Judgment No. 34556 of 2023: The Legitimacy of the Mandatory Departure Order and Necessary Prescriptions

The recent judgment No. 34556 of April 18, 2023, offers important insights into public safety prevention measures. In particular, the Court of Cassation has clarified that the absence of specific prescriptions renders the mandatory departure order illegitimate. This aspect is crucial for understanding the rights of the individuals involved and the responsibilities of public security authorities.

Conditions for the Legitimacy of the Mandatory Departure Order

According to the judgment, the prescriptions to return to the place of residence and not to return to the municipality subject to the removal order are essential and inseparable conditions. This means that, to issue a mandatory departure order, both prescriptions must be present. Their absence leads to the illegitimacy of the measure, as highlighted by the Court.

• Return to the place of residence: fundamental to ensure compliance with established rules.
• Prohibition of return to the municipality: necessary to protect public safety and prevent risky situations.

Legal Implications and Consequences of the Judgment

Absence of the order to return to the place of residence and the prohibition of return - Illegitimacy of the administrative measure - Existence - Consequences. In terms of preventive measures, the prescriptions to return to the place of residence and not to return to the municipality subject to the removal order constitute essential and inseparable conditions for the legitimate issuance of the mandatory departure order, so that the absence of one of the two prescriptions determines the illegitimacy of the measure, which can be ascertained by the criminal judge in order to disapply it due to non-conformity with the typical factual situation, with the consequent non-existence of the crime referred to in art. 76, paragraph 3, legislative decree of September 6, 2011, no. 159.

The Court of Cassation has affirmed that the illegitimacy of the measure can be ascertained by the criminal judge, who is obliged to disapply it in case of non-conformity with the typical factual situation. This position further consolidates the protection of individual rights and emphasizes the importance of a rigorous application of the rules.

Conclusions

Judgment No. 34556 of 2023 represents a significant step in Italian jurisprudence concerning preventive measures. It reiterates the importance of the necessary conditions for issuing a mandatory departure order and the consequent illegitimacy of the measure in the absence of such requirements. This principle not only protects individual rights but also ensures a fairer and more just application of public security measures.