JUDGMENT NO. 163

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Judges: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 16, paragraph 4, of Legislative Decree No. 286 of 25 July 1998 (Consolidated Act on provisions concerning the regulation of immigration and rules on the status of aliens), initiated by the Ordinary Court of Florence, First Criminal Section, acting as the enforcement judge, in the criminal proceedings against M. R. with order of 10 November 2023, registered as No. 156 in the register of orders 2023 and published in the Official Gazette of the Republic No. 50, first special series, of the year 2023, the hearing of which was scheduled for the meeting in the deliberation chamber on 2 July 2024.

Having examined the act of intervention of the President of the Council of Ministers;

Having heard in the deliberation chamber of 23 September 2024, Judge Rapporteur Francesco Viganò;

Deliberated in the deliberation chamber of 23 September 2024.

Facts of the Case

1. – By order of 10 November 2023, the Ordinary Court of Florence, First Criminal Section, acting as the enforcement judge, raised questions of constitutional legitimacy of Article 16, paragraph 4, of Legislative Decree No. 286 of 25 July 1998 (Consolidated Act on provisions concerning the regulation of immigration and rules on the status of aliens), "interpret[ed] to mean that the court competent to order the revocation of the alternative sanction of expulsion is the enforcement judge, rather than the judge who ascertains the offense” of illegal re-entry into the territory of the State referred to in Article 13, paragraph 13-bis, of the same legislative decree, even when this offense has not yet been ascertained by a final judgment, for violation of Articles 3, 24, second paragraph, and 27, second paragraph, of the Constitution.

1.1. – The referring court states that it must rule, as enforcement judge, on a request of 25 November 2021, submitted by the public prosecutor, for the revocation of the alternative sanction of expulsion ordered against M. R.

The latter had been sentenced by judgment of 25 July 2019, which became final on 9 December 2019, to a penalty of two years’ imprisonment and a fine for the offenses of aggravated theft and aggravated burglary. The custodial sentence was simultaneously replaced, pursuant to Article 16, paragraph 1, of the Immigration Consolidated Act, with the expulsion of the convicted person from the territory of the State, carried out on 1 August 2019 by escort to the border. On 24 November 2021, a little more than two years after the expulsion, M. R. was, however, caught by law enforcement in the Province of Trieste with a document bearing different details. Identified by fingerprints, he was then reported for the offense of illegal re-entry into the territory of the State.

On 25 November 2021, the public prosecutor at the Court of Florence had therefore requested the same court, acting as enforcement judge, to revoke the alternative sanction of expulsion ordered by the judgment of conviction of 25 July 2019.

By order issued on the same date, the Court of Florence, however, transmitted the documents to the Ordinary Court of Trieste, in whose district M. R. had been located, based on the principle, already affirmed by the Court of Cassation, according to which jurisdiction in these cases lies with the judge of the merits before whom the offense provided for in Article 13, paragraph 13-bis, of the Immigration Consolidated Act must be ascertained (Court of Cassation, First Criminal Section, judgment of 21 December 2004-21 February 2005, No. 6451 is cited).

On 8 June 2022, the Court of Trieste, acting as enforcement judge, had raised a negative conflict of jurisdiction, considering that the Court of Florence, instead, was the court competent to rule on the request for revocation of the alternative sanction.

By judgment of 2 December 2022-18 May 2023, No. 21351, the First Criminal Section of the Court of Cassation declared the jurisdiction of the Court of Florence as enforcement judge, considering that the revocation of the alternative sanction is a matter relating to the title and its execution, and observing that the "preferable jurisprudence” had already expressed itself in these terms (and, in particular, Court of Cassation, First Section, judgment of 1 July-23 August 2004, No. 34703).

Resuming the proceedings, the referring court doubts, however, the constitutional legitimacy of the challenged provision as interpreted by the Court of Cassation itself in settling the conflict of jurisdiction.

