ORDER NO. 167
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 delivered the following
ORDER
in the proceedings concerning the constitutional legitimacy of Articles 16, 18, 18-bis, and 19 of Decree-Law No. 145 of 11 October 2024 (Urgent provisions regarding the entry into Italy of foreign workers, protection and assistance for victims of gangmaster labor [caporalato], management of migratory flows and international protection, as well as related judicial proceedings), converted, with amendments, into Law No. 187 of 9 December 2024, brought by the Court of Appeal of Lecce, Immigration Section, sitting as a single judge, by orders dated 14 May 2025, 11 and 13 June 2025, 22 and 29 August 2025, and 4 and 8 September 2025, respectively registered under numbers 115, 132, 133, 134, 135, 140, 193, 194, 195, 196, 197, and 198 of the 2025 Register of Orders and published in the Official Journal of the Republic, numbers 25, 28, 34, and 42, 1st special series, of the year 2025.
Having regard to the briefs submitted by the President of the Council of Ministers;
having heard in chambers on 23 March 2026 the Judge Rapporteur Maria Rosaria San Giorgio;
having deliberated in chambers on 23 March 2026.
Whereas the Court of Appeal of Lecce, Immigration Section, sitting as a single judge, by seven identical orders dated 14 May 2025 (Reg. Ord. No. 115 of 2025), 11 June 2025 (Reg. Ord. Nos. 132, 133, 134, and 135 of 2025), 13 June 2025 (Reg. Ord. No. 140 of 2025), and 22 August 2025 (Reg. Ord. No. 195 of 2025), has raised questions of constitutional legitimacy, with reference to Articles 77(2), 3, 25, and 102(2) of the Constitution, regarding Articles 16, 18, 18-bis, and 19 of Decree-Law No. 145 of 11 October 2024 (Urgent provisions regarding the entry into Italy of foreign workers, protection and assistance for victims of gangmaster labor, management of migratory flows and international protection, as well as related judicial proceedings), converted, with amendments, into Law No. 187 of 9 December 2024;
whereas, specifically, as emerges from the statement of reasons in the orders, the *judges a quo* challenge first and foremost Articles 16 [paragraphs 1(b) and 2], 18 [paragraph 1(a), numbers 1) and 3), and (b)], 18-bis [paragraph 1(a)], and 19 of the aforementioned decree-law, as converted, to the extent that they confer jurisdiction to rule on the validation or extension of the detention of a foreign national applying for international protection upon the Court of Appeal, pursuant to Article 5(2) of Law No. 69 of 22 April 2005 (Provisions to conform domestic law to Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures between Member States), within whose district the *Questore* [Police Commissioner] who adopted the measure subject to validation has their seat, adjudicating in a single-judge composition, "in lieu of the Specialized Section for Immigration, International Protection and Free Movement of European Union Citizens, established at the District Court”;
whereas the same Court of Appeal of Lecce, Immigration Section, sitting as a single judge, by another five identical orders dated 29 August 2025 (Reg. Ord. Nos. 193 and 194 of 2025), 4 September 2025 (Reg. Ord. Nos. 196 and 198 of 2025), and 8 September 2025 (Reg. Ord. No. 197 of 2025), in addition to the provisions already cited, has also challenged Article 18 – specifically, as emerges from the reasoning of the referring acts themselves, paragraph 1(a), number 2) – and Article 18-bis (and in particular, as can be gathered from the referral orders, paragraph 1(b), numbers 1 and 2, of Decree-Law No. 145 of 2024, as converted), to the extent that they provide that the measure issued by the Court of Appeal is subject to an appeal to the Court of Cassation, to be brought within five days of its communication and solely on the grounds referred to in Article 606(1)(a), (b), and (c) of the Code of Criminal Procedure, and that "the provisions of Article 22(3) and (4) of Law No. 69/2005 shall apply insofar as compatible.” Such provisions would entail a breach of Articles 77(2), 3, 10(3), 24, 11, and 117(1) of the Constitution, the latter two in conjunction with Article 5(1)(f) and (4) of the European Convention on Human Rights (ECHR), Article 9 of Directive (EU) 2013/33 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, and Article 26 of Directive (EU) 2013/32 of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection status – which were, moreover, repealed, respectively, by Article 36 of Directive (EU) 2024/1346 of the European Parliament and of the Council of 14 May 2024 laying down standards for the reception of applicants for international protection (recast), and by Article 78(1) of Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, with effect from 12 June 2026, and therefore applicable *ratione temporis* in the main proceedings – as well as Articles 6, 18, and 47 of the Charter of Fundamental Rights of the European Union (CFREU);
