JUDGMENT NO. 187
YEAR 2025
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following
JUDGMENT
in the constitutional legitimacy proceedings concerning Article 13, paragraph 3-quater, of Legislative Decree of 25 July 1998, no. 286 (Consolidated Text of provisions concerning immigration and rules on the status of foreigners), initiated by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, in the criminal proceedings against L. G., with order of 24 March 2025, registered under no. 80 of the register of orders of 2025 and published in the Official Gazette of the Republic no. 20, special first series, of the year 2025.
Having seen the memorandum of intervention of the President of the Council of Ministers;
having heard, in the Council Chamber of 3 November 2025, the Rapporteur Judge Maria Alessandra Sandulli;
deliberated in the Council Chamber of 3 November 2025.
Facts of the Case
1.– With order of 24 March 2025, registered under no. 80 of the register of orders of 2025, the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, raised a question of constitutional legitimacy, with reference to Article 3 of the Constitution, of Article 13, paragraph 3-quater, of Legislative Decree of 25 July 1998, no. 286 (Consolidated Text of provisions concerning immigration and rules on the status of foreigners), according to which "In the cases provided for by paragraphs 3, 3-bis and 3-ter, the judge, having acquired proof of the expulsion having been carried out, if the order directing the trial has not yet been issued, shall issue a judgment of non-lieu to prosecute.”
In particular, the referring judge doubts the constitutional legitimacy of the aforesaid provision "insofar as it does not provide that, in cases of an order directing the trial pursuant to Article 429 of the Code of Criminal Procedure (c.p.p.), the judge may determine, even ex officio, that the expulsion of the foreign defendant was executed before the order directing the trial was issued and that all conditions for issuing a judgment of non-lieu to prosecute are met,” or, alternatively, "insofar as it does not provide that, in cases of an order directing the trial pursuant to Article 429 c.p.p. for crimes which by themselves would allow direct citation to trial, the judge may determine, even ex officio, that the expulsion of the foreign defendant was executed before the order directing the trial was issued and that all conditions for issuing a judgment of non-lieu to prosecute are met.”
2.– Specifically, the judge states that they are called to rule on the liability of a foreign citizen, accused of the crime of home burglary, provided for by Article 624-bis of the Criminal Code, following an order directing the trial issued by the Preliminary Hearing Judge pursuant to Article 429 of the Code of Criminal Procedure. The order explains that, following checks carried out before the opening of the trial, it emerged that the defendant, who was absent at the preliminary hearing held on 14 May 2024, had in fact been expelled from the national territory pursuant to an order of 15 November 2023, issued by the Prefect of Rome under Article 13 of the Consolidated Text on Immigration, and carried out on the following 8 January 2024, with the foreigner being escorted to the air border and subsequently boarded onto a flight to his country of origin.
The referring judge further reports that, "before proceeding with the expulsion, the Rome Police Headquarters – having noted in the interforce SDI database that a (different) proceeding was pending against the said person at the Rome Public Prosecutor’s Office – requested from the latter, by a note of 15.11.2023, the authorization provided for by Article 13, paragraph 3, of Legislative Decree 286/1998; conversely, it does not appear that the prosecuting Police Headquarters noted the pendency of the present proceeding […] nor consequently requested the foreseen authorization from the judicial authority in Florence.”
Therefore, the expulsion was carried out before the order directing the trial was issued, and consequently, the defendant's defense requested the issuance of a judgment of non-lieu to prosecute, pursuant to Article 13, paragraph 3-quater, of the Consolidated Text on Immigration, to which the public prosecutor objected.
3.– Regarding relevance, the referring judge observes that, should the question not be upheld, the defendant, despite having been expelled by a prefectural order executed before the preliminary hearing, would not be able to benefit from the special declaration of inadmissibility of the criminal action regarding the continuation of the trial against him because, according to Supreme Court jurisprudence, the judgment of non-lieu to prosecute following the expulsion of the foreigner from the State territory cannot be pronounced once the order directing the trial or an equivalent provision has been issued.
