Expulsion of Foreigners and Duration of the Re-Entry Ban: Comment on Judgment No. 17946 of 2023
The judgment No. 17946 of January 31, 2023, issued by the Court of Cassation, highlights fundamental aspects regarding the expulsion of foreigners as a substitute for imprisonment, pursuant to Article 16 of Legislative Decree No. 286 of 1998. In particular, the Court partially annulled a decision of the Court of Appeal of Bologna, emphasizing the necessity to specify the duration of the re-entry ban in the case of expulsion.
The Regulatory Context
Legislative Decree No. 286 of 1998, known as the Consolidated Immigration Act, governs the methods of expulsion of foreigners. Article 16, paragraph 1, provides that a judge may order expulsion as a sanction substituting imprisonment. However, the Court clarified that it is mandatory for the judge to also establish the duration of the re-entry ban, as it is a discretionary measure that must be well-defined.
The Consequences of the Judgment
Expulsion of the foreigner as a substitute for imprisonment under Article 16 of Legislative Decree No. 286 of 1998 - Duration - Omission of indication by the cognizant judge - Consequences - Illegitimacy - Existence. In the matter of expulsion of the foreigner as a substitute for imprisonment under Article 16, paragraph 1, of Legislative Decree No. 286 of July 25, 1998, the cognizant judge is required to establish the duration of the re-entry ban, as it is a sanction substituting detention exercised under discretionary power, such that the omission of the indication of the duration of expulsion results in the annulment of the judgment regarding the substitute sanction.
This maxim highlights the importance of a correct application of discretionary power by the judge. The failure to indicate the term of expulsion not only compromises the legitimacy of the sanction but also creates legal uncertainties for the individual involved. In fact, without a specific duration, the foreigner may find themselves in a situation of precariousness and vulnerability, not knowing when they might eventually return to the country.
Implications for Jurisprudence and the Administration of Justice
The judgment represents an important call to attention for judges and legal operators. It is essential that decisions related to expulsion are clear and well-motivated, in order to ensure respect for the rights of foreigners 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 foreigners
- Possible appeals in case of omissions
In conclusion, judgment No. 17946 of 2023 of the Court of Cassation represents a significant step towards a fairer justice system that respects human rights. The necessity to indicate the duration of the re-entry ban should not be seen merely as a formal requirement, but as an essential element to ensure the respect of the dignity of the individuals involved.