whereas the referring judges report that they are called upon to rule upon the applications – formulated by the *Questore* of Brindisi, pursuant to Article 6 of Legislative Decree No. 142 of 18 August 2015 (Implementation of Directive 2013/33/UE laying down standards for the reception of applicants for international protection, as well as Directive 2013/32/UE on common procedures for granting and withdrawing international protection status) – for the validation (for the orders registered under numbers 115, 132 to 135, 193, 195 Reg. Ord. of 2025) and extension (for the orders registered under numbers 140, 194, 196, 197, and 198 Reg. Ord. of 2025) of the detention of foreign nationals who, having already been detained pursuant to Article 14 of Legislative Decree No. 286 of 25 July 1998 (Consolidated text of provisions governing immigration regulations and rules on the status of foreigners), had applied for international protection;
whereas the *judges a quo* argue regarding the relevance of the questions raised, observing that the upholding thereof would entail the reviviscence of the previous system whereby jurisdiction to decide on the validation or extension of the detention of an applicant for international protection was vested in the specialized sections established at the district courts, and the first-instance decisions were subject to appeal to the Court of Cassation pursuant to Article 360 of the Code of Civil Procedure;
whereas, regarding the non-manifest groundlessness, the referring judges observe that the challenged provisions cause significant application uncertainties and give rise to doubts of reasonableness on multiple grounds. Firstly, they deem unintelligible the rationale behind the attribution *"per saltum”* to the Court of Appeal of proceedings that, by structure and function, ordinarily belong to the first instance of jurisdiction. The reform would also affect the unitary nature of the matter of international protection, creating a separation between the judge competent to rule on the merits of the asylum application and the judge called upon to review the lawfulness of the detention ordered within the scope of the same procedure. Such a split would run counter to the requirement for the concentration of legal protection and the specialization of the judge in a matter characterized by high technical complexity and a direct impact on fundamental rights;
whereas the challenged provisions would run counter to Article 77(2) of the Constitution insofar as they were introduced by means of a decree-law despite the evident lack of the relative constitutional prerequisites;
whereas they would also violate Articles 3, 25, and 102(2) of the Constitution since the removal of the matter from the specialized judge pre-established by law, in the absence of a constitutionally appreciable reason, would constitute an unjustified derogation from the principle of the natural judge. On this point, the referrers consider it arbitrary and inconsistent to find the justification for the reform in a purported affinity with proceedings concerning the European Arrest Warrant (EAW), given that the latter is based on a judicial decision connected to criminally relevant facts, whereas the detention of an applicant for international protection, while impacting personal freedom, constitutes an administrative measure, extraneous to the ascertainment or execution of criminal liabilities;
whereas, lastly, as noted in the orders registered under numbers 193, 194, 196, 197, and 198 Reg. Ord. of 2025, the regulation governing proceedings before the Court of Cassation (Articles 18(1)(a)(2) and 18-bis(1)(b)(1) and (2) of Decree-Law No. 145 of 2024, as converted), to the extent that it reduces the time limit for appealing the decree to five days and limits the grounds of appeal solely to the hypotheses referred to in Article 606(1)(a), (b), and (c) of the Code of Criminal Procedure, with the exclusion of flaws in reasoning [vizio di motivazione], would result in an unreasonable compression of the right of defense and the right to appeal, in contrast not only with Articles 3 and 24 of the Constitution, but also with Articles 10(3), 11, and 117(1) of the Constitution, the latter two in relation to conventional and EU-law parameters which require, in matters of detention of applicants for international protection, effective, prompt, and fully accessible judicial review;
whereas in the present proceedings of constitutional legitimacy, the President of the Council of Ministers has intervened, represented and defended by the State Attorney General’s Office (*Avvocatura generale dello Stato*);
