Decree on the validation of the detention of the applicant (Article 6(2), points (c) and (d), of Legislative Decree 142/2015) · R.G. 33106/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
Article 6(5) of Legislative Decree 142/2015 provides that the presence of the detainee at the validation hearing is necessary, including remotely by audiovisual link, without exceptions: as a provision concerning personal liberty, to be interpreted strictly, the rules of criminal procedure on deferring the appearance of an arrested person do not apply by analogy. If the arrest of the detainee at the CPR makes it impossible to hear him within forty-eight hours, the proceedings have not been correctly instituted and the detention cannot be validated, whether or not counsel is present, because the person's right to be heard in a free interview remains. On the merits, dangerousness under point (c) cannot be inferred from complaints not shown to have led to a conviction, all the more so if the criminal record requested from the Public Prosecutor's Office has not arrived; point (d), even after the reference in Decree-Law 100/2026 to the new Article 5-sexies, requires, in addition to the risk of absconding, the need to determine elements of the application that cannot be obtained without detention, which the Questore must indicate (Cass. no. 21523/2026). Not validated.
The Tribunale di Milano (judge Elena Masetti Zannini) does not validate the detention at the CPR of via Corelli ordered by the Questore of Varese on 30 July 2026, under Article 6(2), points (c) and (d), of Legislative Decree 142/2015, of an Algerian national whose application for protection had been pending before the Commissione of Brescia since November 2025. On the evening before the hearing the detainee had been arrested at the CPR for aggravated damage to property, and the Questura declared it impossible to bring him back in time for a hearing within forty-eight hours.
The first ground is procedural. Article 6(5) of Legislative Decree 142/2015 “provides for the presence of the detainee at the validation hearing as necessary, albeit ‘remotely by audiovisual link’”; the words “where possible” relate to the link and allow the judge to go to the CPR, not to dispense with the hearing. As these are rules concerning personal liberty, “to be interpreted strictly”, the Code of Criminal Procedure on deferring the appearance of an arrested person for legitimate impediment does not apply by analogy. Since the detainee could not be heard, “it cannot be said that the proceedings were correctly instituted, on pain of breach of his right of defence”; the presence of counsel is irrelevant, because there remains “the person's right to be heard in a free interview at the (civil) validation hearing”. For this reason alone validation is refused.
On point (c) the Questore indicated “convictions” for theft and numerous criminal reports: the fingerprint records show identifications and arrests, including under aliases, but nothing from which a conviction can be inferred; the criminal record, requested from the Public Prosecutor's Office on 1 August and chased several times, had not arrived at the time of the decision. Dangerousness must be “current, serious and concrete” and convictions have no automatic relevance (Constitutional Court no. 202/2013): the condition is not met. On point (d), the decree repeats the approach of Trib. Milano 28137: two cumulative conditions, a risk of absconding to be assessed case by case under Article 5-sexies of Legislative Decree 142/2015 and the need to determine elements of the application that cannot be obtained without detention. Here the missed hearing prevents individual assessment and the Questore does not indicate those elements, although the application is pending before the Commissione; Cass. no. 21523/2026 is cited.
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