Interim decree and final order (complaint under Article 5-quinquies of Legislative Decree 142/2015) · R.G. 8695/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
Articles 5-ter, 5-quater and 5-quinquies of Legislative Decree 142/2015 regulate neither the concrete content of the authorisation to reside in a specific place nor the manner of fulfilling the information obligations imposed by Article 9(5) of Directive (EU) 2024/1346: it is precisely this gap that requires particularly strict verification that the applicant was informed, in a language he understands, of the concrete content of the obligation, of the consequences of its breach and of the features of the border procedure. A reference to a form with a link or QR code is not enough. Application of the border procedure is also unlawful where the screening form records the applicant's referral to the anti-trafficking body and the determination asserts in a merely apodictic way that the conditions of Articles 21(2) and 53 of Regulation (EU) 2024/1348 are absent. Verification of the lawfulness of the border procedure is carried out ex officio; the Eurostat figure has only indicative value. By contrast, the ground on the incompetence of the President of the Commission and the one on de facto detention are rejected: the obligation to return by a set time affects freedom of movement, not personal liberty under Article 13 of the Constitution.
The Tribunal of Palermo (judge Michele Guarnotta), deciding the complaint under Article 5-quinquies of Legislative Decree 142/2015 of a Pakistani national subject to the border procedure (Articles 43, 45 and 54 of Regulation (EU) 2024/1348), revoked the decision of the Prefect of Agrigento of 18 June 2026 that authorised him to reside exclusively at the reception centre of Siculiana (AG) for a maximum of twelve weeks, making material reception measures conditional on actual residence in that place (Article 5-ter(4) of Legislative Decree 142/2015). The same Prefect's decision is at the origin of the complaint R.G. 8694/2026.
By decree of 27 June 2026 (PDF) the enforceable effects had already been suspended inaudita altera parte: Article 5-quinquies provides for the complaint but contemplates no typical interim measure, whence the admissibility of atypical protection under Article 700 of the Code of Civil Procedure.
Articles 5-ter, 5-quater and 5-quinquies of Legislative Decree 142/2015 do not regulate the information obligations imposed by Article 9(5) of Directive (EU) 2024/1346, and it is precisely this gap that «requires particularly strict verification, in the individual case, that the information required by Union law has actually been provided». The Administration did not prove that it had informed the complainant of the concrete content of the authorisation, of the consequences of its breach and of the features of the border procedure: the decision was drafted in Italian, does not appear to have been translated into Urdu and bears only the words «for notification». The «mere reference […] to the form containing a hyperlink or a QR code» is not sufficient.
The screening form recorded the complainant's referral to the anti-trafficking body. Article 21 of Regulation (EU) 2024/1348 requires the accelerated procedure and the border procedure not to be applied — or to be terminated — where support for applicants in need of special procedural guarantees cannot be effectively ensured; the presidential determination instead asserted «apodictically» that the conditions of Articles 21(2) and 53 were absent. Since subjection to the border procedure is the precondition for the authorisation under Article 5-ter of Legislative Decree 142/2015, the unlawfulness of the former affects the Prefect's decision.
The ground on the incompetence of the President of the Commissione territoriale is unfounded, as he «does not exercise an autonomous power introduced by Article 43» but verifies the regulatory conditions. The plea of de facto detention is also unfounded: citing CJEU, Grand Chamber, FMS, C-924/19 PPU and C-925/19 PPU, the Tribunal finds that the obligation to return by 10 p.m. «relates exclusively to freedom of movement», not to personal liberty under Article 13 of the Constitution.
Verification of the lawfulness of the border procedure is carried out ex officio. The determination «is limited to a generic reference to the Eurostat statistical figure» without indicating its source: the figure has only indicative value and does not replace individual assessment, in line with R.G. 9739/2026. Costs are set off owing to the novelty of the issues.
The PDF is published in redacted form to protect personal data.
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