Decree on the validation of the measure alternative to detention (Article 6(2)(b) and (d), and Article 6-quater of Legislative Decree 142/2015; Article 14(1-bis) of Legislative Decree 286/1998) · R.G. 33590/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The request for validation of the measure alternative to detention initiates civil proceedings governed by the rules on the burden of proof: it is for the Administration to prove the elements on which the detention is based upstream and the alternative measure downstream. Point (b) of Article 6(2) of Legislative Decree 142/2015 requires "factual elements" showing that the person belongs to the categories of Article 1 of Legislative Decree 159/2011, not a mere reference to the legislation: if the Questura produces neither fingerprint records nor the criminal record, and the criminal record obtained by the court of its own motion shows two convictions for robbery close in time but no declaration of habitual offending (Articles 102 and 103 of the Criminal Code), dangerousness exists but not the habitual offending required by the provision. Point (d) requires proof of the indicators of absconding — non-compliance with a measure must be documented — and reference to the need to determine elements of the application that cannot be obtained without detention, which is absent here. The measure of the obligation to report weekly to the Questura is not validated.
The Tribunal of Milan (judge Elena Masetti Zannini) does not validate the obligation to report weekly to the Questura imposed by the Questore of Monza and Brianza, on 4 August 2026, on an applicant released from the CPR, under Article 6(2)(b) and (d) and Article 6-quater of Legislative Decree 142/2015. The proceedings were conducted in written form under Article 14(1-bis) of Legislative Decree 286/1998 (Consolidated Immigration Act) (Constitutional Court no. 280/2019; Court of Cassation no. 18766/2026), with the appointment of a court-appointed defence lawyer; no brief was filed. The decree complements Trib. Milano 33108 on the premise — the alternative measure requires, upstream, the grounds for detention — shifting the emphasis to the burden of proof.
The request for validation “initiates civil judicial proceedings based […] on the civil procedural rules on the burden of proof”: it is for the Authority to prove the elements on which the detention and the measure are based. The Questura produced only the documentation of the protection procedure — certificate of expression of the wish to apply, an extract, partly illegible, of the Commission of Monza's determination under Article 42(1), point (f), of Regulation (EU) 2024/1348, information sheet, form on voluntary departure, information record — “from which no element of the alleged habitual commission of offences can be inferred”; neither fingerprint records nor criminal record.
Point (b) refers to Article 13(2)(c) of Legislative Decree 286/1998 and to the categories of Article 1 of Legislative Decree 159/2011, which require “factual elements” (Court of Cassation no. 26173/2023; Court of Cassation no. 10022/2026 on the Justice of the Peace who merely refers to precedents). The criminal record obtained by the court of its own motion shows two convictions for robbery and attempted robbery, the second committed five months after the first sentence was served: “a dangerousness to public order and security therefore emerges”, but “the prerequisite of the provision at issue, namely habitual offending, is lacking”, which presupposes an assessment by the criminal court (Articles 102 and 103 of the Criminal Code) that never took place. It also notes that the person concerned, who entered in 2015 as an unaccompanied minor, has been in Italy for about eleven years without any element having been produced for a global assessment of his personality.
On point (d): the false declaration of identity is unsupported; non-compliance with a measure is neither indicated nor proved; the lack of a passport and the evasion of checks are in re ipsa for someone who arrived from the Sicilian coast, but it is not known whether he was received as a minor. Decisive, again, is the failure to invoke the first prerequisite — the elements of the application to be obtained — with reference to Court of Cassation no. 21523/2026.
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