1.2. – Regarding the relevance of the questions raised, the referring judge emphasizes first of all its duty to comply with the ruling of the Court of Cassation in the judgment that decided the negative conflict of jurisdiction, highlighting how, pursuant to Article 25 of the Code of Criminal Procedure, the jurisdiction thus attributed cannot, as a rule, be questioned again.

However, the referring court recalls that the consistent case law of this Court holds that the judge of the referral is entitled to raise questions of constitutional legitimacy concerning the interpretation of the rule, as resulting from the principle of law enunciated by the Court of Cassation in the judgment of annulment with referral (judgment No. 293 of 2013 is cited). Similar conclusions should be reached also in the case of a decision on a conflict of jurisdiction, since "[e]ven in this case, the rule whose legitimacy is in doubt must still be applied within the referral proceedings (the assessment of its own jurisdiction is preliminary to the examination of the merits)", and since "[e]ven in this case, the judge identified as competent by the Court of Cassation has in the question of constitutional legitimacy the only possibility of contesting the rule of law (in this case regarding jurisdiction), to which it would otherwise have to conform".

For similar reasons, the circumstance as to whether the rule of law affirmed by the Court of Cassation in deciding the conflict of jurisdiction rises to the rank of living law would not be decisive. In any case, the now consolidated case law would identify the enforcement judge as the authority competent to order the revocation of the replacement of the custodial sentence with expulsion (Court of Cassation, First Criminal Section, judgments No. 21351 of 2023; 11 March-7 April 2021, No. 13051; 29 March-17 May 2006, No. 16976; 22-30 September 2004, No. 38653; No. 34703 of 2004 are cited), while only one precedent, now old, would affirm the jurisdiction of the "Judge of the merits before whom the existence or non-existence of the offense is debated" of illegal re-entry, without, however, excluding a possible concurrent jurisdiction of the enforcement judge (Cass., No. 6451 of 2005).

Still on the issue of relevance, the fact that the judgment which ordered the replacement of the custodial sentence in the specific case did not indicate the duration of the prohibition of re-entry into the national territory would not be relevant. Although the recent case law of legitimacy considers the judgment that has not expressly provided in this regard to be annullable (Court of Cassation, Second Criminal Section, 31 January-28 April 2023, No. 17946; First Criminal Section, 25 January-1 February 2012, No. 4317 are cited), in the concrete case the judgment - not challenged at the time - would now be final, so that the duration of the prohibition could only be identified as the minimum duration of five years, while the illegal re-entry in question would have occurred a little more than two years after the expulsion.

In any case, the questions of constitutional legitimacy proposed would concern exclusively the aspect of jurisdiction, "whose evaluation is preliminary to the verification of the violation of the prohibition".

1.3. – As for the non-manifest lack of merit of the questions, the referring court observes that "the ascertainment of re-entry and its unlawfulness is not necessarily simple and could even be controversial”. The convicted person could, for example, have been identified through a video or a recognition; or the unlawfulness of the re-entry could be excluded by the acquisition, in the meantime, of the citizenship of a State of the European Union.

The offense should, therefore, be ascertained by a final judgment of conviction, on the basis of which alone could the revocation of the alternative sanction be ordered. Otherwise, the revocation would constitute a violation of the presumption of innocence.

If, on the other hand, it were considered that the enforcement judge can autonomously ascertain the fact of illegal re-entry, "such a solution” would be "unreasonable and, in some respects, not adequately respectful of the right of defense” referred to in Article 24, second paragraph, of the Constitution.

First of all, it would seem pointless for two separate proceedings to be held concerning the ascertainment of the same fact, also with the risk of conflicting outcomes. The unreasonableness of the provision would be all the more evident if one considers that the offense of illegal re-entry provides for mandatory arrest, even outside the cases of flagrante delicto, and recourse to the summary trial, which makes it possible to quickly reach a definitive ascertainment.

Furthermore, the enforcement proceedings would be "characterized by less orality", and could also take place in the absence of the person concerned - a situation that is anything but exceptional in the context under examination. The order of the enforcement judge - unlike the judgment of the cognizing judge - could not then be re-evaluated on the merits in appeal, being subject only to review for legitimacy.