The referring judge also refers to Judgment no. 270 of 2019, with which this Court declared the unconstitutionality of the same Article 13, paragraph 3-quater, of the Consolidated Text on Immigration "insofar as it did not provide that, in cases of an order of direct citation to trial pursuant to Article 550 of the Code of Criminal Procedure, the judge [could] determine, even ex officio, that the expulsion of the foreign defendant [had] been executed before the order directing the trial was issued and that all conditions for issuing a judgment of non-lieu to prosecute [were] met.” Furthermore, in the event that authorization was not requested (as in the present case), the judge refers to the same judgment, where it is stated that "nevertheless, the judge may – in compliance with the principle of equality – verify that the conditions existed for the authorization to be granted, particularly with reference to the interest of the injured party.” The judge observes, however, that even this ruling would not allow them to issue a judgment of non-lieu to prosecute, because, in the present case, although only the crime provided for by Article 624-bis of the Criminal Code is contested, for which constant Supreme Court jurisprudence holds that direct citation to trial is appropriate, the Public Prosecutor exercised the criminal action by requesting committal for trial and the preliminary hearing was held, resulting in the adoption of the order directing the trial pursuant to Article 429 of the Code of Criminal Procedure.
4.– Regarding non-manifest groundlessness, the referring judge, ruling out the possibility of reaching a constitutionally oriented interpretation, given the literal wording of the provision and constant Supreme Court jurisprudence, finds a substantial analogy between the issue under examination and the one already addressed and decided by this Court with the aforementioned Judgment no. 270 of 2019 concerning proceedings initiated by direct citation. Both scenarios, in fact, share, in the judge’s opinion, the "decisive common element constituted by the execution of the expulsion before the issuance of the order directing the trial,” whether adopted directly by the public prosecutor pursuant to Article 550 of the Code of Criminal Procedure, or adopted by the Preliminary Hearing Judge pursuant to Article 429 of the Code of Criminal Procedure, depending on the type of crime contested. A differentiated treatment of the aforesaid scenarios regarding the ascertainability of the supervening inadmissibility condition ex Article 13, paragraph 3-quater, of the Consolidated Text on Immigration, linked exclusively to the different form of exercise of the criminal action, would thus not appear justifiable.
5.– The referring judge therefore requests that the textual impediment, constituted by the already issued order directing the trial, be removed from the challenged provision, so that the judge "may – possibly even ex officio – ascertain that the expulsion of the defendant was executed before the order directing the trial was issued and that the further conditions for pronouncing a judgment of non-lieu to prosecute are met.” Alternatively, the judge requests that "this conclusion be reached at least in cases where – due to error or for the most varied reasons – a request for committal for trial and a preliminary hearing was proceeded with in relation to crimes for which the issuance of the order of direct citation to trial would have been possible.”
6.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney’s Office, requesting that the question be declared inadmissible or unfounded.
According to the intervening party, the question should be inadmissible, as a norm has been challenged which, in any case, cannot find application in the concrete case. The State defense observes, in this regard, that, according to constant Supreme Court jurisprudence, the cause of non-prosecutability provided for by Article 13, paragraph 3-quater, of the Consolidated Text on Immigration applies only to the proceedings concerning the same act upon which the expulsion was ordered and executed, and does not preclude the initiation of other criminal proceedings for acts possibly committed by the foreigner before the expulsion took place (citing Supreme Court, Second Criminal Section, judgment of 31 May-26 June 2018, no. 29396). The referring judge would have omitted to address the aforementioned orientation, although relevant to the ascertainability of the proposed question, given that the proceedings under examination concern a criminal act different from that in relation to which the expulsion was ordered and executed.
