A Tunisian national entered the Italian territory from Lampedusa and was taken to Pozzallo, where he lodged an application for international protection in the transit zone of Ragusa. The applicant, already recipient of an expulsion order, was lacking a passport or any equivalent document and claimed to have fled his country of origin because he was persecuted for his physical characteristics that gold miners require for their business. The Questura has ordered the detention of the applicant on basis of the Legislative decree of 14 September 2023 which specifies that a foreign national has to secure a financial guarantee to avoid detention of during the access to territory procedure and the applicant failed to provide such financial security.

The Tribunal of Catania did not validate the detention of the Tunisian applicant, considered that the applicant cannot be detained for the sole purpose of examining the application for international protection as provided by Article 6 of the Legislative Decree 142/2015 and Article 8 of the recast APD and that the detention must be regarded as an exceptional measure affecting the personal freedom as enshrined under Article 13 of the Italian Constitution. 

The Tribunal  recalled the CJEU judgment of 8 November 2022 C, B and X v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), Joined cases C-704/20 and C-39/21, according to which Articles 8 and 9 of the Directive 2013/33/EU must be interpreted as precluding an applicant for international protection from being detained solely on the ground that  ‘he cannot satisfy his own needs, secondly, from such detention taking place without the prior adoption of a reasoned decision ordering detention and without the necessity and proportionality of such a measure being examined'. The CJEU judgement looked into the obligation of judicial authorities to review ex officio the lawfulness of detention decisions either in return of in international protection procedures. Additionally, the tribunal recalled the CJEU judgment of 14 May 2020, FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság, C-924/19 C-925/19 to substantiate that detention cannot take place without a prior adoption of a reasoned detention order and without having examined the necessity and proportionality of such a measure.  Furthermore, the Tribunal of Catania found that the Ministerial Decree of 14 September 2023 is not compatible with Articles 8 and 9 of the Directive 2013/33/EU as interpreted by the CJEU in the abovementioned judgments.

Considering that the Quaestor's decision was not accompanied by an appropriate statement of reasons, the Tribunal of Catania also mentioned a landmark case from the the Italian Constitutional Court of 11 July 1989, where it ruled that the national legislation which is incompatible with the EU aquis must not be applied by national courts.

In the present case, the Tribunal also find a violation of recital 38 of the Directive 32/2013/EU because the applicant lodged an application for international protection in a zone other than that of entry and where the applicant has been forcibly moved without a previous coercive measures. 

Considering that pursuant to Article 43 of the Directive 2013/32/EU detention is justified only in order to enable the Member State concerned to examine the case before granting the right to enter its territory to an applicant for international protection, or rejected  unfound when the application is not admissible, the Tribunal of Catania found that in the present case that the Territorial Commission did not take a decision regarding the right of the applicant to enter the national territory yet. In addition, the tribunal took in consideration that according to Article 10 of the Italian Constitution the mere provenance of the asylum seeker form a safe country of origin cannot automatically deprive him of the right to enter the Italian territory to apply for international protection.

The Tribunal of Catania did not validate the detention measure because the conditions for the detention of the asylum seeker were not met.