Administrative Detention of Foreign Nationals: The Court of Cassation (Judgment no. 32342/2025) and the Expanded Right to Review

The Court of Cassation, with judgment no. 32342 of September 30, 2025, has issued a key ruling on the administrative detention of foreign nationals. By overturning a decision of the Court of Appeal of Palermo, the Supreme Court establishes that the precautionary nature of detention allows for the raising of issues not raised during the validation judgment to be considered during the review phase, thereby strengthening protections for the individuals involved.

The Core Principle: Pre-existing Issues in Review

The decision, presided over by Dr. M. B. and with Dr. V. G. as rapporteur, concerns the possibility for the recipient of a pre-removal detention order to raise, in a request for review, issues that pre-existed the validation judgment and were not previously raised. This expands the defense guarantees for foreign nationals.

In matters of administrative detention of foreign nationals under the procedural regime following Legislative Decree of October 11, 2024, no. 145, converted, with modifications, by Law of December 9, 2024, no. 187, with a request for review of the pre-removal detention order, the recipient of the measure pursuant to Article 15, paragraph 3, of Directive 2008/115/EC, or the applicant for international protection, pursuant to Article 9, paragraph 5, of Directive 2013/33/EU, may raise issues that pre-existed the validation judgment and were not raised therein, as the measures in question are precautionary in nature and judicial review thereof is not conducive to the formation of res judicata.

This principle is innovative. Unlike in other proceedings, the Court of Cassation has recognized the "precautionary" nature of detention. The order is not final, and judicial review does not produce the effects of "res judicata." It is not an irrevocable decision. This principle protects personal liberty, guaranteed by Article 13 of the Constitution and Article 5, paragraph 1, letter F, of the ECHR.

Regulatory Context and Reasoning

The judgment falls within the framework of Legislative Decree 145/2024, converted by Law 187/2024, which reformed administrative detention. European directives are central: Article 15, paragraph 3, of Directive 2008/115/EC (Return Directive) and Article 9, paragraph 5, of Directive 2013/33/EU (Reception Conditions Directive) govern the rights of those subject to removal orders and applicants for international protection.

The reasons include:

• Precautionary Nature: A preventive and provisional measure, not a final sanction, requiring flexibility in review.
• Effectiveness of Protection: New issues ensure more comprehensive judicial protection.
• Absence of Res Judicata: The validation judgment does not establish res judicata, therefore there is no preclusion for pre-existing elements.
• Protection of Personal Liberty: A fundamental right that demands maximum guarantees.

Conclusions: Enhanced Guarantees for Rights

Judgment no. 32342/2025 strengthens procedural guarantees for detained foreign nationals, allowing for a broader defense. Lawyers and practitioners will be able to present arguments and evidence even after validation. For those detained, there is a greater opportunity to assert their rights and obtain a thorough review. This is a significant step towards a system that, while managing migration flows and security, upholds the centrality of the individual and their fundamental rights.