Legal Database

Full alternativity of the "vehicular" languages with respect to the language known by the person subject to expulsion, according to which translation into a vehicular language is considered sufficient and legitimate as it meets the legal requirements.

According to the established case law of this Court, the failure to translate the expulsion order into the language of the recipient results in a violation of Article 13, paragraph 7, of Legislative Decree No. 286/1998, leading to an irreparable nullity of the order, even in the presence of a certificate stating the unavailability of a translator, unless the administration demonstrates, and the judge finds plausible, the reasons for the unavailability of a text in a language understood by the foreign national due to its rarity or the inadequacy of such a text for communicating the decision actually made (see Cass. No. 13323 of 2018; Cass. No. 3931 of 2018; Cass. No. 18268 of 2016; Cass. No. 22607 of 2015).

The obligation to indicate the methods of appeal and the translation of the decision into a language understood by the interested party or into one of the official languages is also derived from Article 13, paragraph 7, of the Consolidated Immigration Act, which applies not only to the expulsion order and the detention measure, but also to any other act concerning entry, residence, and expulsion, and expressly provides for such guarantees.

According to Article 6, paragraph 5, cited above, it must be considered that, in the presence of an application for international protection, the jurisdiction to examine the validation of the asylum seeker's detention lies with the specialized section established at the Tribunal, and not with the Justice of the Peace (see Cass. No. 18189 of 2020). In this case, indeed, the submission of the protection application results in a change in the basis for detention, which continues, for the maximum period allowed by law, in order to allow "the completion of the procedure for examining the protection application."

When a foreign national, already present in a CPR awaiting the execution of an expulsion order, is again detained there under Article 6, paragraph 3, of Legislative Decree No. 142/2015, for having submitted an application for international protection, during the validation procedure under Article 6, paragraph 5, of the same decree, the judge is required to verify the manifest illegality of the rejection decision, which constitutes the basis for the regularity of the entire procedure. In the absence of the first executive detention for rejection, validated by the justice of the peace, the detention of the asylum seeker can only be ordered if the conditions set forth in Article 6, paragraph 2, of the same decree are met.

Under Article 6, paragraph 3, of Legislative Decree 142/2015, when a migrant, already detained in a CPR for repatriation (pursuant to Article 14 of Legislative Decree 286/1998), submits an application for international protection and there is a reasonable belief that the application is merely instrumental and dilatory (intended to delay or prevent expulsion or deferred rejection), the migrant remains detained in the center, following a new decree issued by the police chief, and is subject to a second validation hearing within the jurisdiction of the specialized section of the ordinary tribunal.

Where a foreign national, already present in a CPR (Centre for Repatriation), awaiting the execution of an expulsion order and detained under Article 14 of Legislative Decree No. 286/1998, is again detained there under Article 6, paragraph 3, of Legislative Decree No. 142/2015 for having submitted an application for international protection, the forty-eight-hour deadline for the validation of the second detention ordered by the police chief does not begin from the applicant's expression of intent to request international protection, but from the adoption of the aforementioned second restrictive measure.

In the presence of an application for international protection, the Court of Cassation specifies that the review of the detention validation of the applicant falls under the jurisdiction of the specialized section established within the Tribunal, and not the Justice of the Peace, pursuant to Article 1 of Decree-Law No. 13/2017, converted into Law No. 46/2017.

It is true that "In matters of immigration, jurisdiction for validating the extension of detention belongs to the tribunal, sitting as a single judge, and not to the justice of the peace, when the foreign national has submitted an application for international protection and is already subject to detention based on an administrative authority's decision, adopted and validated before the filing of the said application" (Cass. No. 13536/2014). Therefore, in the case of the detention of an asylum seeker in a temporary detention center, the submission of an application for international protection by the foreign national, even if repeated, establishes the jurisdiction for validation with the specialized section of the Tribunal, and not the Justice of the Peace, pursuant to Article 6, paragraph 5, of Legislative Decree No. 142 of 2015, as it results in a change in the basis for detention, which continues for the maximum period allowed by law to enable the examination of the protection application (Cass. No. 11859/2022).

In the context of a constitutionally oriented interpretation of Article 18 cited above, it must be considered that, although the general jurisdiction of the justice of the peace has been reaffirmed, the delegated legislator intended to preserve, in a special and exceptional manner, the vis attractiva of the tribunal's jurisdiction, thereby centralizing before the same judicial body the examination of measures affecting the right to family unity (see Cass., Section VI, 13/07/2018, No. 18622; Cass., Section I, 18/06/2010, No. 14849).