Finally, in general, the legal system would require that the offense underlying unfavorable measures by the enforcement judge for the person concerned be the subject of a prior definitive ascertainment. This would occur, in particular:

– in the revocation of the conditional suspension of the sentence pursuant to Articles 168, first and third paragraphs, of the Criminal Code and 674 of the Code of Criminal Procedure;

– in the case, regulated by Article 167 of the Criminal Code, in which a new offense constitutes a cause preventing the extinction of the offense for which the conditional suspension of the sentence has been granted (Court of Cassation, Fifth Criminal Section, 22 November 2019-9 April 2020, No. 11759 and order No. 210 of 2020 of this Court are cited);

– in the parallel cases, governed respectively by Article 445, paragraph 2, of the Code of Criminal Procedure and by Article 460, paragraph 5, of the Code of Criminal Procedure, in which the commission of an offense within five years prevents the extinction of the offense for which a judgment on plea bargaining was issued (Court of Cassation, First Criminal Section, 27 May-22 July 2021, No. 28616 is cited) or of the offense for which a criminal decree of conviction was issued (Court of Cassation, First Criminal Section, 28 March-23 April 2019, No. 17411 is cited);

– in the case of revocation of the pardon following a subsequent conviction for a non-culpable offense pursuant to Article 1, paragraph 3, of Law No. 241 of 31 July 2006 (Granting of pardon) (Court of Cassation, First Criminal Section, 19 May-3 June 2010, No. 20907 is cited);

– in the case, governed by the old text of Article 72 of Law No. 689 of 24 November 1981 (Amendments to the penal system), of revocation by the surveillance magistrate of the alternative sanction following a criminal conviction (Court of Cassation, First Criminal Section, 26 November 2015-8 January 2016, No. 513 is cited).

1.4. – As for the petitum, the referring court highlights that it does not intend "to invoke a manipulative decision that - with regard to the revocation of the alternative sanction - excludes the competence of the enforcement judge altogether, but rather a decision that excludes said competence until the eventual conviction for the offense" of illegal re-entry becomes final, in compliance with the principle of the presumption of innocence referred to in Article 27, second paragraph, of the Constitution; so that the enforcement judge can intervene "if – due to oversight or for any other reason – the judge of the merits process […] in issuing a judgment of conviction, does not order the revocation of the alternative sanction”.

1.5. – Finally, the referring court excludes the possibility of a conforming interpretation of the rule underlying the decision of the Court of Cassation which resolved the conflict of jurisdiction in the case under examination and, in particular, the possibility of inferring from it the obligation for the enforcement judge - identified as the competent judge - to await the passing into res judicata of the eventual judgment of conviction for the offense of illegal re-entry before ruling on the request for revocation of the alternative sanction. Such a solution would be - according to the referring court - illogical, also because the revocation could well be ordered by the same cognizing judge called to rule on the offense of illegal re-entry.

The silence of the Court of Cassation on this point should instead be interpreted as indicative of the need for the enforcement judge to decide immediately on the revocation, without awaiting the outcome of the judgment on the offense of illegal re-entry; this solution, however, the referring court considers to be in conflict with the Constitution, for the reasons recalled so far.

2. – The President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings, requesting that the questions be declared manifestly inadmissible or, in any case, manifestly unfounded.

2.1. – The State Attorney General's Office objects, first of all, to the lack of relevance of the questions.

According to the consistent case law of this Court, in fact, after the resolution of a conflict of jurisdiction by the Court of Cassation, the designated judge cannot question the jurisdiction attributed to him, so that any decision by this Court on the constitutional legitimacy of the principle of law affirmed by the Court of Cassation in the decision on the conflict could have no influence in the concrete case (judgments of this Court No. 95 of 2020, No. 1 of 2015 and No. 294 of 1995 are cited).

