Tribunal of Messina, 22 July 2026

The Tribunale di Messina, Specialised Immigration Section (President Corrado Bonanzinga, reporting judge Paolo Lo Giudice, judge Simona Monforte), suspended the effect of the decision of the Commissione territoriale of Catania which had rejected as unfounded the application of a Tunisian national “pursuant to Article 39(3) of Regulation (EU) 2024/1348”, declaring it manifestly unfounded in application of Article 28-ter of Legislative Decree 25/2008 because “the case falls within the circumstances of Article 42(1), points (a), (e) and (j)” of the Regulation, with a simultaneous finding of an obligation to return and a three-year entry ban.

The decision is of particular interest on the law applicable over time. The Tribunale notes as a preliminary point that the case “is not governed by the rules introduced by Decree-Law 100 of 2026 (applicable to procedures initiated following applications for international protection made from 12 June 2026), but by the former rules”, citing Cass. no. 14851/2026, according to which “the expression of the wish to apply for international protection, even if not formalised, serves as the criterion for identifying the rules applicable over time, determining, for those purposes, the originating moment of the application and the regime of its conditions and effects”. In the present case the expression preceded 12 June 2026: the applicant had been placed in a CAS by order of the Prefettura as early as March 2026 — a circumstance that “accounts for a significant, qualified expression of the wish, objectively recognisable and taken up by the State system” — and the Commissione itself acknowledged an application made on 26 February 2026.

With the former rules thus applied, the Tribunale takes a second step of systemic importance. The principle of Cass. Joint Chambers (Sezioni Unite) no. 11399/2024 — under which the derogation from automatic suspension operates only if the Commissione correctly applied the accelerated procedure, failing which the ordinary procedure is restored and automatic suspension revives — does not concern only the applicant from a safe country of origin, but all cases of manifest unfoundedness covered by Article 28-ter of Legislative Decree 25/2008, as well as decisions of inadmissibility on a subsequent application: the conditions for the derogation from suspensive effect, in the light of Directive 2013/32/EU, are to be found not in the content of the rejection for manifest unfoundedness, but in the fact that the decision was taken at the end of a lawfully initiated accelerated procedure. The panel expressly acknowledges that it departs from the minority view, “in the past sometimes followed also by this Tribunale”, to the contrary.

In the present case the accelerated procedure was conducted irregularly, the time limits for the interview and for the decision having been exceeded: the short time limits of Article 28-bis(2) of Legislative Decree 25/2008 cannot be counted from formalisation by means of the C3 form, since the applicant had expressed the wish to apply for protection several months earlier, the moment from which the foreign national must be considered an applicant. The case therefore falls within none of the derogating cases of Article 35-bis(3), and the suspensive effect follows ex lege from the lodging of the appeal — an effect which the Tribunale declares, since it was not affirmed in the contested decision.