Expulsion of Foreign Nationals and Duration of Re-entry Ban: Commentary on Judgment No. 17946 of 2023

Judgment No. 17946 of January 31, 2023, issued by the Court of Cassation, highlights fundamental aspects concerning the expulsion of foreign nationals as a substitute for custodial sentences, pursuant to Article 16 of Legislative Decree No. 286 of 1998. In particular, the Court partially annulled a decision by the Court of Appeal of Bologna, emphasizing the need to specify the duration of the re-entry ban in cases of expulsion.

The Regulatory Framework

Legislative Decree No. 286 of 1998, known as the Consolidated Law on Immigration, governs the procedures for the expulsion of foreign nationals. Article 16, paragraph 1, provides that a judge may order expulsion as a substitute sanction for a custodial sentence. However, the Court has clarified that it is mandatory for the judge to also establish the duration of the re-entry ban, as this is a discretionary measure that must be clearly defined.

Consequences of the Judgment

Expulsion of a foreign national as a substitute for a custodial sentence under Article 16 of Legislative Decree No. 286 of 1998 - Duration - Omission by the adjudicating judge - Consequences - Illegitimacy - Existence. In the matter of expulsion of a foreign national as a substitute for a custodial sentence under Article 16, paragraph 1, of Legislative Decree No. 286 of July 25, 1998, the adjudicating judge is required to establish the duration of the re-entry ban, as it is a substitute sanction for detention ordered in the exercise of discretionary power. Therefore, the omission to specify the duration of the expulsion entails the annulment of the judgment concerning the substitute sanction.

This legal maxim highlights the importance of the judge's correct exercise of discretionary power. The failure to indicate the duration of the expulsion not only compromises the legitimacy of the sanction but also creates legal uncertainty for the individual involved. Indeed, without a specific duration, the foreign national may find themselves in a precarious and vulnerable situation, unaware of when they might eventually be able to return to the country.

Implications for Jurisprudence and the Administration of Justice

The judgment represents an important call to attention for judges and legal practitioners. It is crucial that decisions relating to expulsion are clear and well-reasoned, in order to ensure respect for the rights of foreign nationals and the correct application of the law. The implications of this judgment extend beyond the specific case, further influencing jurisprudence in immigration matters.

• Clarity and precision in expulsion judgments
• Respect for the rights of foreign nationals
• Potential appeals in cases of omissions

In conclusion, judgment No. 17946 of 2023 by the Court of Cassation represents a significant step towards a more equitable justice system that respects human rights. The requirement to indicate the duration of the re-entry ban should not be viewed merely as a formal compliance, but as an essential element for ensuring respect for the dignity of the individuals involved.