The State Attorney’s Office further adds that the question, in any case, is unfounded, because, if upheld, it would lead to the generalized applicability of the institution provided for by Article 13, paragraph 3-quater, of the Consolidated Text on Immigration for any act, even of particular gravity, previously committed, with a result of evident unreasonableness. In this regard, it emphasizes that Judgment no. 270 of 2019 identified the ratio legis of the provision in the need to balance "the requirement to limit the return of the irregular immigrant to the State territory once expulsion has been executed […] and the necessity that crimes committed by the foreigner in the State territory be punished.” However, it observes that the State’s interest in exercising the punitive claim against the foreigner for acts different and further from those for which the expulsion was ordered and executed cannot be excluded in a generalized manner.
Considerations in Law
1.– With the order indicated in the heading (reg. ord. no. 80 of 2025), the Court of Florence, First Criminal Section, sitting as a single judge, doubts the constitutional legitimacy – with reference to Article 3 of the Constitution – of Article 13, paragraph 3-quater, of the Consolidated Text on Immigration, which, by regulating the relationship between the execution of administrative expulsion orders against irregular foreigners and any pending criminal proceedings against them, provides that "[i]n the cases provided for by paragraphs 3, 3-bis and 3-ter, the judge, having acquired proof of the expulsion having been carried out, if the order directing the trial has not yet been issued, shall issue a judgment of non-lieu to prosecute.”
The challenged provision had already been subjected to scrutiny by this Court, because, by literally referring to the "order directing the trial,” it appeared to imply the necessary passage through the preliminary hearing under Articles 416 et seq. of the Code of Criminal Procedure as the appropriate venue to ascertain this atypical inadmissibility condition, not allowing its application where the criminal action had been exercised by direct citation to trial. Following that proceeding, with Judgment no. 270 of 2019, the constitutional illegitimacy of the aforementioned paragraph 3-quater was declared, "insofar as it did not provide that, in cases of an order of direct citation to trial pursuant to Article 550 of the Code of Criminal Procedure, the judge [could] determine, even ex officio, that the expulsion of the foreign defendant [had] been executed before the order directing the trial was issued and that all conditions for issuing a judgment of non-lieu to prosecute [were] met,” considering it "contrary to the principle of equality and reasonableness” to exclude precisely the less serious crimes from the scope of application of paragraph 3-quater, for which the transition from the preliminary investigation phase to the trial phase does not involve the procedural step of the preliminary hearing.
The referring judge, called to rule on the liability of a foreign citizen, committed for trial by an order pursuant to Article 429 of the Code of Criminal Procedure when he had already been removed from the Italian territory, pursuant to an expulsion order adopted under Article 13, paragraph 2, of the Consolidated Text on Immigration, identifies an unjustified disparity of treatment between what they are allowed to order in the proceedings under review and what they could have ordered, as a result of the cited Judgment no. 270 of 2019, if the public prosecutor had issued an order of direct citation to trial.
The judge emphasizes, in fact, that if the criminal action had been exercised pursuant to Article 550 of the Code of Criminal Procedure, the trial judge could have determined, even ex officio, the existence of the conditions to issue a judgment of non-lieu to prosecute. Instead, since the public prosecutor, in this case, exercised the criminal action by requesting committal for trial, followed by the order under Article 429 of the Code of Criminal Procedure after the preliminary hearing, the judge cannot proceed in this manner, being prevented from doing so by the clause in the challenged paragraph 3-quater, "if the order directing the trial has not yet been issued,” and by constant Supreme Court jurisprudence, which excludes its analogical application (citing Supreme Court, Third Criminal Section, judgment of 6 February-28 April 2020, no. 13118, in a case of expulsion occurring after the judgment of first instance conviction, and conforming precedents).
Such different treatment would violate Article 3 of the Constitution, given the substantial overlap of the two situations, differing only in the form in which the criminal action was exercised.
The intervention of this Court is therefore invoked in order to remove the aforementioned clause, so that, even after the issuance of the order directing the trial, as occurs – following Judgment no. 270 of 2019 – after the order of direct citation, the trial judge may determine, even ex officio, that the expulsion of the foreign defendant was executed previously and that all conditions for issuing a judgment of non-lieu to prosecute are met. Alternatively, the referring judge requests that this possibility be allowed, at least, in cases where the order directing the trial was issued for crimes for which direct citation to trial would have been possible.
