Administrative Detention of Foreigners: Cassation Court Ruling No. 18637 of 2025 and Judicial Review

The administrative detention of foreign citizens is a measure of extreme delicacy, profoundly impacting personal liberty and fundamental rights. In a constantly evolving regulatory context, the Court of Cassation, with its recent Ruling No. 18637 of May 16, 2025, has provided fundamental clarifications on the role of the judicial authority and the allocation of the burden of proof, strengthening protections for foreigners. This ruling follows the modifications introduced by Legislative Decree of October 11, 2024, No. 145, converted with amendments by Law of December 9, 2024, No. 187, which redefined the procedural regime in this matter.

The Regulatory Context and the Nature of Administrative Detention

Administrative detention is a coercive measure that allows authorities to detain third-country nationals in designated centres for purposes related to identification, verification of their nationality, or preparation for their repatriation. It is a restriction of personal liberty that, while not criminal in nature, must be surrounded by rigorous guarantees, in line with Article 13 of the Italian Constitution and Article 5 of the European Convention on Human Rights (ECHR).

Recent legislative reforms have sought to balance the need for administrative efficiency with the safeguarding of individual rights. It is in this scenario that the Cassation Court intervenes to precisely delineate the boundaries of judicial review over the legality of such measures, emphasizing the necessity of full and effective scrutiny.

The Crucial Role of the Judicial Authority: Review of Legality and Burden of Proof

The core of the Cassation Court's ruling lies in the affirmation of the active and penetrating role of the judicial authority. Ruling No. 18637/2025 establishes that the judge cannot limit themselves to a formal verification but must exercise substantial control over the prerequisites for the legality of the detention, stemming from both Union and national law. A particularly significant aspect is the judge's ability to ex officio ascertain any failure to comply with a prerequisite for legality, even if not raised by the interested party.

In matters of administrative detention of foreign persons under the procedural regime following Legislative Decree of October 11, 2024, No. 145, converted, with amendments, by Law of December 9, 2024, No. 187, the judicial authority must review the compliance with the prerequisites for legality, derived from Union and national law, of the measure of validation or extension of the measure imposed on a third-country national, based on the elements of the case brought to its attention, as supplemented or clarified during the adversarial proceedings before it, and must ex officio ascertain any failure to comply with a prerequisite for legality, even if not raised by the interested party, taking into account that the burden of proving the legality of the restrictive measure applied lies with the administration, while the interested party is required to document their claims of manifest illegality of the same.

This summary clarifies two fundamental points:

• Ex Officio Review: The judge has the power and duty to act proactively, identifying any defects in legality even if not raised by the interested party. This provision is crucial for protecting individuals who may be in a vulnerable position or have limited knowledge of legal procedures.
• Allocation of the Burden of Proof: It is reiterated that the burden of proving the legality of the detention measure rests with the Administration. This principle reinforces the guarantee that deprivation of liberty is always the exception, not the rule, and must be supported by solid and proven grounds. The interested party, on the other hand, is required to document their claims regarding manifest illegality of the measure.

The principle of adversarial proceedings, a cornerstone of any fair trial, is also valued, as the elements of the case file must be supplemented or clarified during the proceedings before the judge, ensuring transparency and the possibility of defence.

Implications of the Ruling for the Rights of Foreigners

The pronouncements of the Cassation Court have a significant impact on the protection of the rights of foreign citizens subjected to administrative detention. The Court, implicitly recalling principles derived from European directives such as Directive 2008/115/EC (the so-called Return Directive) and Directive 2013/33/EU (the so-called Reception Conditions Directive), emphasizes the need for the measure to always be proportionate, necessary, and supported by adequate investigation. Judicial review is therefore not a mere formal act but a thorough verification that must ensure the full adherence of the measure to the principles of legality and the protection of fundamental rights.

Conclusions: Strengthened Protection in Balancing Interests

Ruling No. 18637 of 2025 by the Court of Cassation represents an essential reference point in the landscape of immigration law. It consolidates the judge's role as the ultimate guarantor of fundamental rights, putting a brake on possible abuses or superficiality in the management of administrative detentions. By reiterating the centrality of legality review and clarifying the allocation of the burden of proof, the Court offers an important tool for the protection of foreign citizens, promoting a fairer balance between the state's security needs and respect for individual dignity and freedom. It is a significant step forward towards a system that, despite its complexity, strives to be increasingly equitable and respectful of constitutional and European principles.