2.2. – Secondly, the petitum of the order would be ambiguous, since the censures would seem to refer "not directly to the aspect of jurisdiction to rule on the revocation of the alternative sanction", but "to the deemed limits of the ascertainment of the offense".

2.3. – Finally, the referring judge would not have tested the possibility of an interpretation in conformity with the Constitution of the challenged rule, not having indicated the reasons why the interpretation "to the effect that the enforcement judge, in order to avoid potential dissimilar judgments on the same historical fact (the illegal re-entry of the foreigner into Italy), should wait for the outcome of the cognisance proceedings on the commission of the offense pursuant to Article 13, paragraph 13-bis, before ruling on the request for revocation of the expulsion" should be excluded.

2.4. – On the merits, the questions would in any case be manifestly unfounded.

With regard to the alleged violations of Articles 3 and 27, second paragraph, of the Constitution, the alleged unreasonableness of the provision could easily be overcome if the enforcement judge awaits the decision of the cognizing judge.

In relation, finally, to Article 24, second paragraph, of the Constitution, it would not be possible to equate "two heterogeneous cases, such as the cognisance proceedings and the enforcement proceedings"; and in any case, even the latter proceedings would be a suitable place for the ascertainment of facts, "even in the absence of the defendant and based on the decision already adopted by the judge of the merits".

In conclusion, in the opinion of the State Attorney General's Office, all the doubts of constitutionality could well be overcome by a constitutionally conforming interpretation of the provision, according to which the enforcement judge must await "the passing into res judicata of the judgment of conviction issued by the cognizing judge", before ordering the revocation of the alternative sanction.

Findings of Law

1. – The Court of Florence has raised questions of constitutional legitimacy of Article 16, paragraph 4, of the Immigration Consolidated Act, "interpret[ed] to mean that the court competent to order the revocation of the alternative sanction of expulsion is the enforcement judge, rather than the judge who ascertains the offense" of illegal re-entry into the territory of the State referred to in Article 13, paragraph 13-bis, of the same Consolidated Act, even when this offense has not yet been ascertained by a final judgment, for violation of Articles 3, 24, second paragraph, and 27, second paragraph, of the Constitution.

The referring court must rule, in its capacity as enforcement judge, on the request for revocation of the alternative sanction of expulsion, previously ordered, pursuant to Article 16, paragraph 1, of the Immigration Consolidated Act, against a foreigner convicted of offenses against property, and apprehended in the national territory a little more than two years after the execution of the expulsion.

The challenged provision provides that "[i]f the expelled foreigner […] illegally re-enters the territory of the State before the deadline provided for in Article 13, paragraph 14, the alternative sanction shall be revoked by the competent judge”.

Since the prohibition of re-entry arising from the alternative sanction had - according to the not implausible assessment of the referring court, not disputed by the State Attorney General's Office - a duration of five years, the alternative sanction previously applied in lieu of the custodial sentence should now be revoked.

The referring court doubts, however, the constitutional legitimacy of the interpretation of this provision provided by the Court of Cassation when deciding on the conflict of jurisdiction raised by the Court of Trieste, in whose district the presence of the person concerned in the national territory was ascertained, and to which the Court of Florence had in turn transmitted the documents so that it could rule on the request for revocation of the alternative sanction in question.

According to the referring judge, the Court of Cassation would have decided the conflict by deriving a dual rule from the provision of Article 16, paragraph 4, of the Immigration Consolidated Act:

a) the "competent judge" referred to in the challenged Article 16, paragraph 4, of the Immigration Consolidated Act is the enforcement judge, and not the judge to whom jurisdiction to hear the offense of illegal re-entry is attributed;

b) the enforcement judge must rule on the request for revocation of the alternative sanction without waiting for the definitive ascertainment of the offense of illegal re-entry, and may grant it regardless of such ascertainment.

According to the referring court, this interpretative solution would be intrinsically unreasonable, as well as detrimental to the right of defense and the presumption of innocence.

