Interim decree (Article 35-bis(2) and (3) of Legislative Decree 25/2008) · N.R.G. 16068/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
To applications for international protection expressed before 12 June 2026, although the new procedural rules introduced by Decree-Law 100/2026 apply, the substantive rules in force before the entry into force of the EU Pact on Migration and Asylum continue to apply. An asylum application, although lacking the typical forms of lodging, is capable of producing its effects where it is addressed to an authority attributable to the State apparatus and displays a minimum degree of functional suitability to set the procedure in motion; the expression of the wish, even if not formalised, operates as the criterion for identifying the rules applicable over time and determines the moment of origin of the application (Cass. Ord. 18.5.2026, no. 14851). If, despite an expression of the wish documented at least on 25 May 2026, the Administration lodges the application only on 21 July 2026, the time limits of the accelerated procedure under Article 26(2-bis) of Legislative Decree 25/2008 are not complied with: the case is brought back to the ordinary procedure under Article 27 of Legislative Decree 25/2008 and the suspension of the enforceability of the contested measure is automatic under Article 35-bis(2) and (3); no need to rule on the request for suspension, referral to the designated judge for the setting of the merits hearing.
The Tribunal of Turin (judge Valerio Brecciaroli) declares that there is no need to rule on the interim request: the enforceability of the contested measure is «suspended ex lege» as a result of the recognised restoration of the ordinary procedure. The appellant, a Peruvian national, had expressed the wish to apply on 25 May 2026, but the Questura had arranged for the application to be lodged (C3 form) only on 21 July 2026, more than a month after the entry into force of Decree-Law 100/2026. The Commissione territoriale had applied Regulation (EU) 2024/1348 and Decree-Law 100/2026 to its decision, on the premise that the application had been lodged after 12 June 2026.
The decree grants the principal request for suspension ex lege by giving weight to the date of the expression of the wish rather than to that of the C3. Article 17(4) of Decree-Law 100/2026 refers to the «presentation» of the application: in light of the recent case law of the Court of Cassation (Cass. Ord. 18.5.2026, no. 14851), an asylum application, «although lacking the typical forms of lodging, is capable of producing its effects where it is addressed to an authority attributable to the State apparatus and displays a minimum degree of functional suitability to set the procedure in motion»; the expression of the wish, even if not formalised, «operates as the criterion for identifying the rules applicable over time, determining the moment of origin of the application».
In the present case the expression of the wish is documented «at least on 25.05.2026» (exhibit 6 of the appeal), whereas the lodging took place on 21.07.2026, «well beyond the time limit of three working days (or six in the case of an expression of the wish to apply for international protection to the border police) laid down in Article 26(2-bis) of Legislative Decree 25/08». The case is therefore brought back to the ordinary procedure of Article 27 of Legislative Decree 25/2008, with the consequent application of Article 35-bis(2), first sentence, and (3), first sentence, and the automatic suspension of the enforceability of the contested measure.
The decree confirms, four days later and with a different judge, the reading of Trib. Torino 16082/2026 (Alessandria): the expression of the wish is the act that anchors the applicable rules, and the Questura's delay in lodging is not neutral. It is also linked to Trib. Milano 31896 (Minieri), which a month later carries the same reading over to Legislative Decree 25/2008 and disapplies Egypt as a safe country of origin.
Our thanks to Mr Alessandro Praticò for sharing this decision.
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