Cassazione n. 15755/2025: jurisprudential trajectories on the detention of foreigners after the annulment of expulsion

With ruling no. 15755 filed on April 22, 2025, the Court of Cassation intervenes again on the delicate balance between public security and the personal freedom of irregular foreigners. The case originates from a decree validating the detention issued by the Justice of the Peace of Milan pursuant to art. 14, paragraph 4, legislative decree 286/1998, subsequently appealed to the Court of Cassation after the prefectural expulsion decree had been annulled in court. The Supreme Court annuls the restrictive measure without referral due to the subsequent lack of a legal basis.

The regulatory context and the novelty of decree-law 145/2024

The administrative detention regime was recently amended by decree-law of October 11, 2024, no. 145, converted into law 187/2024. The text extended the cases and maximum duration of detention, raising questions of compatibility with art. 13 of the Constitution and art. 5 of the ECHR. Despite the expansion of prefectural powers, the purely executive purpose of the measure remains firm: to ensure the removal of the foreigner subject to an expulsion or rejection order.

The ruling's headnote

In the matter of administrative detention of foreign persons 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 judicial annulment of the prefectural expulsion decree, which occurred during the appeal to the Court of Cassation against the decree validating the detention adopted by the Justice of the Peace pursuant to art. 14, paragraph 4, legislative decree of July 25, 1998, no. 286, entails the annulment without referral also of the latter measure due to the subsequent lack of a legal basis, given that the detention measure is always instrumental to the execution of an expulsion or rejection decree.

Comment: the Court reiterates that personal freedom can only be restricted if strictly necessary for the execution of a valid measure. When the expulsion measure ceases to exist, the detention loses its raison d'être and becomes illegitimate. The principle, in line with art. 5 of the ECHR, strengthens judicial control over restrictive measures and requires the Public Administration to constantly monitor the persistence of the prerequisites.

Operational implications for defense

The ruling offers strategic insights for those who protect the rights of foreigners:

• Focus on the procedural sequence: promptly challenging the expulsion decree can indirectly affect the detention measure.
• Use of art. 620 of the Code of Criminal Procedure: in the Court of Cassation, it is possible to request annulment without referral due to an original or subsequent lack of legal basis.
• Reference to constitutional and European standards: the lawyer must always invoke art. 13 of the Constitution and art. 5 of the ECHR to strengthen the request for release.
• Monitoring of suspensions: when expulsion is suspended or annulled in the first instance, the cessation of detention must be immediately requested.

Dialogue with previous case law

This is not the first time the Court of Cassation has affirmed the ancillary nature of detention: rulings no. 9556/2025 and no. 2967/2025 – cited by the Court itself – had already outlined the same principle. However, today's decision consolidates the orientation within the framework of the new decree-law 145/2024, hindering expansive interpretations that could create "detentions without cause."

Conclusions

Ruling 15755/2025 represents an important safeguard for the personal freedom of foreigners, acting as a bulwark against the drifts of a system that risks chronicizing administrative detention. For legal practitioners, it is an authoritative precedent to refer to in courtrooms and in negotiations with administrative authorities, with a view to an effective balance between security needs and fundamental rights.