2.– Preliminarily, the President of the Council of Ministers objected to the inadmissibility of the question, due to its – deemed – irrelevance, since the referring judge would have omitted to address the orientation expressed by the Court of Cassation in judgment no. 29396 of 2018, according to which the cause of non-prosecutability provided for by Article 13, paragraph 3-quater, of the Consolidated Text on Immigration would only apply to the proceedings concerning the same act upon which the expulsion was ordered and executed, and would therefore be irrelevant in the proceedings under review, concerning a different criminal act.
2.1.– In this regard, this Court observes that, in fact, to define the scope of application of the inadmissibility condition, paragraph 3-quater precedes another clause, allowing the issuance of the judgment of non-lieu to prosecute only "[i]n the cases provided for by paragraphs 3, 3-bis and 3-ter” of the same Article 13. The Court of Cassation itself, in 2015, had specified that "the expulsion de qua can only exert its procedural effects with regard to the crime for which the Judicial Authority has provided its authorization (Article 13, paragraph 3), for which there was an arrest in the act or detention (Article 13, paragraph 3-bis) or in relation to which the precautionary measure of custody in prison applied to the suspect has been revoked or declared extinguished for any reason (Article 13, paragraph 3-ter). The express reference in Article 13, paragraph 3-quater of Legislative Decree 286/1998 to the preceding paragraphs 3, 3-bis and 3-ter makes it blatantly evident that the issuance of a judgment of non-lieu to prosecute can only occur when the expulsion follows [these] cases just indicated and not in any other of the different situations indicated in paragraph 2 of the same Article 13. Arguing otherwise would lead to the absurd conclusion that administrative expulsion of the foreign subject ex Article 13 of Legislative Decree 286/1998 would be sufficient to erase their entire criminal history” (Supreme Court, Second Criminal Section, judgment of 19 June-2 July 2015, no. 28112).
2.2.– This Court also, moreover, with Judgment no. 129 of 2025, in referring to what was clarified by the Court of Cassation regarding the scope of application of the institute under examination, affirmed that "[o]therwise, the unreasonable result would be reached of considering that the expelled foreigner benefits from a general condition of non-prosecutability for any crime, even a particularly serious one, committed before their expulsion (Cass., no. 29396 of 2018 and, in the same vein, Supreme Court, Third Criminal Section, judgment of 20 April 2023-22 February 2024, no. 7713).”
2.3.– The objection, however, is unfounded.
The referring judge, in fact, does not ignore that the expulsion was ordered and executed in the absence (of a request and issuance) of the authorization concerning the crime subject of the proceedings under review, but, as regards the relevance of the present question, maintains that, once the preclusion represented by the clause "if the order directing the trial has not yet been issued,” which prevents them from issuing a judgment of non-lieu to prosecute, is overcome – as a result of a possible ruling of acceptance by this Court – they could proceed, even ex officio, to ascertain the existence of all other conditions.
In effect, Judgment no. 270 of 2019 states that "the distinct issue of the relevance of the prior authorization from the judicial authority for the administrative expulsion of the irregular foreigner against whom criminal proceedings are pending can only arise when, once the impediment challenged by the referring judge has been removed, the latter can then proceed to verify the conditions provided for by the challenged provision for the applicability of the supervening inadmissibility condition,” expressly adding that the judge "will be called to carry out [this verification] even in the absence of authorization” (point 3, last paragraph, of the Considerations in Law).
