Detention of Foreigners and the Right to Defence: Analysis of Cassation Ruling No. 16440/2025

With decision No. 16440 of 28 April 2025 (filed 30 April 2025), the Court of Cassation has once again defined the scope of guarantees afforded to a "foreign" national 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 timelines 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 personal liberty of a foreigner 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 Cassation Court in Ruling No. 16440/2025

In matters of administrative detention of foreign nationals under the procedural regime following Decree-Law of 11 October 2024, No. 145, converted, with amendments, by Law of 9 December 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 measure 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), therefore identifies two essential requirements:

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

Consequently, the prior delivery of a written translation of the Quaestor's decree is not necessary, provided that the foreigner 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 claim the nullity of the validation only 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 foreigner.

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 ECtHR (cf. L.M. v. Italy, 2013). The Justice of the Peace must therefore note in the minutes that the foreigner has declared to have understood the content of the translation.

Conclusions

Ruling No. 16440/2025 holds significant weight in the dialogue between the rigour 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 foreigner to fully understand the measure and to challenge it, if necessary, in accordance with the law.