Interim order (Article 700 of the Code of Civil Procedure during a complaint under Article 5-quinquies of Legislative Decree 142/2015) · N.R.G. 5022-1/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
An interim application under Article 700 of the Code of Civil Procedure, brought together with the complaint under Article 5-quinquies of Legislative Decree 142/2015 against the authorisation to reside in a specific place, is admissible in order to guarantee immediate and effective protection of the rights to freedom of movement and personal liberty pending the decision, by virtue of Articles 24 and 113 of the Constitution and Article 47 of the EU Charter. The correctness of the determination of the President of the Commissione territoriale activating the border procedure falls within the review of the court hearing the complaint, incidenter tantum, it being the sole premise of the contested act; where the applicant alleges that he never received it, it is for the determining authority to document its premises. The condition of Article 43(1), point (b), of Regulation (EU) 2024/1348 — apprehension linked to irregular crossing of the border — requires an actual crossing and a particularly close temporal and spatial connection, the only conditions under which the legal fiction of non-entry under Article 6 of Regulation (EU) 2024/1356 operates. Ministerial Decree of 5 August 2019 cannot be used for these purposes, and Ministerial Decree of 21 July 2026, although it entered into force after the case, does not resolve the difficulty of precisely delineating border and transit places.
The Tribunal of Trieste (judge Michela Bortolami) suspends the enforceability of the measure of the Prefect of Trieste of 30 July 2026 — imposing an obligation to reside at the CAS “Casa Malala” in Fernetti for twelve weeks, pursuant to Article 5-ter(2) of Legislative Decree 142/2015 — and orders the immediate interruption of its implementation. The order is made under Article 700 of the Code of Civil Procedure, during a complaint under Article 5-quinquies, in respect of an Afghan national.
In the absence of a typical interim instrument suited to suspending the prefectural measure in the period between the filing of the complaint and the decision, Article 700 of the Code of Civil Procedure is “the only possible interpretative outcome” to avoid the vulnus to the rights of defence (Articles 24 and 113 of the Constitution) and to the right to an effective remedy (Article 47 of the EU Charter). The approach is aligned with the inaudita altera parte decrees of the Tribunal of Palermo of 29 June and of Bologna of 10 July 2026, as well as with Trib. Genova 9094.
Although not independently challengeable, the determination of the President of the Commission — ordering the accelerated border procedure — may be reviewed by the court hearing the complaint incidenter tantum: otherwise “the role of review would be emptied of content” over the downstream act, which is a “consequential act that is bound to follow” (referring to Trib. Bologna, order of 23 July 2026, and to the CJEU, Samba Diouf, C-69/10). In the present case the Prefettura did not enter an appearance and did not produce the determination TS02I8R767/30.07.2026 referred to in the contested act: where the applicant alleges that he never received it, the burden of documenting its premises lies with the determining authority.
From the documents “it clearly emerges” that there was no apprehension “following search activity or border control, nor any temporal and spatial connection with the crossing of an external border”: a condition required by Article 43(1), point (b), of Regulation (EU) 2024/1348 and to which the legal fiction of non-entry under Article 6 of Regulation (EU) 2024/1356 is tied, which “applies only where there is a particularly close temporal and spatial connection” with the crossing. Ministerial Decree of 5 August 2019 relates to a different procedure; “Ministerial Decree of 21 July 2026, although it entered into force after the present case, has not resolved this difficulty” of the precise delineation of the border and transit places.
The authorisation to reside under Article 5-ter of Legislative Decree 142/2015 cannot be accompanied by an enforcement regime comparable to detention: Article 5-quater(3) indicates breach of the measures of the former as a possible premise for the adoption of the latter, and not the reverse. The absence of typified instruments of judicial control over the actual implementation of the measure “reinforces” the admissibility of Article 700 of the Code of Civil Procedure, with a ruling putting an end to the treatment actually imposed.
The order is linked to the line of case law on “apprehension” under Article 43(1), point (b) — Trib. Milano 36319 — and to the incidental review of the presidential determination in Trib. Bologna of 23 July 2026.
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