On 20 May 2016, the Prefect of Pescara issued an expulsion order against a Senegalese national. In view of its enforcement, on 28 April 2025 the Head of the Police Headquarters of Ancona ordered his detention in the Bari Repatriation Detention Centre (CPR). The Justice of the Peace of Bari validated the detention on the same day. On 9 May 2025 he was transferred to the CPR of Gjader in Albania. When he arrived there in the transit zone in Schengjin, he applied for international protection on 14 June 2025, which was rejected by the Rome Territorial Commission on 30 June 2025.
On the same day, the Rome Police Chief requested the validation of the decision to detain the person pursuant to Article 6(3) of Legislative Decree No 142 of 18 August 2025. This was rejected by the Court of Appeal of Rome on 4 July 2025, noting that ‘doubts remain as to the compatibility between national and Community legislation’.
The following day, for the same person the Bari Police Chief issued a new detention decision for 60 days extendable at the Bari-Palese CPR, with arguments related to the applicant’s danger to society, related to convictions for attempted murder and sale of narcotic substances. The Court of Appeal of Bari validated the order on 9 July 2025, stressing that not only the criminal records referred to in the decision of the Police Headquarters in Bari were relevant, but also those listed by the Rome Territorial Commission in the decision rejecting the asylum application, namely resistance to public officials and personal injuries, a prison order concerning a cumulative sentence for a continuous offence of production and trafficking of narcotic substances, as well as theft, which, taken together, would be capable of substantiating the argument that the foreign national has a deep-rooted capacity to contravene the law and, consequently, to conduct capable of constituting a danger to public order and security. The court noted that it was irrelevant that there was no evidence that he had received adequate information about his right to apply for international protection, since this was not the case of detention caused by the filing of a last-minute application and the relevant application has already been rejected.
The applicant appealed to the Supreme Court of Cassation arguing that Article 6(2-bis) of Legislative Decree No 142/2015, as amended by Legislative Decree No 37/2025 is unconstitutional, due to a potential conflict with Articles 3, 11, 13, 24, 111, and 117 of the Constitution (the latter in connection with Article 5 of the ECHR, Article 3 of the Universal Declaration of Human Rights, Article 9 of the International Covenant on Civil and Political Rights, and Article 6 of the EU Charter of Fundamental Rights).
On 4 September 2025, the Court of Cassation (first criminal section) decided that keeping a person in detention based on Article 6(2-bis) of Legislative Decree No 142/2015 (as amended by Legislative Decree No 37/2025) is illegal if detention is not validated, until a decision on such validation is issued and provided that another detention order is made within 48 hours for the same person. The Court of Cassation held that such a legal provision allows the limitation ex lege of an individual’s freedom simply because they are already present in a CPR, unlike someone who is free, and it legitimises ex post the restriction on personal freedom.
The court also considered necessary to submit to the Constitutional Court for review the practice based on Article 6(2-bis) of Legislative Decree No 142/2015 (as amended by Legislative Decree No 37/2025).