Administrative Detention of Foreign Nationals: The Burden of Proof for Questor Delegation in Judgment No. 23934/2025
The issue of administrative detention of foreign nationals is a matter of great importance in the Italian legal landscape, intersecting administrative law, public security, and fundamental individual rights. In this context, the recent Judgment No. 23934, filed on June 26, 2025, by the Court of Cassation (President D. M. G., Rapporteur T. G.), provides important clarifications regarding the burden of proof in cases challenging the legality of a detention extension order.
The Regulatory Framework for Administrative Detention
Administrative detention of foreign nationals is a measure restricting personal liberty, provided for by the Italian legal system for specific purposes, such as identification or expulsion, and primarily governed by Legislative Decree No. 286 of July 25, 1998 (Consolidated Law on Immigration), particularly Article 14. This measure has undergone recent legislative amendments, notably with Decree-Law No. 145 of October 11, 2024, converted with modifications by Law No. 187 of December 9, 2024. The execution of these orders, including their extension, falls under the purview of the Questure (Police Headquarters), often through delegated officials.
The Crucial Issue: Delegation and the Burden of Proof
The Cassation Court's ruling arose from a case where the defense counsel for a detained individual, R. P.M. C. F., had raised an objection regarding the illegality of the detention extension order due to the absence of delegation to the official (a substitute commissioner) who had signed the extension request, who was not the Questor. The Justice of the Peace of Trapani, on May 30, 2025, failed to rule on this objection, leading to the annulment and referral of the decision by the Cassation Court. The central issue thus revolved around who had to prove the existence or absence of such delegation, constituting the proof of a so-called "negative fact."
In matters of administrative detention of foreign nationals under the procedural regime following Decree-Law No. 145 of October 11, 2024, converted, with modifications, by Law No. 187 of December 9, 2024, the detained individual who alleges the illegality of the extension order pursuant to Article 14, paragraph 5, of Legislative Decree No. 286 of July 25, 1998, due to the lack of delegation to the signing official other than the Questor, bears the burden of proving this negative fact. Therefore, if they fail to obtain the relevant certification from the administration, they are nevertheless required to urge the judge to acquire information or to utilize investigative powers with the administration itself, which cannot evade the relevant response. (Case concerning the annulment and referral of the detention extension decree which failed to rule on the objection by which the defense counsel alleged the absence in the records of the Questor's delegation in favor of the substitute commissioner who had signed the extension request).
The headnote of the judgment clarifies a fundamental principle of the burden of proof, also referenced by Article 2697 of the Civil Code, albeit in an administrative context and with profound implications for personal liberty, protected by Articles 13 of the Constitution and 5 of the European Convention on Human Rights. The Cassation Court establishes that it is incumbent upon the detained individual, or their defense counsel, to prove the absence of delegation. However, recognizing the difficulty of proving a
