A Tunisian national appealed against the decree issued by the Justice of the Peace of Turin which validated the order of the Questor of Agrigento based on which the applicant was detained at the Centre for repatriation in Turin pursuant to Article 14 of Legislative Decree 286/1998. The applicant claimed to have disembarked in Lampedusa and to have been immediately taken to the police station in Agrigento where he was informed of the entry refusal because he was arrested upon entry in Italy by evading border controls and without applying for international protection. The applicant has been notified at the same time of a detention order against him, and claimed not to have been informed of the possibility of applying for international protection and as such he expressed his willingness to make an application for international protection later.

The applicant’s contested the detention measure before the Justice of the Peace based on three grounds: the manifest illegality of the precondition for refusal of entry, the failure to inform the applicant of the possibility to seek international protection and the detention order. The Judge of Peace validated the detention, rejecting the arguments raised by the applicants there was no evidence of manifest illegality of the order to refuse entry and because the applicant expressed in the information sheet that he came to Italy to find work and does not require international protection. The Judge of Peace also highlighted that the expulsion order has been assessed individually.

The applicant appealed against this decision before the Court of Cassation on three grounds. He first argued that the Judge of Peace erred in considering that the failure to express the intention to seek asylum at the time of disembarkation because the applicant had not been informed on the possibility of apply for international protection. The applicant further stated that since he was not duly informed of the possibility to seek asylum, his right to apply was impeded and he could not timely express his wish for protection. The applicant also claimed that there has been an infringement of Article 360 of the Civil Code, Legislative Decree 286/1998 and Article 4 of Protocol 4 of the European Convention on Human Rights in relation to the prohibition of collective expulsions and prohibition of refoulement.

The Court of Cassation found that the first ground of appeal was well founded, as according to Article 17 of Legislative Decree 46/2017 the border police forces are required not to limit information provision to forms of international protection but first to inform on the existence and methods for applying for international protection. As such, the court noted that border police are obliged to provide third-country nationals or stateless persons present on the territory, including at the border and territorial waters or transit zones, the relevant information on modalities and venues for submitting an application for international protection. The Court of Cassation noted that the Judge of Peace did not fulfil this obligation on prior information of the foreign national of the possibility of requesting international protection, when validating the detention measure. The administration did not clarify when and how the foreign national was informed on the possibility to apply for protection. The court noted the Quaestor declaration that the applicant did not intend to avail himself of international protection and the Judge of Peace lack of investigation on information provision. The Court of Cassation recalled the Article 8 of the recast Directive 2013/32/EU and Legislative Decree 142/2015 regarding the obligation of public officials to provide the relevant information to recognize and process applications for international protection. The Court of Cassation also referred to the relevant guidelines developed by EASO.

The Court of Cassation also mentioned the ECtHR judgement  Hirsi Jamaa and others (Somalia and Eritrea) v Italy, 27765/09, of 23 February 2012 and stated that the lack of information is one of the main obstacles to access the  asylum procedures and that there is an absolute right to information for those who are subject to a removal order. The court also recalled the judgement Khlaifia and Others v Italy, 16483/12, 15 December 2016 and the recent judgement of the ECtHR, J.A. and Others v Italy, No 21329/18, 30 March 2023 to state that Italy has an obligation to provide information  even if there are difficulties that national authorities might encounter in managing migration flows.
The Court of Cassation concluded that in the context of an expulsion procedure, the possibility of making an asylum application is a fundamental guarantee and the Judge of Peace must investigate the lawfulness of a detention order,  in view of the requirements of Article 14 of Legislative Decree 286/1998 in relation to Article 5 of the ECHR.

For the reasons above, the Court of Cassation annulled the contested decision and ruled that the Justice of Peace judge should have investigated whether there was sufficient information on whether the applicant received adequate information within the time-limits laid down in Article 10b. In the absence of such proof, the Justice of Peace should have not validated the detention order. The Court of Cassation ruled that the detention order can neither be validated nor extended.