Order of the Court of Cassation, VI Civil Section, No. 12609 of 18 February-14 April 2014

The case concerned the administrative detention of an Ukrainian national against whom the Italian competent authorities had issued an order of expulsion. The question examined by the Court of Cassation was that Article 14 of legislative decree No. 286 of 1998 (Immigration Act) does not provide that the judge competent for validating the temporary detention of a foreigner also has the authority to declare, if the case occurs, that the expulsion order issued against him/her is patently irregular; this seemed in breach of the ECHR, as regards the right to liberty and security and the right to an effective remedy (Articles 5.1.f and 13). Making recourse to the principles applicable under such circumstances, as laid down by the Constitutional Court, the Court of Cassation has therefore interpreted Article 14 in the meaning that if a judge has been asked of validating the administrative detention, also has the power to declare, for the purposes of its own decision, the illegitimacy of the expulsion order on which the detention is grounded.