whereas, as a preliminary matter, the State’s defense counsel has raised an objection of inadmissibility, due to lack of relevance, regarding the questions concerning Article 18-bis(1)(b), numbers 1) and 2) of Decree-Law No. 145 of 2024, as converted, as well as Article 19 of the same decree-law;
whereas, in support of this objection, the State’s defense argues that the challenges concerning the novelties regarding proceedings before the Court of Cassation would concern a regulatory framework intended to operate only at a stage subsequent to that in which the *judges a quo* are called upon to decide, whereas, as regards Article 19, the referral orders lack an autonomous and specific statement of reasons regarding its relevance in the main proceedings;
whereas, on the merits, the State Attorney General’s Office highlights the groundlessness of the question with reference to Article 77(2) of the Constitution, observing that, in the case of provisions introduced during the conversion process, a symptomatic index of the absence of the prerequisites required by the invoked constitutional parameter should be sought not so much in the lack of necessity and urgency, but rather in the heterogeneity or extraneousness of the matter governed by the challenged provision compared to the overall content of the decree-law. Such extraneousness would not be discernible in the present case, since the challenged provisions pertain to the management of migratory flows and international protection, to which the entirety of Decree-Law No. 145 of 2024, as converted, relates under various aspects;
whereas, as regards the challenges referring to Articles 3, 25, and 102(2) of the Constitution, the State’s defense observes that the referral orders proceed from an incorrect reconstruction of the regulatory framework and the relevant constitutional principles. In particular, Article 25(1) of the Constitution, by establishing a statutory reservation (*riserva di legge*) regarding the identification of the competent judge, prevents arbitrary shifts of a trial from one judge to another, but does not preclude the legislature from redefining, on the basis of predetermined general criteria, by means of an act having the force of law, the layout of jurisdictional jurisdictions, provided that the principle of reasonableness is respected. In the legislation under scrutiny, this principle is respected, in view of the common constitutional matrix of the guarantees governing any limitation of personal liberty, whatever the cause of restriction. Not by chance, the State’s defense adds, the Court of Appeal is already vested with proceedings that affect personal liberty, such as those regarding the European arrest warrant and extradition. The brief also notes points of affinity between the matter of extradition and that of asylum, such as to exclude that cognizance over the detention of a foreigner is ontologically extraneous to the jurisdiction of the Courts of Appeal.
Considering that, by the orders set out in the heading, the Court of Appeal of Lecce, Immigration Section, sitting as a single judge, has raised questions of constitutional legitimacy regarding Articles 16(1)(b) and 2, 18(1)(a), numbers 1) and 3), and (b), 18-bis(1)(a), and 19 of Decree-Law No. 145 of 2024, as converted, with reference to Articles 77(2), 3, 25, and 102(2) of the Constitution;
whereas the same Court of Appeal has also challenged Articles 18(1)(a), number 2) and 18-bis(1)(b), numbers 1) and 2) of Decree-Law No. 145 of 2024, as converted, with reference to Articles 77(2), 3, 10(3), 24, 11, and 117(1) of the Constitution, the latter two in relation to Article 5(1)(f) and (4) ECHR, Article 9 of Directive 2013/33/EU and Article 26 of Directive 2013/32/EU, and Articles 6, 18, and 47 CFREU (orders registered under numbers 193, 194, 196, 197, and 198 Reg. Ord. of 2025);
whereas the proceedings must be joined, as the referral orders have as their object provisions and invoke constitutional parameters that partially coincide;
whereas the legislation subject to challenge was amended by Decree-Law No. 100 of 12 June 2026 (Urgent measures in the field of justice and for the implementation of the European Union Pact on Migration and Asylum of 14 May 2024), converted into Law No. 145 of 7 August 2026, which, on the one hand, restored the jurisdiction of the specialized sections for immigration, international protection, and free movement of European Union citizens for proceedings to validate measures ordering or extending the detention of foreign nationals applying for international protection (Article 14) and, on the other hand, provided that an appeal to the Court of Cassation pursuant to Article 360 of the Code of Civil Procedure may be brought against the decree ruling on the validation, extension, or review of detention or alternative measures, in accordance with the procedures indicated in Article 12(2)(g) of the same decree-law;
