Tribunal of Trieste, 7 August 2026

⚠️ The Ministerial Decree of 21 July 2026 on border zones was published in the Gazzetta Ufficiale on 10 August 2026, three days after this decision; it supplements the 2019 decree without replacing it, so the objection of vagueness made here retains its significance. On the moment by which the ministerial decree must exist see Trib. Trieste R.G. 4748/2026.

The Tribunale di Trieste, holiday-period section (judge Dr Lavinia Claudia Dinoi), suspended inaudita altera parte the decision by which the Prefect of Gorizia had authorised the complainant to reside "exclusively" at the former C.A.R.A. centre in Gradisca d'Isonzo for a maximum of twelve weeks (Article 5-ter(2) of Legislative Decree 142/2015), ordering the immediate interruption of its implementation.

The ministerial decree of 5 August 2019 does not support the new border procedure

The ministerial decree required by the new Article 28-bis of Legislative Decree 25/2008 has not been adopted, and the President of the Commissione territoriale applied the border procedure by referring to the ministerial decree of 5 August 2019, which designates as border or transit zones the entire territory of the provinces of Trieste and Gorizia. The Tribunal disagrees for three reasons. The 2019 decree implements a repealed provision: it was adopted in implementation of Article 28-bis(1-quater), then in force, to extend the accelerated procedure to the applicant apprehended for having evaded controls — a condition that the current regulatory provision no longer requires; it is therefore "referable to an entirely different legal framework". Moreover, in 2019 the border procedure did not yet exist as such. Finally the decree confuses "border" and "transit zone": it does not clarify whether those territories contain "an external border crossing point" and which one it is, so that "the solution […] according to which the entire territory of the province is to be considered relevant cannot be shared" — an observation all the more compelling because Article 43(1)(a) of Regulation (EU) 2024/1348 makes the start of the procedure depend on the application being made at a crossing point or in a transit zone.

The authorisation to reside and its manner of enforcement

On the periculum the Tribunal gives weight to what was alleged about the concrete enforcement of the measure: prohibition on leaving the centre, absence of the badge to open the gates, impossibility of going to counsel's office, escort by staff for the hearing. Such treatment, if confirmed on the merits, "would be entirely disproportionate", resulting in "a compression of personal liberty entirely comparable to detention, with undue confusion, and therefore breach, of the measures referred to in Articles 9 and 10 of Directive (EU) 2024/1346". Article 5-quater(3) of Legislative Decree 142/2015 moreover indicates breach of the authorisation to reside as a condition for ordering detention or alternative measures: the two levels are distinct and consequential, so that the authorisation "can never be accompanied by a regime of enforcement comparable to detention".

The procedure

The Tribunal considers atypical interim relief under Article 700 of the Code of Civil Procedure admissible "in the absence of typical interim instruments suited to ensuring immediate and effective protection of the right", referring to the decrees of the Tribunals of Palermo and Bologna; admissibility is tied to review of the material implementation of the measure, for which no typified instruments exist. This is the point on which the decree diverges from the decree of 8 August, issued by the same Tribunal, which recognises the fumus as to the absence of the ministerial decree but denies the periculum because the complaint under Article 5-quinquies of Legislative Decree 142/2015 is the typical remedy.

The hearing for confirmation, modification or revocation — and for decision on the merits under Article 5-quinquies(3) of Legislative Decree 142/2015 — is set for 17 September 2026.