Tribunal of Bologna, 23 July 2026

By its order of 23 July 2026 the Tribunal of Bologna, International Protection Division (judge Marco Gattuso), decides on the merits the complaint under Article 5-quinquies of Legislative Decree 142/2015 already decided on an interim basis by the decree of 10 July 2026, upholding the complaint and annulling the decision of the Prefect of Bologna that authorised a Pakistani asylum seeker to «reside only» in a reception centre for a maximum period of twelve weeks.

As to the content of the constraint, the Tribunal rejects the request for a preliminary reference to the Court of Cassation under Article 363-bis of the Code of Civil Procedure (inadmissible in the absence of divergent interpretative approaches) and clarifies that, since any limitation of freedom must be expressed in a «manifest, exhaustive and comprehensible» manner, the «authorisation to reside» is limited to the requirements indicated in writing in the individual decision — in this case, the daily signature of the attendance register — any further restriction as to time or territory being excluded. The constraint therefore concerns freedom of movement and not personal liberty, although it remains the case that the authorisation does not amount to an authorisation to enter and stay (Article 43(2) of Regulation (EU) 2024/1348: legal fiction of non-entry). The decree also records that the respondent Prefettura endorsed this reading, and observes that the nomen iuris of «authorisation» adopted by Decree-Law 100/2026 replaces the «obligation to reside in a specific place» of Article 53(4) of Regulation (EU) 2024/1348.

The decision is nonetheless based on an overriding evidentiary ground: the Prefettura did not file the determination of the Commissione territoriale of 8 July 2026 that had ordered the mandatory accelerated procedure at the border — a preliminary act which, in the absence of specific remedies provided for by Regulation (EU) 2024/1348, must necessarily be assessed incidenter tantum by the civil court, including of its own motion (Cass. No. 6745/2021; Cass. Joint Chambers No. 11399/2024) — nor the documentation on the assessment of vulnerabilities (a deficiency that had already led the same Commission to annul the first determination by way of self-review), nor the Eurostat statistical data on which the application of Article 42(1), point (j), of Regulation (EU) 2024/1348 rests. Since the special procedures of Section IV of Chapter III of the regulation are exceptions to the ordinary procedure, to be interpreted literally and restrictively, the burden of alleging and documenting the conditions lies with the respondent Administration and cannot be shifted onto the complainant by arguing that the documents are held by another administration (the ex officio route under Article 213 of the Code of Civil Procedure being also excluded).

The Tribunal adds, for completeness, that the record of the hearing of 13 July 2026 showed an allegation of the applicant's homosexual orientation, a category for which the 20% figure cannot be regarded as representative, and recalls that under Articles 53(2) and 44(1), point (b), of Regulation (EU) 2024/1348 the border procedure must cease at any stage at which the conditions are no longer met, with the consequent authorisation to enter the territory and application of the ordinary procedure.