Forced Expulsion and Article 3 ECHR: Cassation No. 15763/2025 Redefines Limits on Detention of Foreign Nationals

With ruling 15763/2025, the Court of Cassation returns to a highly sensitive issue: the boundary between public security needs and the protection of fundamental rights of foreign nationals subject to expulsion. The case concerned a Pakistani citizen deemed dangerous to public order due to a conviction under Article 270-bis of the Italian Criminal Code. Despite this, the Supreme Court annulled the detention order and forced expulsion with referral, recalling the principles of the European Convention on Human Rights (ECHR) and the recent Law 187/2024 on administrative detention.

The Regulatory Framework

Decree-Law 145/2024, converted by Law 187/2024, has tightened detention measures, but these rules must be read in conjunction with:

• Article 3 ECHR, which prohibits torture and inhuman treatment;
• Article 13 of the Italian Constitution, which protects personal liberty;
• Legislative Decree 145/2015, which governs the reception of international protection applicants.

The Court reiterates that the conventional guarantee is of an "inalienable" nature (see ECtHR, Soering v. United Kingdom), therefore no domestic provision can legitimize an removal to unsafe countries.

The Ruling's Headnote

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, forced expulsion constitutes a violation of Article 3 ECHR whenever the foreign national, due to the risk of death, torture, or inhuman and degrading treatment that threatens them in their country of origin, must be directed towards another State that can host them, with the consequence that both the seriousness of the crime for which the foreign national has been convicted, and the circumstance that they do not wish to reveal their place of residence pending the proceedings, are irrelevant, as the recognition of international protection cannot be based on respect for an alleged bond of trust with the State, nor does any obligation of cooperation or reciprocity exist on the part of the asylum seeker.

The Court states that the right not to be subjected to inhuman treatment is absolute: it cannot be curtailed even in the face of convictions for terrorism offenses, nor can it be made conditional on the foreign national's "cooperation" with the authorities.

Practical Implications for Lawyers and Public Administrations

The decision offers some firm points:

• Centrality of individual risk: Judicial examination must ascertain the situation in the country of origin, also drawing on COI, UN reports, and EASO.
• Irrelevance of criminal dangerousness: The territorial commission or the judge cannot deny protection because the individual has been convicted.
• No obligation to be locatable: Being unlocatable does not constitute an obstacle to protection, in line with Cass. 21667/2013.
• Obligations for Police Headquarters: Before ordering expulsion, the possibility of reception in a "safe third country" must be verified pursuant to Article 14, paragraph 1, of Legislative Decree 286/1998.

The lawyer can therefore challenge detention orders by directly invoking Article 3 ECHR and case law; Public Administrations must adapt their practices, avoiding automatisms based on criminal records.

Conclusions

Ruling No. 15763/2025 confirms the line of the Court of Cassation: absolute protection against torture and inhuman treatment prevails over any assessment of internal security. For legal professionals, it is a reminder of the need to always argue based on the actual risk to the foreign national and to ensure the compatibility of domestic laws with the ECHR. For the administration, it implies the obligation of a substantive and not merely formal assessment before proceeding with forced expulsion.