However, this statement was made in the context of a referral order that did not clarify whether the expulsion was executed in the total absence of authorization and whether, therefore, it was lawfully executed. The referring judge themselves, moreover, in reporting that Supreme Court jurisprudence had not applied the principles of Judgment no. 270 of 2019 in proceedings where the preliminary hearing had been held, cited the aforementioned Supreme Court Judgment no. 7713 of 2024, which refers precisely to a case of unlawfully executed expulsion, due to lack of power, because the authorization of the judicial authority was missing. In the present case, however, the same referral order acknowledges that the Rome Police Headquarters, having noted that a proceeding was pending before the Public Prosecutor's Office of Rome against the foreign citizen subject to the expulsion order, requested the prescribed authorization from the latter, while making no such request for the different proceeding pending before the judicial authority in Florence. The defendant was thus expelled in the presence of an authorization, which, however, was requested and granted in reference to a crime different from that which is the subject of the proceedings under review, and this is why the issue of the scope of application of the challenged provision, defined by the clause "[i]n the cases provided for by paragraphs 3, 3-bis and 3-ter,” might arise.
The referring judge, therefore, in substantiating the relevance of the question, mistakenly interprets the statement contained in Judgment no. 270 of 2019, extending it also to cases, such as the present one, where proceedings are conducted for crimes different from the one in relation to which the authorization for expulsion was requested and granted. In fact, there can be no talk of a lack of relevance, but of an erroneous reconstruction of the interpretative premise, an aspect that does not pertain to the admissibility requirements of the question, but to its merits. According to the constant jurisprudence of this Court, in fact, the assessment of relevance is reserved to the referring judge, and with respect to it, the Court carries out only an external review, limited to ascertaining that the reasoning is not implausible, not clearly erroneous, and not contradictory (Judgments no. 160 and no. 139 of 2023, no. 199 and no. 192 of 2022, and no. 32 of 2021), without delving into an independent examination of the elements that led the referring judge to certain conclusions, being able to infer on this assessment only if it appears absolutely unfounded at first glance. The agreeableness or otherwise of the reasoning provided by the referring judge therefore pertains to the merits and does not preclude the recognition of the prerequisite of relevance.
3.– On the merits, both questions raised by the referring judge – principal and subordinate – are unfounded.
It should be noted that the institution governed by the challenged provision, as reconstructed by this Court in Judgments no. 270 of 2019 and no. 129 of 2025, constitutes "a supervening condition of non-prosecutability of the criminal action for the crime committed in the State territory by the irregular immigrant [which operates] when the execution of his (administrative) expulsion occurs before the issuance of the order directing the trial” (Judgment no. 270 of 2019, point 7 of the Considerations in Law). It has been clarified that "[t]his procedural rule, which is part of the legislative interventions aimed at a comprehensive tightening of the discipline to counter irregular immigration, is not intended to constitute a sort of immunity for the foreigner from jurisdiction, but, as recalled also by the referring judge, is ‘the result of a balance, made by the legislator, between the need to limit the return of the irregular immigrant to the State territory once expulsion has been executed (also given the practical difficulty of enforcing forced returns) and the necessity that crimes committed by the foreigner in the State territory be punished.’ It is, in fact, a non-prosecutability ‘temporary and subject to a sort of "resolutory condition,” in the sense that, if the obligation to re-enter the State territory is subsequently violated for the period of time established by paragraph 3-quinquies of the same article, Article 345 of the Code of Criminal Procedure shall apply and the criminal action shall again become prosecutable’” (Judgment no. 129 of 2025, point 3 of the Considerations in Law).
