Cassazione penale n. 16444/2025: apparent motivation in the validation of foreigner detention

The judgment of the Court of Cassation, Section I Criminal, no. 16444 of April 28, 2025 (filed April 30, 2025), returns to a sensitive issue: judicial review of administrative detention of foreign citizens under decree-law 145/2024, converted into law 187/2024. The Justice of the Peace of Caltanissetta had validated the police commissioner's decree without a real verification of its reasons. The Court of Cassation, accepting the appeal of the interested party, annuls with referral, emphasizing the need for effective reasoning, under penalty of appeal pursuant to art. 606, para. 1, letters b) and c) of the Code of Criminal Procedure.

The regulatory framework after decree-law 145/2024

The 2024 immigration security package has profoundly affected art. 14 of the Consolidated Law on Immigration, expanding the grounds for detention in detention centers. However, art. 13 of the Constitution and art. 5 of the ECHR require that any restriction of personal liberty be ordered and supervised by an independent judicial authority. The Justice of the Peace, called upon to validate the police commissioner's decree within 48 hours, cannot limit himself to a formal ratification: he must weigh factual and legal elements, also in light of the guidelines of the ECtHR (recall the rulings Saadi v. United Kingdom and Khlaifia v. Italy).

The Court's ruling and its meaning

In the matter of administrative detention of foreign persons 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 decision of the Justice of the Peace that validates the detention decree without validating and verifying the reasons stated by the police commissioner is vitiated by apparent motivation, which can be challenged in cassation pursuant to art. 606, paragraph 1, letters b) and c), Code of Criminal Procedure.

Comment: the Court stigmatizes the practice, still widespread, of validating the detention of foreigners automatically. "Apparent motivation" occurs when the judge merely reproduces the police commissioner's decree or uses standard formulas ("deemed legitimate"), without real scrutiny. In such cases, the decision is appealable for violation of law and defect of motivation, with the remedies provided by art. 606 of the Code of Criminal Procedure.

The role of the Justice of the Peace and motivational review

The ruling emphasizes three aspects:

• Burden of verification: the judge must ascertain the existence of the prerequisites (uncertain identity, risk of flight, obstacles to return) and provide reasons for those stated by the police commissioner.
• Effective adversarial proceedings: the foreigner, assisted by a lawyer, has the right to present their reasons; the decree's silence on these submissions constitutes a defect of motivation.
• Legality review: in case of apparent motivation, an appeal to the Court of Cassation is the appropriate tool, as both the violation of art. 13 of the Constitution and the defect under art. 606, letters b) and c) of the Code of Criminal Procedure can be asserted.

Practical implications for lawyers and operators

Lawyers assisting foreign citizens must:

• request a full copy of the police commissioner's file;
• promptly raise exceptions regarding lack of motivation;
• document any personal vulnerabilities (minors, refugee status, victims of trafficking) in light of EU Directives 33/2013 and 115/2008;
• consider an appeal to the Court of Cassation, specifically indicating the defect of "apparent motivation".

Cassation jurisprudence thus consolidates an orientation already emerged with judgments no. 9556/2025 and 2967/2025, aimed at strengthening the substantive guarantees of personal liberty.

Conclusions

Judgment no. 16444/2025 reiterates that the detention of a foreigner cannot become an automatic measure. The Justice of the Peace is required to provide concrete and individualized reasoning, under penalty of annulment by the Court of Cassation. A stern warning that the protection of public safety must coexist with the fundamental rights enshrined in the Constitution and the ECHR.