On 20 October 2025, the Prefect of Frosinone issued an expulsion order against the applicant, a national of Togo. On the same date, the Chief of Police of Frosinone ordered his detention pursuant to Article 14(1) of Legislative Decree No. 286/1998, and he was transferred to the Repatriation Detention Centre (CPR) of Potenza–Palazzo San Gervasio. The Justice of the Peace of Melfi validated the detention measure on 22 October 2025. At a later stage, the applicant was transferred to Albania and detained at the CPR in Gjader. There, on 8 December 2025 he expressed his intention to apply for international protection. Therefore, on the same date, the Chief of Police of Rome ordered his detention at the Gjader CPR pursuant to Article 6 of Legislative Decree No. 142. The following day, the Rome Police Headquarters submitted to the Court of Appeal of Rome a request for validation of the detention order.

The Court of Appeal of Rome referred to recent case law of the Court of Cassation, in particular to the preliminary reference made to the CJEU in Ministero dell’Interno and Questura di Roma v S.H. ,A.H. (R.G. 23105/25, 20 June 2025). The Court of Appeal held that the lawfulness of the administrative detention measure adopted pursuant to Article 6(3) of Legislative Decree No. 142/2015 depended directly on the resolution of the question referred to the CJEU. However, it stated that it could not stay the proceedings, both because such a possibility is not expressly provided for under national law and, more importantly, because measures affecting personal liberty must be validated by the judicial authority within the mandatory time limit of 48 hours from transmission of the case file, without any possibility of extension. In light of the insurmountable doubt as to the compatibility between the relevant national legislation and binding EU law, the court rejected the request for validation of the detention measure.

Moreover, the court found that, in the present case, detention for the purpose of expulsion violated Article 14 of the Consolidated Immigration Act (Testo Unico Immigrazione, TUI), as the applicant had already been detained from 25 October 2023 to 19 April 2024 at the CPR of Palazzo San Gervasio and had been released by the Justice of the Peace due to the administration’s failure to carry out the removal. The court held that the new detention order, issued on 20 October 2025, constituted a manifestly disproportionate measure in relation to the objective of expulsion, since in the intervening period the administration had taken no steps to render removal feasible.

The court therefore concluded that, independently of the issue concerning the compatibility with EU law of detention at the Gjader CPR of an applicant for international protection, the present procedure was vitiated by a manifest and serious disproportionality between the measure adopted and the objective pursued.

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