The challenged provision, in fact, is part of the discipline, contained in the Consolidated Text on Immigration, of the relationship between the execution of administrative expulsion and the pending criminal proceedings against the foreigner who is the subject thereof, "centered on the institutes, provided for by Articles 13 and 17, of judicial authorization, the authorization for the expelled foreigner to re-enter for the exercise of the right to defense, and the non-prosecutability of the criminal action due to expulsion” (again Judgment no. 129 of 2025). In particular, the same judgment specifies that "in the phase preceding the execution of the expulsion order, when the foreigner is subject to criminal proceedings and is not in pre-trial detention, the administrative authority, according to the provisions of paragraphs 3, 3-bis and 3-ter of the aforementioned Article 13, must request authorization from the prosecuting judicial authority in criminal proceedings, which may deny it only in the presence of overriding procedural needs, assessed in relation to the ascertainment of the liability of any co-perpetrators of the crime or defendants in proceedings for related crimes, and to the interest of the injured party. Once authorization is granted (or tacit approval of the request is established) and the expulsion is executed, if the order directing the trial or other equivalent provision has already been issued in the criminal proceedings, Article 17 of the Consolidated Text on Immigration applies, which allows the expelled foreigner to return to Italy, if equipped with authorization, only for the time necessary to exercise the right to defense, for the purpose of participating in the trial or performing acts for which their presence is necessary. If, however, the procedural relationship has not yet been established, the order directing the trial or other equivalent provision not having been issued, paragraph 3-quater of the same Article 13 applies, which requires the judge to issue a judgment of non-lieu to prosecute, discontinuing the proceedings” (Judgment no. 129 of 2025, point 3 of the Considerations in Law).
It should also be recalled that, pursuant to Article 3, first paragraph, of the Constitution, a claim of unreasonable disparity of treatment can only be made if the challenge aims to extend the same discipline to situations that, having regard to the ratio legis of that regulation, are homogeneous (ex multis, most recently, judgments no. 53 and no. 34 of 2025, no. 212 and no. 171 of 2024). Consequently, the principle of equality does not prevent the ordinary legislator from enacting differentiated norms when the disparity of treatment is based on objective logical premises that justify its adoption (ex plurimis, judgments no. 149 of 2021, no. 288 of 2019, and, in earlier times, Order no. 460 of 1998).
4.– That being established, the doubt of the referring judge is based on the assumption that, after Judgment no. 270 of 2019, it would constitute an unjustified disparity of treatment to preclude the trial judge, in proceedings where the criminal action was exercised by requesting committal for trial, from the possibility of ascertaining the inadmissibility condition provided for by Article 13, paragraph 3-quater, of the Consolidated Text on Immigration in the phase following the issuance of the order under Article 429 of the Code of Criminal Procedure, if the expulsion of the foreign defendant was executed on a prior date.
The referral order, however, compares heterogeneous situations, since the hypothesis under review in the proceedings under examination is not comparable to that which was the subject of the question addressed and decided in Judgment no. 270 of 2019.
In the latter ruling, in fact, the breach was found precisely in the circumstance that the challenged provision, by literally referring to the "order directing the trial,” implied the necessary passage through the preliminary hearing, thus leaving no possibility to issue a judgment of non-lieu to prosecute in cases where the criminal action was exercised by direct citation to trial, and therefore lacking a phase of adversarial debate before reaching the trial judge (point 1, third paragraph, of the Considerations in Law).
In the proceedings under review, however, the preliminary hearing was duly held, and thus the procedural juncture identified by the challenged provision as the moment when the judging body is required to verify the possible existence of the inadmissibility condition has been reached.
The very provision for an adversarial procedural phase before the judging body justifies the differentiated treatment of the two situations compared by the referring judge.
It cannot be considered manifestly unreasonable, in fact, that the legislator, having to balance, in the exercise of their discretion, the opposing needs of limiting the return of the irregular immigrant and punishing crimes committed in the State territory, has fixed the issuance of the order directing the trial as the time limit beyond which the atypical inadmissibility condition provided for by Article 13, paragraph 3-quater, of the Consolidated Text on Immigration can no longer be ascertained. The choice to waive the punitive claim against the expelled foreigner only until the process is in an initial phase, that is, until the order under Article 429 of the Code of Criminal Procedure is issued, does not appear inconsistent, since there is still a procedural venue – the preliminary hearing – where the judging body can, in an adversarial setting, ascertain whether the inadmissibility condition has occurred due to the execution of the expulsion. Instead, once the procedural juncture of the preliminary hearing has been passed and the judge of that hearing has assessed the prognosis of reasonable conviction, it cannot be deemed illogical that the legislator considered the State’s interest in continuing the trial to be prevailing, in order to ascertain the possible culpability of the defendant, even if they have been expelled and removed from the State territory, deeming the interest in avoiding their re-entry solely for the exercise of the right to defense to be recessive at this point.
