invitations to declare” ex Art. 21 of Legislative Decree no. 271 of 28 July 1989 (Implementation, coordination and transitional norms of the Code of Criminal Procedure), to which, precisely, the guarantee of the ius tacendi was extended by this Court with Judgment no. 111 of 2023.

On the contrary, in the detention validation hearing, it is not provided that the interested party is subjected to interrogation, nor that "invitations to declare” are addressed to him; in fact, Art. 14(4) of Legislative Decree no. 286 of 1998 only establishes that he is "heard,” "if present.”

The comparison proposed by the court a quo thus proves inaccurate, as it links the same protective counterweight to acts that are ontologically different from each other.

It remains firm that, in the detention validation proceeding, which impacts the personal liberty of the individual, the statements made by the interested party must be evaluated by the judge on the basis of the ordinary criterion of prudent assessment, without legal proof automatisms, which are not conceivable in matters of inalienable rights.

9.– All things considered, as the State defense also observes, the regulation of the detention validation hearing does not deny defense guarantees, but rather provides, as already noted, that the detained foreign national may participate without, however, having an obligation to do so, and that, in any case, the defense counsel participates in the hearing itself, as his representative or at his side; both the interested party and the defense counsel are timely informed of the hearing itself, so as to be able to prepare for the interlocution with the judge, in order to avoid the release of careless statements.

It may be recalled, in this sense, that, according to the orientation of conventional jurisprudence, the protection of the right to silence should not be viewed in an atomistic way, but within a global evaluation of the fairness of the proceedings, the cornerstone of which remains the effectiveness of technical defense (ECHR, Fifth Section, judgment of 20 September 2022, Merahi and Delahaye v. France).

9.1.– Finally, it is worth reiterating what this Court recently observed regarding detention for vexatious intent, an institution that, in the dutiful respect of the constraints under Art. 13 of the Constitution, can "discourage possible abuses of the asylum procedure, so as to avoid that this instrument—which is still today of vital importance to ensure the protection of the foreign national against persecution or other serious dangers in his country of origin—is instrumentally used for the sole purpose of avoiding or delaying the execution of legitimate expulsion orders” (Judgment no. 40 of 2026).

10.– The question must be declared unfounded.

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded the question of constitutional legitimacy regarding Art. 6(5) of Legislative Decree no. 142 of 18 August 2015 (Implementation of Directive 2013/33/EU laying down standards for the reception of applicants for international protection, as well as Directive 2013/32/EU on common procedures for granting and withdrawing international protection status), and Art. 14(4) of Legislative Decree no. 286 of 25 July 1998 (Consolidated Act on provisions governing immigration and the status of aliens), raised, in reference to Articles 3 and 24(2) of the Constitution, by the Court of Appeal of Turin, Seventh Civil Division, sitting as a single judge, by the order indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 13 April 2026.

Signed:

Giovanni AMOROSO, President

Stefano PETITTI, Reporting Judge

Igor DI BERNARDINI, Registrar

Filed in the Registry on 14 May 2026

 

The anonymized version is consistent, in the text, with the original.