Detention of Foreign Nationals and Justification of Extensions: Cassation No. 16364/2025 Clarifies the Obligations of the Justice of the Peace

The ruling of the Court of Cassation, First Section, No. 16364 of April 28, 2025 (filed April 30, 2025) represents a fundamental piece in the delicate balance between public safety protection and the individual guarantees of foreign nationals detained in Centres for the Repatriation of Aliens (CPR). The Supreme Court annulled with referral the decree of a Justice of the Peace of Trapani who had validated the further extension of detention by merely making a generic reference to police reports. Below, we analyze the core of the decision, the regulatory references, and the practical implications for operators.

The Regulatory Framework: From Decree-Law 145/2024 to Law 187/2024

Decree-Law of October 11, 2024, No. 145, converted with amendments by Law of December 9, 2024, No. 187, has significantly impacted the regulation of administrative detention under Article 14 of Legislative Decree 286/1998 (Consolidated Law on Immigration). Among the main innovations are:

• extension of the maximum total detention period up to 18 months;
• provision for "further" extensions beyond 12 months, subject to review by the Justice of the Peace;
• strengthening of the motivational burden in cases of persistent identification needs or social dangerousness.

However, the legislation has not affected the "restrictive of personal liberty" nature of detention, which remains subject to the reservation of law and jurisdiction enshrined in Article 13 of the Constitution and Article 5 of the ECHR.

The Core of the Court of Cassation's Decision

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 decree by which the Justice of the Peace validates the further extension of detention in a repatriation centre cannot be limited to referring to police reports without reproducing their content and, in particular, without explaining on what concrete elements the identification of the foreign national is considered probable, as provided for by Article 14, paragraph 5, of Legislative Decree of July 25, 1998, No. 286, because the measure affects an inviolable right, the limitation of which is guaranteed by the absolute reservation of law under Article 13 of the Constitution, and the "per relationem" justification, although admissible, cannot be entirely devoid of any indication attesting to its endorsement by the decision-maker. (Conf.: Section 1 Civ., No. 610 of 11/01/2022, Rv. 663963-01).

The particularly dense maxim emphasizes two key aspects:

• Specific Justification: the Justice of the Peace must reproduce, at least in summary, the content of the police reports and explain why the adduced elements make the identification of the detained person or the need for further extension probable.
• Limits of "Per Relationem" Justification: referring to third-party documents is permissible, but it is necessary to explicitly state the "critical endorsement" of the reasons contained therein. In their absence, the decision violates Article 111 of the Constitution on the duty to provide justification and Article 13 of the Constitution on personal liberty.

The Court also refers to its own case law (Cass. civ. 610/2022) which, even in civil matters, had stigmatized the same motivational deficits concerning personal liberty.

Operational Implications for Lawyers and Operators

The ruling offers valuable guidance for those assisting foreign nationals during the validation or extension of detention:

• Verify that the order sets out concrete facts to support the probability of identification or repatriation.
• Check that the Justice of the Peace does not limit themselves to standard phrases ("having seen the police reports"), but cites objective data (requests for consular cooperation, technical times, search results).
• In the absence of such elements, plead the violation of Article 14, para. 5, TUI, Article 13 of the Constitution, and Article 5 of the ECHR, requesting immediate release pursuant to Article 606 of the Code of Criminal Procedure in the appeal to the Court of Cassation.
• Note that the Constitutional Court has already been seized (pending referral orders) on the compatibility of the new maximum detention periods with constitutional principles.

Conclusions

Cassation No. 16364/2025 reiterates that the personal liberty of a foreign national cannot be sacrificed for mere administrative needs lacking concrete factual verification. It is incumbent upon the Justices of the Peace to provide a substantive justification, not merely a "per relationem" one, justifying every day of deprivation of liberty. Lawyers, for their part, now have an additional tool to challenge unjustified extensions and assert in court the respect for constitutional and European guarantees.