These considerations are also in line with Supreme Court jurisprudence, which has affirmed that "[i]t appears, in fact, logically consistent to hold that the public interest in reducing considerable prison overcrowding and removing subjects under criminal proceedings from the State territory, based on a legislative discretionary assessment that is by no means irrational, may prevail over the interest in holding the criminal trial, in a phase where the procedural relationship between the parties, with the entire complex catalog of principles governing it, established by Article 111 of the Constitution, has not yet been constituted, whereas, at the moment when such a relationship is established – through the adoption of acts, such as the order directing the trial or the defendant’s appearance before the trial judge for the confirmation of the arrest and the simultaneous trial, which demonstrate the State’s will to prioritize the interest in holding the trial over the other interests underlying the issuance of the atypical judgment of non-prosecutability under discussion – the public interest in the ‘natural’ conclusion of the trial itself persists, represented by the different decisional outcomes contemplated by the Code of Procedure, to which the judgment of non-prosecution due to the expulsion of the foreigner from the State territory is entirely extraneous” (Supreme Court, Fifth Criminal Section, judgment of 22 April-4 August 2021, no. 30522).
The power of the legislator to identify a different time limit remains unaffected.
5.– The aforementioned considerations lead to the conclusion that both the question raised as the principal one and the one raised as a subordinate one are unfounded. Regarding the latter, even if the contested crime allows for the criminal action to be exercised by direct citation to trial, once the criminal action has been exercised by requesting committal for trial, the preliminary hearing constitutes the procedural juncture reasonably identified by the challenged provision as the moment when the judging body is required to verify, in an adversarial setting, the possible existence of the inadmissibility condition.
Moreover, in the specific case, the referring judge themselves reports that the defendant's trusted defense counsel was present at the preliminary hearing and could well have pointed out (in what was the first venue for raising objections) that their client was absent because they had been removed from Italian territory following an expulsion order.
Furthermore, it should be recalled that the preliminary hearing, considering the normative evolution, has now become a moment of "judgment.” In fact, following the important innovations introduced, in particular, by Law no. 479 of 16 December 1999 (Amendments to the provisions on proceedings before the court sitting as a single judge and other amendments to the Code of Criminal Procedure. Amendments to the Criminal Code and the Judicial Order. Provisions regarding pending civil litigation, allowances due to the Justice of the Peace, and the exercise of the legal profession) and, subsequently, by Legislative Decree no. 150 of 10 October 2022 (Implementation of Law no. 134 of 27 September 2021, delegating the Government for the efficiency of the criminal process, as well as on restorative justice and provisions for the swift conclusion of judicial proceedings), this hearing has undergone a profound transformation both in the quantity and quality of evaluative elements that can be admitted there, and in the powers correlatively attributed to the judge, and finally, as regards the broader range of decisions that the same judge is called to adopt. It has therefore been deemed, also by this Court, a deliberative moment devoid of the "summary characteristics” that originally characterized it (Order no. 150 of 2024; in the same sense Judgment no. 335 of 2002 and Order no. 269 of 2003).
6.– In conclusion, the questions of constitutional legitimacy of Article 13, paragraph 3-quater, of Legislative Decree no. 286 of 1998, raised with reference to Article 3 of the Constitution, are unfounded.
for these reasons
THE CONSTITUTIONAL COURT
declares unfounded the questions of constitutional legitimacy of Article 13, paragraph 3-quater, of Legislative Decree of 25 July 1998, no. 286 (Consolidated Text of provisions concerning immigration and rules on the status of foreigners), raised, with reference to Article 3 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, with the order indicated in the heading.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 3 November 2025.
Signed:
Giovanni AMOROSO, President
Maria Alessandra SANDULLI, Rapporteur
Roberto MILANA, Director of the Registry
Filed with the Registry on 16 December 2025
The anonymized version is textually compliant with the original