Cassazione, sentence no. 15759/2025: insufficient reasoning in detention orders for foreigners

With decision no. 15759 filed on April 22, 2025, the First Section of the Court of Cassation returns to the delicate issue of administrative detention of foreigners, governed by Legislative Decree 145/2024, converted into Law 187/2024. The case concerned H. P. M. R., for whom the Court of Appeal of Bari had extended the stay in a repatriation detention center (CPR). The appeal filed by the interested party raised the question of the adequacy of the reasoning in the extension order.

The scope of review by the Court of Cassation

Article 14, paragraph 6, of Legislative Decree 286/1998 limits the grounds for appeal against validation or extension orders for detention to letters a), b), and c) of Article 606, paragraph 1, of the Code of Criminal Procedure. This means that the review of legality is confined to violations of law, non-observance of procedural rules, and defects in reasoning, excluding, for example, grounds relating to the merits of the case.

The Court of Cassation reiterates that "non-existent or merely apparent reasoning" constitutes ipso iure a violation of law: if the lower court judge does not address a potentially decisive element, the defect can be raised in the court of cassation. This is in line with the case law of the Court of Cassation (e.g., Cass., Sez. U., 33451/2014) and with Article 13 of the Constitution, which requires that any restriction of personal liberty be supported by precise reasoning.

In the context of administrative detention of foreign nationals under the procedural regime following Legislative Decree of October 11, 2024, no. 145, converted, with amendments, by Law December 9, 2024, no. 187, in the judgment of legality against orders for validation or extension of detention, only appeals formulated pursuant to Article 606, paragraph 1, letters a), b), and c) of the Code of Criminal Procedure are admissible, pursuant to Article 14, paragraph 6, of Legislative Decree of July 25, 1998, no. 286. The review that can be requested by this means also pertains to the verification of the correct fulfillment of the obligation to provide reasoning, as the notion of non-existent or merely apparent reasoning of the order, which constitutes a violation of law, must include cases where there has been a complete omission to address a potentially decisive element, in the sense that, considered individually, it would be such as to determine an opposite outcome of the judgment.

The summary highlights two essential aspects:

• the selectivity of admissible grounds for appeal, to protect the need for speed in proceedings concerning personal liberty;
• the extension of the concept of "apparent reasoning" to all cases where the judge fails to examine decisive facts, even if not expressly alleged by the interested party.

Practical impact for defense

In light of the ruling, the defense counsel for a detained foreign national must:

• identify the "potentially decisive elements" from the first instance (e.g., availability of accommodation, vulnerability conditions, integration paths);
• duly report these elements to the validation/extension judge;
• in case of failure to examine them, file an appeal with the Court of Cassation, alleging the violation of Article 14, paragraph 6, of Legislative Decree 286/1998 in conjunction with Article 606, letter c), of the Code of Criminal Procedure.

The reference to the guidelines of the European Court of Human Rights (judgments Saadi v. the United Kingdom, Khlaifia v. Italy) reinforces the approach that requires the lower court judge to conduct a concrete assessment of the proportionality and necessity of detention, especially after the 2024 reform which extended the maximum duration to 18 months.

Conclusions

Sentence no. 15759/2025 is part of a trend that protects the personal liberty of foreigners, imposing a stringent reasoning obligation on the judge who orders or extends detention. For legal professionals, this translates into the need for a targeted defense strategy, which highlights decisive elements and, in the court of cassation, focuses on denouncing the merely apparent reasoning. The Firm can assist its foreign clients by thoroughly verifying the existence of legal prerequisites and preparing appeals based on solid arguments, in light of the principles clarified by the Supreme Court.