2. – With regard to the admissibility of the questions raised, the following must be observed.

2.1. – The second objection raised by the State Attorney General's Office, which complains about the obscurity of the petitum and the alleged referability of the censures to the "limits of the ascertainment of the offense" rather than to the determination of the judge competent to rule on the revocation, is entirely unfounded.

In fact - and without prejudice to the fact that the so-called petitum is not an essential element in an incidental question of constitutional legitimacy, it being sufficient that the content and direction of the censures clearly emerge from the overall tenor of the reasoning (ex multis, recently, judgments No. 111 of 2024, point 4.3.2. of the Findings of Law; No. 105 of 2024, point 2.9. of the Findings of Law; No. 90 of 2024, point 3.1. of the Findings of Law; No. 54 of 2024, point 3.3. of the Findings of Law) -, in the case under examination the petitum formulated by the referring court is clear and devoid of any profile of ambiguity, consisting in the challenge of the constitutional legitimacy of the rule derived by the Court of Cassation from Article 16, paragraph 4, of the Immigration Consolidated Act, insofar as it attributes to the enforcement judge the jurisdiction to decide on the request for revocation of the alternative sanction even before the definitive ascertainment of the offense of illegal re-entry charged to the foreigner by the cognizing judge.

2.2. – The third objection of inadmissibility is also unfounded, according to which the referring court would not have proceeded with the necessary attempt at conforming interpretation, in particular in the sense of considering that the enforcement judge, before ruling on the request for revocation referred to in Article 16, paragraph 4, of the Immigration Consolidated Act, must in any case await the definitive ruling of the cognizing judge on the existence of the offense of illegal re-entry.

In fact, the referring court gives detailed reasons for why, in its opinion, the principle of law underlying the judgment of the Court of Cassation on the conflict of jurisdiction could not be understood in the sense indicated above. The validity or otherwise of this conclusion is, in accordance with the consistent case law of this Court, a matter pertaining to the merits, rather than to the admissibility of the questions (recently, ex multis, judgments No. 105 of 2024, point 2.5. of the Findings of Law; No. 6 of 2024, point 5 of the Findings of Law; No. 202 of 2023, point 2 of the Findings of Law; No. 139 of 2022, point 3 of the Findings of Law).

2.3. – A more detailed assessment is, instead, required on the first objection of inadmissibility raised by the State Attorney General's Office, according to which the referring court can no longer question the decision on the jurisdiction of the Court of Cassation, with consequent irrelevance of the questions concerning, precisely, the rules on jurisdiction.

2.3.1. – In fact, the State Attorney General's Office is not wrong when it observes that the case law of this Court has so far considered inadmissible, for lack of relevance, the questions of constitutional legitimacy concerning the determination of the jurisdiction of the judge, where raised by the judge declared competent by the Court of Cassation in settling a conflict of jurisdiction. The relevant determination is, in this case, considered covered by res judicata: so that, it is argued, the judge designated as competent by the Court of Cassation could never depart from it, given the preclusive effect explained by Article 25 of the Code of Criminal Procedure, not allowing the question of constitutional legitimacy raised by this judge to be resolved into a request to operate a sort of "further review" of the interpretations and therefore of the decisions of the Court of Cassation. No consequence could therefore arise in the proceedings a quo from the acceptance of any censures of constitutional illegitimacy of the rule on jurisdiction already applied - definitively - by the judge of legitimacy (in this sense, judgment No. 95 of 2020, point 4 of the Findings of Law; orders No. 306 of 2013 and No. 222 of 1997; judgments No. 294 of 1995, point 3.3. of the Findings of Law, and No. 25 of 1989, and therein for the indication of more remote precedents. For a recent application of these principles in a decision regarding the identification of the judge competent for the rescissory phase of the proceedings for the review of the criminal conviction, judgment No. 103 of 2023, point 2.3. of the Findings of Law).

2.3.2. – Multiple reasons, however, lead this Court to reconsider this orientation.

