Cassation No. 16386/2025: What Changes for the Translation of Documents in the Detention of Foreign Nationals?

With ruling No. 16386, filed on April 30, 2025, the First Criminal Section of the Court of Cassation addresses a highly topical issue: the necessity (or not) of translating the order for validation or extension of detention provided for by Decree-Law 145/2024, converted into Law 187/2024, into the foreigner's language. The case concerned S. P. M., a non-EU citizen, who alleged a violation of his right to defense due to the lack of translation of the document. However, the Supreme Court upheld the decision of the Court of Appeal of Cagliari, rejecting the appeal.

The Regulatory Framework and the Question of Legitimacy

Article 14, paragraph 6, of the Consolidated Law on Immigration (Legislative Decree 286/1998) governs detention in Centres for the Repatriation of Foreign Nationals. The recent Decree-Law 145/2024 introduced a stricter procedural regime but did not explicitly state the obligation to translate the validation or extension into the language known to the individual. The appellant, referring to the European arrest warrant (Law 69/2005), raised a doubt regarding constitutional legitimacy—for violation of Articles 13, 24, and 111 of the Constitution—as well as compatibility with Article 5 of the ECHR. The Court deemed the issue "irrelevant." Let's see why.

In the matter 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 omission of translation, into the language of the detained foreign national who does not speak Italian, of the order validating or extending the measure does not in itself constitute a cause for nullity, in the absence of specific elements indicating prejudice regarding the full exercise of the right to defense, as it is not in any case permitted for the party to file an appeal to the Court of Cassation personally and they are recognized, even without personal expenses where the conditions for legal aid at state expense exist, the option to use a trusted interpreter for the translation of the document, with a possible postponement of the relevant deadline for appeal.

The maxim, if read carefully, rests on two cornerstones: absence of concrete violation of the right to defense and availability of protective measures (defense counsel/interpreter) already provided for by the legal system.

The Supreme Court's Reasoning

The Court of Cassation emphasizes Articles 143, 178, 606, and 613 of the Code of Criminal Procedure: nullity arising from a lack of translation is "relative" and requires proof of prejudice. In administrative detention, appeals are exclusively made through a defense counsel, meaning the foreigner can:

• request a trusted interpreter, also at the state's expense, if admitted to legal aid;
• obtain a postponement of the deadline for appeal to allow for translation;
• assert any concrete defects before the Court of Cassation pursuant to Article 606 of the Code of Criminal Procedure.

Since the appeal cannot be filed personally, the Court excludes an automatic invalidating effect: it is up to the defense to demonstrate that the lack of translation prevented the articulation of specific grievances.

Practical Implications for Defense Counsel and Administrations

The ruling offers useful guidance:

• Lawyers must meticulously document the link between the omitted translation and the curtailment of the adversarial principle.
• Police Headquarters and Justices of the Peace, although not obliged, would do well to provide standardized translations to prevent litigation.
• Detained foreign nationals must be informed—with the assistance of an interpreter—of the possibility of accessing legal aid at state expense.

This represents a balance between administrative efficiency and the protection of fundamental rights, in line with ECHR jurisprudence (cases Husayn v. Poland and Shamayev v. Georgia). The Court of Cassation refers to Article 117 of the Constitution, requiring, however, an interpretation consistent with supranational principles.

Conclusions

Ruling No. 16386/2025 does not deny the value of document translation: it relativizes its procedural impact, subordinating it to "concrete prejudice." For legal professionals, this means strengthening defense activities from the validation phase onwards, while for the legislator, the challenge remains to reconcile public security and individual guarantees, perhaps by explicitly incorporating the obligation to translate, as already occurs in matters of European arrest warrants. In the meantime, the main path remains the one indicated by the Court: ensuring an effective interpreter and defense counsel, because the right to defense cannot know linguistic barriers.