Court of Cassation, 4 August 2026

The First Civil Section of the Court of Cassation (president Maria Acierno, rapporteur Martina Flamini) rejects the case law of the criminal sections on the immediate removability of an applicant whose application has been rejected as manifestly unfounded or inadmissible. The appeal was against decree no. 21788/2026 of 22 June 2026 of the Justice of the Peace of Turin. Decree-Law 100/2026 returned the subject of detention to the civil sections, after eighteen months in which it had fallen within the jurisdiction of the criminal sections.

The obligation to leave the territory arises on expiry of the time limit for appeal

The Court starts from Article 32(4) of Legislative Decree 25/2008:

“The applicant's obligation to leave the national territory, in the cases indicated above [...] arises only on expiry of the time limit for appeal.”

The rule applies to all the cases listed in the provision: simple rejection (point (b)), rejection as manifestly unfounded (point (b-bis)), internal protection alternative (point (b-ter)), inadmissibility in the cases of Article 38(1) of Regulation (EU) 2024/1348 (point (b-quater)), in addition to the situations covered by Articles 23, 23-bis, 29 and 29-bis of Legislative Decree 25/2008. Until that time limit expires, the certificate of the obligation to return, although it takes the place of the expulsion order, cannot be enforced.

The case concerned a first subsequent application declared inadmissible for lack of novelty. The Court places the situation precisely: it is “neither a second or further subsequent application, nor an application made solely to delay or frustrate the enforcement of a return or removal decision”, so that it falls under Article 29 of Legislative Decree 25/2008 — which refers to Article 38(2) of Regulation (EU) 2024/1348 — and not under Articles 56 and 68(6) of that Regulation, the only provisions that would allow the right to remain to be excluded. The other cases of inadmissibility in Article 38(1) are instead referred to by the new Article 32(1)(b-quater) of Legislative Decree 25/2008.

Even under the post-Pact rules, therefore, the applicant cannot be expelled until the time limit for appeal has expired without an appeal being brought, irrespective of the type of rejection decision. Since the detention had been ordered on 20 June 2026 and the inadmissibility decision was dated 15 June, the time limit had not expired: the decision “could not be enforced, with the consequence that the detention ordered was unlawful”.

The dissent from the criminal sections

The Court takes a position on Court of Cassation, Criminal Division, Section I, no. 37701 of 12 November 2025 (which referred to Court of Cassation, Criminal Division, Section I, no. 22275 of 12 June 2025), according to which, in the case of Article 35-bis(3)(b) of Legislative Decree 25/2008, the inadmissibility decision is immediately enforceable: “that conclusion cannot be endorsed”, also because of the “changed regulatory environment” compared with the one examined in those rulings. The coordination with Article 35-bis is drawn by distinguishing the two levels: Article 32(4) governs the right to await the expiry of the time limit before the obligation to leave the territory arises, whereas Article 35-bis governs the right to remain in the phase following the lodging of the appeal.

The scope of review by the validating judge

The defect of the Turin decree is traced back to the extent of the review that the Constitution requires of the validating judge. The Court refers to Constitutional Court no. 203/2024 (detention in the CPR affects personal liberty) and to the “full meaning” of review affirmed by Constitutional Court no. 105/2001, which “cannot stop at the margins of the expulsion procedure”, and reaffirms its own case law (Court of Cassation no. 16496/2024, no. 30166/2023, no. 18404/2023): the verification is not limited to the conditions of Articles 13(4-bis) and 14(1) of Legislative Decree 286/1998, but extends to “the existence and effectiveness of the expulsion measure” and to its “manifest unlawfulness”, an indispensable precondition for the deprivation of liberty. The Justice of the Peace should therefore have assessed whether, at the time of the detention, the time limit for appeal had expired.

