Articles 10 and 19 of the Immigration Act (legislative decree No. 286/1998) are silent as regards the judicial authority competent for deciding on the appeals brought by foreigners against an order of refoulement (“decreto di respingimento”). It is clear, however, that the relating competence lies on the ordinary courts, and not on the administrative ones, because the former are competent, as a general rule, for the cases in which the protection of individual rights is involved. Ascertaining whether or not foreigners are in need of international protection is, thus, within the competence of the ordinary courts. Also the European Court of Human Rights noted, in its judgment on the Hirsi case, that difficulties, which may arise in managing immigration fluxes, cannot justify to make recourse to practices that are inconsistent with international obligations and, specifically, with Article 3 of the ECHR.
Judgment of the European Court of Human Rights of 23 February 2012, Hirsi Jamaa and Others v. Italy