whereas, however, the new provisions do not apply to the *judges a quo* proceedings, given that the measure by which the *Questore* orders detention or extends its duration, which is the subject of the validation proceedings within which the present questions were raised, must be scrutinized, in accordance with the principle *"tempus regit actum”*, "on the basis of the rules in force at the time of its [...] adoption” (on this point, order of this Court No. 30 of 2024), remaining unaffected by any intervening change in the reference regulatory framework occurring while the validation proceedings are suspended pursuant to Article 23 of Law No. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court);
whereas, moreover, Article 17(4) of Decree-Law No. 100 of 2026, as converted, expressly provides that "[t]o administrative or judicial proceedings initiated following the submission of an application for international protection prior to 12 June 2026, the pre-existing legislation shall continue to apply until the conclusion of the proceedings themselves.” This condition peacefully applies to the *judges a quo* proceedings, which stem from applications for international protection predating the aforementioned date and still pending due to the suspension ordered by the referral orders;
whereas this Court, by judgment No. 205 of 2025, deposited on 29 December 2025, a date subsequent to the deposit of the referral orders under examination, has already declared inadmissible, due to a lack of relevance, identical questions of constitutional legitimacy regarding Articles 18(1)(a), number 2), and 18-bis(1)(b), numbers 1) and 2) of Decree-Law No. 145 of 2024, as converted, insofar as they "reformed the proceedings before the Court of Cassation concerning the validation of both types of detention concerning, respectively, irregularly expelled foreign nationals (Article 14 of Legislative Decree No. 286 of 1998) and foreign nationals applying for international protection (Article 6 of Legislative Decree No. 142 of 2015).” The aforementioned judgment deemed it "premature to question the conformity with the Constitution of the rules” governing the review of lawfulness given that they cannot apply at the stage of proceedings in which the *judges a quo* are called upon to decide;
whereas by the same judgment No. 205 of 2025, the question concerning "the intertemporal regime outlined by Article 19 of Decree-Law No. 145 of 2024, as converted” was declared inadmissible as it lacked any statement of reasons regarding relevance;
whereas, likewise by the same judgment, the questions "relating to changes in jurisdiction to rule in the first instance on the validation of the detention of foreign nationals applying for international protection ordered by Articles 16(1)(b) and 2, 18(1)(a), numbers 1) and 3), and (b), and 18-bis(1)(a) of Decree-Law No. 145 of 2024, as converted” were declared unfounded;
whereas, in particular, this Court ruled out any violation of Article 77(2) of the Constitution, since the challenged provisions, introduced during the conversion of the decree-law, do not exhibit a "lack of homogeneity with respect to the original decree-law”;
whereas, in this regard, it was specified that "only the manifest ‘extraneousness of the challenged provisions to the object and purposes of the decree-law’ [...] or the ‘evident or manifest lack of any interrelation between the provisions incorporated in the conversion law and those of the original decree-law’ [...] can invalidate *per se* the constitutional legitimacy of the rule introduced with the conversion law”;
whereas, by the aforementioned judgment No. 205 of 2025, this Court also held that the challenged provisions do not run counter to the guarantee enshrined in Article 25(1) of the Constitution, which must be considered respected in cases, such as the present one, where the legislature introduces "a change in jurisdiction concerning a category of disputes – that of the validation of measures ordering or extending the detention of the foreign asylum seeker – through the indication of predetermined and abstract criteria for determination *ratione materiae* and *ratione loci* and, therefore, operating *pro futuro*”;
whereas the questions of constitutional legitimacy concerning the alleged violation of Article 3 of the Constitution, with reference to the principle of reasonableness, and of Article 102(2) of the Constitution, were also declared unfounded by the same judgment;
whereas, on this point, this Court highlighted that the new rules for determining jurisdiction "are endowed with sufficient precision and intelligibility [...]. Indeed, the new legislation sacrificed the requirement of specialization *ratione materiae* – and consequently also that of concentration – to entrust the disputes in question to judges who, as they are assigned EAW execution and extradition proceedings, possess a different specialization, but are nonetheless accustomed to handling proceedings that involve the personal liberty of foreign nationals and that must be decided within tight deadlines. It should be recalled in this regard that the detention of a foreign national, while falling among the acts expressing the coercive power of the public administration [...] consists concretely in a limitation of personal liberty”;