This Court considers the questions raised by the referral judge on the principle of law enunciated by the Court of Cassation when annulling a previous decision to be fully admissible (ex plurimis, judgments No. 123 of 2021, point 5 of the Findings of Law; No. 222 of 2018, point 3 of the Findings of Law; No. 293 of 2013, point 2 of the Findings of Law; No. 197 of 2010, point 3.1. of the Findings of Law; No. 58 of 1995, point 2 of the Findings of Law).

Such a situation is in many ways similar to the one now under examination.

First of all, even the referral judge is bound by the principle of law enunciated by the Court of Cassation, pursuant to Article 627, paragraph 3, of the Code of Criminal Procedure. Yet, the (unequivocal) admissibility of the questions concerning the principle of law enunciated when annulling with referral underlies the recognition that the constraint of the referral judge necessarily ceases when, at the request of the latter, this Court declares the constitutional illegitimacy of the rule that the Court of Cassation itself has formulated. The constraint of the referral judge to the principle of law enunciated by the Court of Cassation is therefore not incompatible with the relevance of the question of constitutional legitimacy, which is ensured precisely by the possibility of the judge to depart from this principle of law, where this Court has ascertained its conflict with the Constitution.

It is, in fact, objected that the referral judge is called to apply the principle of law enunciated by the Court of Cassation, while the judge identified in a conflict of jurisdiction should no longer apply the provisions on jurisdiction, already applied definitively by the judge of the conflict.

But the objection is not insurmountable.

If it is true, in fact, that in the case of annulment with referral the Court of Cassation merely "interprets" the law, enunciating a binding rule for the referral judge, which will then have to concretely "apply" it in the specific case, it is no less true that even the judge indicated as competent by the Court of Cassation is called to carry out the proceedings on the assumption of its identification as a competent judge by the Court of Cassation. The same establishment and subsequent holding of the proceedings before a specific judicial authority, and not another, constitutes an integral moment of the "application" of the discipline of jurisdiction in the specific case. Until the proceedings are established and held, the rule on jurisdiction cannot be said to have been (fully) "applied" to the specific case.

It is not clear, then, why the judge indicated as competent by the Court of Cassation cannot - exactly like the referral judge - request this Court to verify the compatibility with the Constitution of the rule established by the Court of Cassation as the basis for its decision, and destined to constitute the premise for the carrying out of the subsequent proceedings. In the event that this doubt is considered founded by this Court, the referring judge must refrain from giving further application to a rule now judged constitutionally illegitimate: which ensures the relevance of the questions.

2.3.3. – On the other hand, precluding a judge from raising a question of constitutional legitimacy on the rule that is at the basis of its potestas iudicandi is, in practice, equivalent to sealing the existence - if not exactly of a "free zone" - of a "grey area" in the control of constitutional legitimacy of the law, the result of which is to bind the judge of the merits to the application of rules that may be contrary to the Constitution, even when the judge has not had the possibility - at an earlier stage of the proceedings - to raise this question.

Such a solution, on the one hand, appears to be in conflict with the duty, incumbent on every judge, pursuant to Article 23 of Law No. 87 of 11 March 1953 (Rules on the establishment and functioning of the Constitutional Court), to monitor compliance with the Constitution by the law, and to invest this Court with every doubt of constitutional legitimacy that it considers not manifestly unfounded, regarding the rules intended to be applied in a specific proceedings - starting with those that establish its jurisdiction. On the other hand, it is discordant with the need, constantly emphasized by this Court, to ensure that the review of constitutionality exercised by it is such as to "cover the legal system to the greatest possible extent" (judgment No. 387 of 1996; in accordance, judgment No. 1 of 2014, point 2 of the Findings of Law).

