Administrative Detention of Foreign Nationals and Custodial Sentence: Cassation Ruling 32338/2025

The Court of Cassation, with its recent ruling no. 32338 of September 30, 2025, has provided a significant interpretation regarding the delicate balance between the administrative detention of foreign nationals and the serving of a custodial sentence. This decision, presided over by Dr. B. M. and authored by Dr. G. V., is situated within a complex regulatory framework, outlined by Decree-Law of October 11, 2024, no. 145, converted with amendments by Law of December 9, 2024, no. 187, and holds fundamental importance for understanding the procedural guarantees and rights of foreign nationals within our legal system.

The case examined by the Supreme Court concerned the appeal filed by J. P.M. R. G. against a decision of the Court of Appeal of Palermo dated July 25, 2025. At the heart of the issue was the legality of extending the administrative detention of an asylum seeker, despite the impossibility of carrying out repatriation within the maximum prescribed periods, due to the necessity of serving a sentence of two years and four months of imprisonment.

Administrative Detention and its Purpose

Administrative detention of foreign nationals is a coercive measure, not criminal in nature, aimed at ensuring the execution of an order for removal from national territory (expulsion, refusal of entry). Its application is strictly regulated and subject to verification of the impossibility of carrying out the removal through less restrictive means than personal liberty. Current legislation, particularly the Consolidated Act on Immigration (Legislative Decree 286/1998) and subsequent amendments introduced, for example, by Decree-Law 145/2024 and Law 187/2024, establishes maximum time limits for detention, usually twelve or eighteen months, precisely to protect the fundamental right to personal liberty, enshrined in Article 13 of the Constitution and Article 5 of the European Convention on Human Rights (ECHR).

Jurisprudence has always emphasized the exceptional nature of such a measure, which must be proportionate and strictly necessary to achieve its purpose. The question before the Court of Cassation was whether serving a custodial sentence could affect the calculation of the time limits for administrative detention already ordered or being extended.

Suspension of Detention during Custodial Sentence: The Cassation Ruling

The Supreme Court, with the ruling in question, has provided a clear solution to this query, establishing a legal principle of great importance:

In matters of administrative detention of foreign nationals 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 execution of the administrative detention order, or its extension, remains suspended during the period in which the individual is undergoing the serving of a sentence, similar to what occurs with preventive measures. (In application of this principle, the Court deemed the second extension of detention for an asylum seeker to be lawful, notwithstanding that repatriation could not be carried out within the maximum effective term of the administrative measure, set at twelve or eighteen months, given the necessity of serving a sentence of two years and four months of imprisonment).

This principle is of crucial importance. The Court of Cassation has equated the situation of administrative detention with that of preventive measures, for which the suspension of execution during the serving of a custodial sentence is already widely recognized. The underlying logic is that if an individual is already deprived of personal liberty by virtue of a criminal conviction, the simultaneous execution of an administrative detention order would, in effect, be superfluous and would not add further deprivation of liberty. More importantly, it would not allow the purpose of detention itself, which is repatriation, to be achieved, as the individual is detained for another reason. In other words, administrative detention cannot produce its effects as long as the person is subject to detention for criminal reasons.

The implications of this decision are manifold:

• **Calculation of Time Limits:** The period spent in prison serving a sentence is not counted towards the calculation of the maximum duration of administrative detention. This means that once the custodial sentence is completed, the period of detention can resume or commence, and the maximum limits (twelve or eighteen months) will be calculated from that point onwards.
• **Lawfulness of Extensions:** The ruling deemed the second extension of detention lawful, even though repatriation could not be carried out within the ordinary maximum terms, precisely because the period of criminal detention "froze" the effectiveness of the administrative measure.
• **Coordination between Jurisdictions:** A clear criterion for coordination between criminal and administrative jurisdictions regarding personal liberty is established, avoiding overlaps or waste of resources and ensuring greater coherence of the system.

This interpretation aligns with the principles of necessity and proportionality that must always guide measures restricting personal liberty, as reiterated by the Constitutional Court on several occasions, including in relation to Article 13 of the Constitution, which protects personal liberty.

Legal and Jurisprudential References

The Court referred to a broad legal and jurisprudential framework to support its decision, including:

• Article 13 of the Italian Constitution.
• Article 5, paragraph 1, letter f) of the European Convention on Human Rights (ECHR), which allows the lawful detention of a person to prevent their irregular entry into the territory or to subject them to an expulsion or extradition procedure.
• Legislative Decree of September 6, 2011, no. 159 (Anti-Mafia Code), which governs preventive measures, cited by analogy.
• Directive 2008/115/EC of the European Parliament and of the Council (the so-called Return Directive), which sets common standards and procedures for the return of third-country nationals found to be illegally staying in the territory.
• Legislative Decree of July 25, 1998, no. 286 (Consolidated Act on Immigration).
• Decree-Law of October 11, 2024, no. 145, and Law of December 9, 2024, no. 187, which introduced significant amendments regarding the management of migratory flows and detention.

The ruling is in line with previous rulings of the Court of Cassation (e.g., Rv. 288218-01, Rv. 287895-01, Rv. 287886-01, Rv. 287885-01, Rv. 288219-01), which have progressively defined the scope of administrative detention and its intersections with other forms of deprivation of liberty.

Conclusions

Ruling no. 32338 of 2025 by the Court of Cassation represents a firm point in the complex matter of administrative detention of foreign nationals, clarifying that the execution of such a measure is suspended during the serving of a custodial sentence. This decision not only offers legal certainty to legal practitioners and involved administrations but also strengthens the protection of individuals' fundamental rights, ensuring that deprivation of personal liberty always occurs in compliance with the principles of necessity and proportionality, avoiding duplication and ensuring logical coordination between different forms of liberty restriction. It is a clear example of how jurisprudence, drawing on constitutional and European principles, continues to shape and refine the application of laws in an area as sensitive as immigration and public safety.