Detention of Foreign Nationals and the Right to Defence: Analysis of Supreme Court Ruling No. 16440/2025

With decision No. 16440 of April 28, 2025 (filed April 30, 2025), the Court of Cassation once again defines the scope of guarantees afforded to foreign nationals ('alloglotti') subjected to administrative detention. The ruling stems from the new framework introduced by Decree-Law 145/2024, converted into Law 187/2024, which redefined the timing and procedures for judicial review of detentions ordered by the Quaestor in immigration matters.

The Regulatory Framework for Administrative Detention

Article 14 of Legislative Decree 286/1998, as amended, allows for the deprivation of liberty of foreign nationals without a residence permit for a maximum of eighteen months. However, the Constitution (Article 13) and Article 5 of the ECHR require that any restriction be promptly validated by a judicial authority and that the individual understands the reasons for the measure, being able to defend themselves effectively. Decree-Law 145/2024 has impacted the procedure, introducing shorter deadlines for validation and enhancing the importance of the hearing before the Justice of the Peace.

Principles Affirmed by the Supreme Court in Ruling No. 16440/2025

In matters of administrative detention of foreign nationals under the procedural regime following Decree-Law of October 11, 2024, No. 145, converted, with amendments, by Law of December 9, 2024, No. 187, the right to defence of the foreign national is satisfied by the assistance, at the validation hearing, of an interpreter who translates the reasons that led to the issuance of the Quaestor's order against them, as well as by the oral translation of the content and outcome of the aforementioned hearing.

The Court, confirming the orientation expressed by the United Sections (No. 15069/2024), thus identifies two essential requirements:

• the interpreter must be present at the validation hearing;
• the translation may be only oral, provided it is complete, clear, and immediate.

Consequently, the prior delivery of a written translation of the Quaestor's order is not necessary, provided that the foreign national has the opportunity to understand – in real-time – the content of the document and to communicate with their lawyer. The Supreme Court expressly refers to Article 143 of the Code of Criminal Procedure, extending to administrative matters a principle already established in criminal law: 'adequate' linguistic assistance is sufficient when it allows for the concrete exercise of the right to defence.

Practical Implications for Lawyers and Police Forces

The ruling clarifies some operational doubts that arose after the 2024 reform:

• those responsible for drafting the minutes are not required to prepare written translations, reducing time and costs;
• the lawyer may only plead the nullity of the validation by demonstrating that the oral translation was deficient or incomplete;
• police authorities must ensure the availability of qualified interpreters, under penalty of the possible release of the foreign national.

The reference to Article 24 of the Constitution is significant: the adequacy of linguistic assistance is assessed concretely, on a case-by-case basis, according to the standard of 'effectiveness' established by the ECHR (cf. L.M. v. Italy, 2013). The Justice of the Peace must therefore note in the minutes that the foreign national has declared understanding the content of the translation.

Conclusions

Ruling No. 16440/2025 holds significant weight in the dialogue between the strictness of migration policies and the protection of fundamental rights. While not introducing an obligation for written translation, the Court elevates the validation hearing to the central point of defence guarantees. Operators must ensure that the interpreter's presence is not merely formal: their translation must enable the foreign national to fully understand the measure and to contest it, if necessary, in accordance with the law.