Cassazione, Sentence No. 15759/2025: Insufficient Reasoning in Detention Orders for Foreign Nationals

With decision no. 15759, filed on April 22, 2025, the First Section of the Court of Cassation revisits the delicate issue of administrative detention of foreign nationals, 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 his stay in a repatriation detention centre (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 appeal proceedings. This is in line with case law of the Court of Cassation (inter alia, 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 appeal proceedings against validation or extension orders for detention, only appeals formulated pursuant to Article 606, paragraph 1, letters a), b), and c) of the Code of Criminal Procedure are admissible, as per Article 14, paragraph 6, of Legislative Decree July 25, 1998, no. 286. The review that can be requested through 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 in the order, which constitutes a violation of law, must include cases where the judge has completely omitted to address a potentially decisive element, meaning an element that, considered individually, could have led to 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 Defence

In light of this ruling, the defence 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, formulate the appeal to 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 line of case law that protects the personal liberty of foreign nationals, imposing a stringent reasoning obligation on the judge who orders or extends detention. For legal practitioners, this translates into the need for a targeted defence strategy, which highlights decisive elements and, in the appeal proceedings, 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.