Deportation of Foreign Nationals and the Criminal Judge's Nulla OSTA: The Court of Cassation, with Order No. 16531 of 2025, Clarifies the Limits of the Right to Defense

The relationship between the deportation of a foreign national from Italian territory and their status in criminal proceedings is a delicate issue, requiring a careful balance between the demands of justice and individual rights. Order No. 16531 of 2025, issued by the Court of Cassation on June 20, 2025, provides clear guidance on a specific point: the possibility for a foreign national to challenge a deportation order based on the lack of a nulla osta (authorization) from the criminal judge. This ruling is fundamental for understanding the protections provided by our legal system.

The Nulla OSTA: A Guarantee for Justice, Not for the Deportee

Legislative Decree No. 286 of 1998 (Consolidated Law on Immigration) stipulates in Article 13, paragraph 3, that deportation cannot be carried out if the foreign national is involved in criminal proceedings, unless there is a nulla osta from the judicial authority. This provision is crucial to ensure that removal does not compromise ongoing investigations or trials. Concurrently, Article 17 of the same decree ensures that a deported foreign national can obtain authorization for temporary return to Italy to exercise their right to defense. It is precisely on the interpretation of these provisions that the Court of Cassation has shed light.

A foreign national appealing a deportation order, against whom criminal proceedings are pending in Italy or who is a victim in such proceedings, cannot assert, as a ground for the invalidity of the measure, the lack of a nulla osta for deportation from the criminal judge, as required by Article 13, paragraph 3, of Legislative Decree No. 286 of 1998, because they have no protected interest in denouncing such an omission. This provision is intended to safeguard the needs of criminal jurisdiction, while the deported individual's interest in exercising their right to defense and participating in criminal proceedings is protected by the authorization to return contemplated by Article 17 of the same legislative decree.

This clear ruling from the Court of Cassation precisely defines the role of the nulla osta. The Court highlights that Article 13, paragraph 3, of Legislative Decree No. 286 of 1998 does not directly protect the foreign national against deportation but safeguards the 'needs of criminal jurisdiction,' meaning the State's interest in the proper conduct of proceedings. The foreign national, even if involved in proceedings, does not have a 'protected interest' to challenge the deportation solely due to the absence of this nulla osta. Their right to defense and participation in proceedings are instead guaranteed by Article 17, which provides for authorization to return. The Court thus distinguishes between the public interest in justice and the private interest of the foreign national, clarifying how the latter is protected by a different mechanism.

The Court's Balance and Practical Consequences

Order No. 16531 of 2025, by rejecting the appeal filed by H. against P., consolidates a jurisprudential trend aimed at preventing the instrumentalization of legal provisions. The Court of Cassation does not deny the foreign national's right to defense but defines its tools and limits.

• The criminal judge's nulla osta (Art. 13, para. 3) is a protection for the jurisdiction, not for the foreign national.
• The foreign national's right to defense in criminal proceedings is guaranteed by the authorization for temporary return (Art. 17).
• It is not possible to challenge deportation by invoking the lack of a nulla osta as a procedural defect in one's own favor.

This interpretation ensures that deportation measures can be effective without sacrificing the fundamental principles of a fair trial, but by directing protection towards the correct legal instruments.

Conclusions: A More Defined Regulatory Framework

The Court of Cassation's decision provides a clearer framework for challenging deportation orders for foreign nationals involved in criminal proceedings. It is crucial to understand that the failure to obtain a nulla osta does not constitute a defect that the foreign national can invoke to annul the deportation. The focus shifts to the possibility of obtaining authorization to return to ensure the effective exercise of the right to defense. For those in these circumstances, a careful analysis of the provisions and the assistance of expert professionals are essential to best protect their position.