whereas by the same judgment the legislature was invited to "verify, over time, the soundness of the new jurisdictional framework and undertake corrective interventions should it prove to be a source of application difficulties”;
whereas the questions raised by the orders in the heading replicate – substantially, as regards the challenged rules, the invoked parameters, the *petitum*, and the argumentative pathway – those raised by the referral orders subject to the aforementioned judgment No. 205 of 2025, without adducing new arguments capable of modifying the conclusions already reached;
whereas, therefore, the "questions of constitutional legitimacy of Articles 18(1)(a), number 2, 18-bis of Decree-Law No. 145 of 2024, as converted, to the extent that – in paragraph 1(b), numbers 1) and 2) – it reformed proceedings before the Court of Cassation concerning the validation of both types of detention concerning, respectively, the irregularly expelled foreign national (Article 14 of Legislative Decree No. 286 of 1998) and the foreign national applying for international protection (Article 6 of Legislative Decree No. 142 of 2015)” (judgment No. 205 of 2025), raised by the orders registered under numbers 193, 194, 196, 197, and 198 Reg. Ord. of 2025, with reference to Articles 77(2), 3, 10(3), 24, 11, and 117(1) of the Constitution, the latter two in relation to Article 5(1)(f) and (4) of the European Convention on Human Rights, Article 9 of Directive (EU) 2013/33 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, Article 26 of Directive (EU) 2013/32 of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection status, and Articles 6, 18, and 47 of the Charter of Fundamental Rights of the European Union, must be declared manifestly inadmissible;
whereas, with reference to the same parameters just recalled, the question concerning "the intertemporal regime outlined by Article 19 of Decree-Law No. 145 of 2024, as converted” must also be declared manifestly inadmissible;
whereas, finally, the questions "relating to changes in jurisdiction to rule in the first instance on the validation of the detention of foreign nationals applying for international protection ordered by Articles 16(1)(b) and 2, 18(1)(a), numbers 1) and 3), and (b), and 18-bis(1)(a) of Decree-Law No. 145 of 2024, as converted”, raised with reference to Articles 77(2), 3, 25, and 102(2) of the Constitution by the orders registered under numbers 115, 132, 133, 134, 135, 140, and 195, must be declared manifestly unfounded.
on these grounds
THE CONSTITUTIONAL COURT
having joined the proceedings,
1) declares the manifest inadmissibility of the questions of constitutional legitimacy of Articles 18(1)(a), number 2), 18-bis(1)(b), numbers 1) and 2), and 19 of Decree-Law No. 145 of 11 October 2024 (Urgent provisions regarding the entry into Italy of foreign workers, protection and assistance for victims of gangmaster labor, management of migratory flows and international protection, as well as related judicial proceedings), converted, with amendments, into Law No. 187 of 9 December 2024, raised – with reference to Articles 77(2), 3, 10(3), 24, 11, and 117(1) of the Constitution, the latter two in relation to Article 5(1)(f) and (4) of the European Convention on Human Rights, Article 9 of Directive (EU) 2013/33 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, Article 26 of Directive (EU) 2013/32 of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection status, and Articles 6, 18, and 47 of the Charter of Fundamental Rights of the European Union – by the Court of Appeal of Lecce, Immigration Section, sitting as a single judge, by the orders registered under numbers 193, 194, 196, 197, and 198 of the 2025 Register of Orders, and, as regards Article 19 of Decree-Law No. 145 of 2024, as converted, also by the other orders set out in the heading;
2) declares the manifest groundlessness of the questions of constitutional legitimacy of Articles 16(1)(b) and 2, 18(1)(a), numbers 1) and 3), and (b), and 18-bis(1)(a) of Decree-Law No. 145 of 2024, as converted, raised, with reference to Articles 77(2), 3, 25, and 102(2) of the Constitution, by the Court of Appeal of Lecce, Immigration Section, sitting as a single judge, by the orders indicated in the heading.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 23 March 2026.
Signed:
Giovanni AMOROSO, President
Maria Rosaria SAN GIORGIO, Rapporteur
Igor DI BERNARDINI, Registrar
Filed in the Registry on 9 October 2026