Recognizing, instead, the admissibility of the questions of constitutional legitimacy under examination does not at all mean admitting the possibility of a "further review", nor of an improper challenge of the decision of the Court of Cassation, which certainly has the last word in any dispute concerning the exact and uniform interpretation of the law, pursuant to Article 65, first paragraph, of Royal Decree No. 12 of 30 January 1941 (Judicial System). Rather, similar questions invite this Court to perform the task that is its own: that is, to verify that the law, as interpreted in the last instance by the Court of Cassation, does not conflict with the Constitution (thus, in relation to the possibility of the simple section of the Court of Cassation to raise a question of constitutional legitimacy on the principle of law enunciated by the combined sections, judgment No. 33 of 2021, point 3.2. of the Findings of Law; as well as, in accordance, judgments No. 13 of 2022, point 2 of the Findings of Law, and No. 111 of 2022, point 3 of the Findings of Law).

2.3.4. – The conclusion just reached also appears consistent with the recent orientation of the combined sections of the Court of Cassation itself, relating to the power of the judge, indicated as holder of the jurisdiction in the jurisdiction regulation proceedings, to formulate a preliminary question before the Court of Justice having as its object precisely the compatibility with Union law of the rule on jurisdiction already enunciated by the Court of Cassation, definitively from the point of view of national law (combined civil sections, judgment 4 April 2022, No. 10860, point 5.1.; in accordance, previously, first civil section, judgment 15 June 2015, No. 12317).

The combined civil sections have, in this regard, confirmed "the nature of res judicata that the decision on jurisdiction issued by the Combined Sections of the Court of Cassation on the appeal proposed pursuant to Article 41 of the Code of Civil Procedure assumes"; but, at the same time, they have reaffirmed - in line with the precedent represented by the aforementioned judgment No. 12317 of 2015 - that this does not preclude the "power of the national judge, who is not of last instance, to raise, even following a binding decision on jurisdiction, a preliminary question before the CJEU, so as to avoid that the internal conforming constraint thus generated leads to the adoption of a decision in conflict with EU law". This solution, with respect to which the combined sections themselves have excluded any conflict with "constitutional counter-limits", and indeed with any constitutional rule.

The "yielding of res judicata on jurisdiction with respect to EU law" - the combined civil sections have continued - has its root in the consideration that this res judicata is "the bearer of an ascertainment that is indeed definitive and suitable to be established [...], but which still has an exclusively procedural nature on the decision-making power of the judge before whom proceedings have been brought, and therefore a typical legitimizing, instrumental and prodromic function to the decision on the merits that must still be adopted by the designated judge".

These acceptable considerations - enunciated with regard to the decisions of the Court of Cassation issued in the jurisdiction regulation proceedings, but suitable to be transferred to the contiguous matter of the conflict of jurisdiction - apply a fortiori, in the opinion of this Court, when the judge considers the rule at the base of the decision by the Court of Cassation that identifies it as competent in contrast not with Union law, but with the Constitution itself, which is the supreme law in the Italian legal system.

2.3.5. – In conclusion, even the first objection of inadmissibility formulated by the State Attorney General's Office must be rejected.

3. – On the merits, the questions are not founded, in the terms specified below.

3.1. – As previously clarified, the referring court believes that the decision of the Court of Cassation that indicates it as the competent judge in the proceedings a quo implies the affirmation of a dual rule, according to which (a) the "competent judge" in the proceedings referred to in Article 16, paragraph 4, of the Immigration Consolidated Act is the enforcement judge, and (b) this judge is authorized to revoke the alternative sanction even in the absence of a definitive ascertainment of the offense of illegal re-entry.

According to its submission, this interpretative solution would be in conflict with the principle of reasonableness referred to in Article 3 of the Constitution, with the right of defense referred to in Article 24, second paragraph, of the Constitution, as well as with the presumption of innocence referred to in Article 27, second paragraph, of the Constitution.

3.2. – Now, on the one hand, Article 16, paragraph 4, of the Immigration Consolidated Act provides that the judge revokes the alternative sanction of expulsion if the foreigner, once expelled, illegally re-enters the territory of the State. On the other hand, the illegal re-entry of a foreigner who is the recipient of a judicial measure of expulsion