Concurrent Jurisdiction in the Administrative Detention of Foreign Nationals: An Analysis of Cassation Ruling No. 23936 of 2025

The administrative detention of foreign nationals is a measure that impacts fundamental rights. The Court of Cassation, with ruling No. 23936 of June 26, 2025, has provided crucial clarification on the jurisdictional competence for the review of such measures. The ruling introduces "concurrent jurisdiction," a mechanism that balances unitary assessment with territorial proximity, strengthening safeguards for detained individuals. This decision is set to significantly guide judicial practice.

The Regulatory Framework and the Judicial Question

Administrative detention is governed by Legislative Decree of October 11, 2024, No. 145 (converted by Law of December 9, 2024, No. 187) and European directives 2008/115/EC and 2013/33/EU, which guarantee the right to review. Identifying the competent judge is a complex issue that touches upon procedural efficiency and the protection of the migrant's rights.

In the context of the administrative detention of foreign nationals under the procedural regime following Legislative Decree of October 11, 2024, No. 145, converted, with amendments, by Law of December 9, 2024, No. 187, regarding the review of the measure, permitted to the individual awaiting expulsion under Article 15, paragraph 3, of Directive 2008/115/EC, and to the applicant for international protection under Article 9, paragraphs 3 and 5, of Directive 2013/33/EU, there exists the concurrent jurisdiction of the judge who issued the original measure to be reviewed, due to needs related to the unity of assessment concerning the continuation of the prerequisites for the initial measure or subsequent extensions, and, alternatively, that of the judge within whose district the detention center where the migrant is held at the time of the request is located, giving prominence to the criterion linked to territorial proximity as it is capable of valuing greater closeness to new situations or subsequent circumstances that may invalidate the continued validity of the measure.

The Supreme Court, with ruling No. 23936/2025 (rapporteur Dr. Z. M. G., president Dr. D. M. G.), has established "concurrent jurisdiction." The detained individual can choose between the judge who issued the initial measure (or extensions) and the judge of the district of the repatriation detention center (CPR) at the time of the request. This dual option optimizes the effectiveness of judicial protection.

The Pillars of Concurrent Jurisdiction: Unity and Proximity

The decision is based on two core principles:

• Unity of Assessment: The judge who issued the initial measure is competent to review the persistence of the conditions. This ensures coherence, uniformity, and an organic analysis of the detention history, preventing conflicting decisions.
• Territorial Proximity: The judge of the detention center's location is competent for the protection of the detained individual. This criterion values "greater closeness to new or subsequent situations," allowing for rapid responses to changes in the migrant's conditions (e.g., new evidence, urgent issues) that could render the detention unlawful. It is a guarantee of effective judicial protection, in line with Article 13 of the Constitution.

The choice of forum by the detained individual or their legal representative offers a flexible procedural strategy.

Conclusions: Efficiency and Protection of Rights

Cassation ruling No. 23936/2025 is a significant step. With concurrent jurisdiction, the Court has balanced decisional coherence and prompt intervention, crucial for the protection of fundamental rights. This decision facilitates access to justice for detained individuals and consolidates Italy's alignment with European directives and constitutional principles. It provides lawyers with more effective tools to protect the interests of migrants, reconciling public safety and individual liberties.