Decree on validation of the alternative measure to detention (Article 6(3) and Article 6-quater of Legislative Decree 142/2015; Article 14(1-bis) of Legislative Decree 286/1998) · R.G. 33108/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The alternative measure to the detention of the asylum seeker provided for by Article 6-quater of Legislative Decree 142/2015 presupposes that the conditions for detention under Article 6 of the same decree are met: if they are lacking, the measure has no legal basis, deprivation and restriction of liberty differing only in degree and intensity and not in nature. Where the application is made inside the CPR under paragraph 3, the assessment of whether it is abusive must be conducted on empirical criteria (length of stay in Italy without ever applying for asylum, opportunities for dealing with the public administration, previous permits, social network, conduct in the proceedings) and, in the absence of proof that the information on the possibility of applying was given at the time of entry, the short time elapsed and the absence of contrary elements rule out that the application is a sham. The alternative measure of a weekly reporting obligation at the Questura is not validated.
The Tribunal of Milan (judge Elena Masetti Zannini) did not validate the obligation to report weekly to the Questura, imposed by the Questore of Milan under Article 6(3) of Legislative Decree 142/2015 on an Egyptian national who had been detained in the Milan-Corelli CPR and was released at the same time as he made the application for international protection, regarded as a sham because made «at the same time as a return operation».
The decree starts from a systemic observation. The alternative measure of Article 6-quater of Legislative Decree 142/2015 presupposes that the conditions for the detention of the applicant under Article 6 of Legislative Decree 142/2015 are met «upstream»: if they are lacking, the measure has no legal basis. The reason lies in the characterisation of non-detentive custody: «less restrictive than deprivation of liberty even though it may involve a certain level and intensity of coercion», the difference from detention being one of degree and intensity, not of nature (citing ECtHR, Nolan and K. v. Russia, 12.2.2009). The grounds for detention are exhaustive, listed in the Reception Conditions Directive 2024/1346 and transposed nationally.
On the assessment under Article 6(3), the Tribunal accepts the approach that, in the absence of exhaustive statutory parameters, identifies empirical criteria: length of stay in the territory without ever having applied for protection; established opportunities for dealing with the public administration — the only criterion mentioned by Article 8(3), point (d), of the Reception Conditions Directive, under the heading of «opportunity to access the asylum procedure»; previous residence permits not followed by an application; family or kinship network; failure to express the wish at the validation hearing before the Justice of the Peace or in the days immediately following.
In the present case the investigation shows a discrepancy in the dates of entry: the decree of the Prefect of Milan — based on Questura documents — indicates 1 January 2025 from the Ventimiglia border; the information sheet of 25 July 2026 is neither translated nor signed; the person concerned, at the validation hearing, states that he has been in Italy «for about twenty days» from Portugal; a second information sheet, of 29 July, translated and signed, gives 5 July 2026 as the date of entry by air. None of the sheets records the notice of the possibility of applying for protection. It must therefore be presumed that the information was received only on return to the CPR after the validation of detention — «as happens in all cases». The short time elapsed and the absence of contrary elements rule out that the application is a sham: the conditions for detention are lacking and, with them, those of the alternative measure.
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