Jurisdiction remains with the Justice of the Peace

The second ground, examined first because it concerns jurisdiction, is instead rejected. The appellant argued that, while the time limit for appealing the Commission's decision was still running, validation belonged to the Tribunal (Articles 2 and 6 of Legislative Decree 142/2015). The Court replies that the certificate of the obligation to return under Article 32(4) of Legislative Decree 25/2008 “takes the place of and produces the effects of” the expulsion measure, and that the Questore acts under Article 13(4) and (5) of Legislative Decree 286/1998; paragraph 5.2 of the same Article 13 vests jurisdiction in the Justice of the Peace. The detention had been ordered “in the phase of enforcement of the expulsion”: this is not detention under Article 6 of Legislative Decree 142/2015, so that the principles on the jurisdiction of the Tribunal based on the continuation of applicant status until the final decision do not apply.

The criterion cannot be entirely superimposed on that of the twin order no. 24431/2026, which gives weight to the status of applicant “irrespective of the legal basis on which the detention was ordered”. The point of connection lies in the facts: there the detainee had renewed the expression of the wish to apply before the Questura, here not. Pre-removal detention of a person who has received the certificate under Article 32(4) therefore remains before the Justice of the Peace, who must however verify that it is enforceable.

The new procedure for appeals to the Court of Cassation (Article 14.1 of Legislative Decree 286/1998)

This is one of the first applications of the procedure introduced by Article 12(2)(g) of Decree-Law 100/2026. The Court lays down the intertemporal rule: the new regime applies to measures on detention, extensions and reviews “issued by the competent judicial body from 12 June 2026”, the date of entry into force of the decree (Article 19 of Decree-Law 100/2026). Since this concerns the rules governing the form of appeal, the date of the contested measure counts and not that on which the application was lodged. The appeal had been brought according to the former model, but the divergence does not affect its admissibility, since service on the Avvocatura generale and registration of the case were timely.

The order reconstructs the passage from the old Article 14(6) of Legislative Decree 286/1998 (appeal within five days, only on the grounds of Article 606(1)(a), (b) and (c) of the Code of Criminal Procedure), repealed by point (f) of the same Article 12 of Decree-Law 100/2026, to the new Article 14.1 of Legislative Decree 286/1998:

• appeal to the Court of Cassation under Article 360 of the Code of Civil Procedure within ten days of the pronouncement at the hearing or of the communication, against the decree on validation, extension or review of detention or of the alternative measures;
• filing on pain of inadmissibility within five days of service (Article 369, second paragraph, of the Code of Civil Procedure applies);
• concise defence brief of the other party within five days of filing, which may also contain grounds for a cross-appeal;
• decision in chambers within thirty days of filing, with notice to the lawyers and the public prosecutor at least fifteen days before the sitting; written submissions of the public prosecutor up to ten days before, documents under Article 372 of the Code of Civil Procedure within the same time limit, explanatory briefs up to five days before; sitting also possible remotely;
• briefly reasoned order filed at the end of the deliberation in chambers, or only the operative part with reasons within the following fifteen days; for the rest, the Code of Civil Procedure to the extent compatible.

The fate of the Questore's measure

The panel also restates the rule that “the quashing of the validation decree deprives the administrative measure of effect ex tunc”, since this is the exercise of an exceptional authoritative power that is rigidly regulated also as regards its temporal effectiveness: hence the decision on the merits, without remand. The operative part quashes the decree of the Justice of the Peace, “does not validate the detention” ordered by the Questore of Turin on 20 June 2026 “and declares it ineffective”: detention ordered before the expiry of the time limit for appeal never had a valid basis. As to costs, the detainee is admitted to legal aid at the State's expense ex lege and the lawyer's fee is to be determined under Articles 82 and 83 of Presidential Decree 115/2002, with no order on costs before the Court of Cassation.

The same order of verification — first the enforceability of the obligation to return, then detention or alternative measures — was applied on the same date by the Justice of the Peace of Trieste, R.G. 1738/2026, covered in the summary Trib. Trieste, R.G. 4385/2026. To be read together with the twin order no. 24431/2026 on jurisdiction for validation.