Decree on the validation of the detention of the applicant (Article 6(2), points (b), (c) and (d), of Legislative Decree 142/2015) · R.G. 28137/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The validation of the detention of an applicant under Article 6(2) of Legislative Decree 142/2015 verifies whether the grounds exist in the specific terms indicated by the Questore, starting from the fingerprint records and the criminal record obtained ex officio. Point (b), through the reference to Article 13(2)(c) of the Consolidated Immigration Act and to the categories of Article 1 of Legislative Decree 159/2011, requires a factual, objective and current assessment of the person's entire personality (Cass. no. 26173/2023): a single complaint filed while at liberty and no convictions in the criminal record do not amount to habitual conduct. Point (c) requires a concrete and current dangerousness, which convictions do not automatically prove (Const. Court no. 202/2013) and which is lacking where the conviction indicated by the Questore is not borne out by the criminal record. Point (d), reformulated by Decree-Law 100/2026 with a reference to the new Article 5-sexies, remains subject to two cumulative conditions: the risk of absconding assessed case by case and the need to determine elements of the application that cannot be obtained without detention; a decree that does not indicate them — and could not, if the Commissione had already decided the application almost a year earlier — does not comply with the provision (Cass. no. 21523/2026). Integration in the meantime — work, documented accommodation, promise of employment — removes the abstract indicators of a risk of absconding. Validation refused.
The Tribunale di Milano (judge Dr Elena Masetti Zannini) refuses to validate the detention in the CPR in via Corelli of a Tunisian national, ordered by the Questore of Padua on 2 July 2026 under Article 6(2), points (b), (c) and (d), of Legislative Decree 142/2015. The application for protection had been rejected by the Commissione of Padua on 8 July 2025 and the appeal was pending before the Tribunale di Venezia, which had granted interim relief on 29 January 2026; an expulsion of 2021 had remained unenforced. It is the first decision, among those collected, to apply Article 6 as rewritten by Decree-Law 100/2026 and the new Article 5-sexies on the risk of absconding.
The Questore based point (b) on the categories of Article 1 of Legislative Decree 159/2011 and point (c) on convictions for narcotics offences. The Tribunal starts from Cass. no. 26173/2023: the judicial review "must concern […] verification of the existence of the conditions for the foreigner's belonging to one of the categories", with an objective assessment, currency and an overall examination of the personality. From the criminal record obtained ex officio "nothing emerges"; from the fingerprint records only a single complaint of 2 August 2024, while a precedent of 2021 belongs to the brother. Hence no habitual conduct, and no concrete and current dangerousness: convictions do not operate automatically (Const. Court no. 202/2013) and for the one indicated by the Questore "there is no confirmation whatsoever in the criminal record".
Point (d) remains made up of two hypotheses "linked by the conjunction 'and'": the need to determine the elements of the application that cannot be obtained without detention and the risk of absconding, now referred to Article 5-sexies of Legislative Decree 142/2015, which lists the circumstances and requires assessment "case by case". The decree sets out recitals 19, 23, 24 and 28 and the definitions of Article 2 of Directive (EU) 2024/1346. In the case at hand, the false statement of identity is not borne out by the records; the failure to comply with the expulsion and the absence of a passport are to be read in the light of the individual context. But the decisive defect is the failure to invoke the first condition: the application "was rejected on 8 July 2025, therefore almost a year before the detention", so that the provision "probably could not even find application in the concrete case". Cass. no. 21523/2026 is cited, which holds generic an appeal that does not indicate which elements remain to be determined, and the "only rebuttable" presumption of absconding arising from the lack of a passport. Integration — continuous work albeit without a contract, statements of accommodation, promise of employment — completes the picture.
The same reasons return in Trib. Milano 33106 and, for the alternative measure, in Trib. Milano 33590.
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