Interim decree (Article 35-ter(4), first sentence, of Legislative Decree 25/2008) — with the decree of the Justice of the Peace of Trieste issued in the same case · R.G. 4385/2026 (e G.d.P. Trieste, R.G. 1738/2026)
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The ministerial decree identifying the border and transit zones pursuant to the new Article 28-bis of Legislative Decree 25/2008 has not yet been adopted: in the absence of that source the accelerated procedure at the border was applied without the conditions of Article 43(1), point (a), referred to by Article 45(1) of Regulation (EU) 2024/1348 being met, and its effects must be eliminated already at the interim stage. The Tribunal converts the procedure from Article 35-ter to Article 35-bis of Legislative Decree 25/2008 and, in application of paragraph 3 of the latter, declares that the contested measure is automatically suspended by the effect of the lodging of the appeal and for the whole duration of the proceedings.
⚠️ The Ministerial Decree of 21 July 2026 on the border zones was published in the Official Gazette on 10 August 2026, six days after this decision. On the point see Trib. Trieste R.G. 4748/2026, according to which the ministerial decree must exist at the time the procedure is started.
Decree under Article 35-ter(4) of Legislative Decree 25/2008 of the Tribunal of Trieste (judge Marco Brandolin): three pages that rule out the applicability of the border procedure for lack of the ministerial decree on the border zones and draw from this the conversion of the procedure. The contested refusal had been adopted by the Commissione territoriale of Trieste on 14 July 2026 pursuant to Article 28-ter of Legislative Decree 25/2008, in the accelerated border procedure under Article 42(1), point (j), and Article 45(1) of Regulation (EU) 2024/1348.
Article 45(1) refers to Article 43(1), which allows the border procedure to be started only for an application made at an external border crossing point or in a transit zone; and Article 28-bis of Legislative Decree 25/2008, in the text resulting from Decree-Law 100/2026, leaves it to a decree of the Minister of the Interior to identify those zones.
“although Article 28-bis clearly states that the conduct of the procedure in question requires the issuing of a decree of the Ministry of the Interior identifying the border and transit zones, that source has not yet been adopted.”
It follows that the conditions of Article 43(1), point (a), of Regulation (EU) 2024/1348 were not met and that the effects produced by the procedure must be eliminated “already in today's interim phase”. In the same sense, in proceedings on a complaint under Article 5-quinquies of Legislative Decree 142/2015, the Trieste decrees of 7 August and of 8 August.
The prerequisite having fallen away, “the procedure followed in the present proceedings must be changed, Article 35-bis of Legislative Decree 25/2008 and not Article 35-ter being applicable”; paragraph 3 of the former therefore applies, and the disapplication of the border procedure excludes the exception of Article 68(3) of Regulation (EU) 2024/1348, “with the consequent re-expansion of the general rule of automatic suspension”. The operative part records that the conditions are not met, orders the conversion of the procedure and declares the contested measure automatically suspended for the whole duration of the proceedings.
The day before, the Justice of the Peace of Trieste (judge Francesco Benincampi, R.G. 1738/2026) had revoked the measure alternative to detention applied under Article 14(1-bis)(a) of Legislative Decree 286/1998 — PDF. While the request for authorisation to remain is pending, the prohibition of removal applies, so that the Questore “erroneously considered the obligation to return enforceable”; and, that prerequisite being lacking, “the requirements for the application of the measures alternative to detention at the C.P.R. are not met either”. This is the same order of verification affirmed on the same date by Cass. no. 24430/2026.
Editorial note. In the decree of the Justice of the Peace, Article 35-bis(5) and Article 35-ter(2) and (4) are attributed by oversight to “Legislative Decree 286/98” instead of Legislative Decree 25/2008. The appellant is a Colombian national, a potential victim of trafficking and suffering from diabetes: information reported by the defence and not inferable from the text of the decisions.
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