Court of Rieti, sentence no. 407 of 18 July 2022
A foreigner who fails to comply with an invitation to report to the police station for expulsion purposes is not liable for the offence under Article 650 of the criminal code
The Court in monocratic composition, " ...., acquitted of the crime provided for in Article 650 of the Criminal Code the foreign citizen who, by failing to appear at the Immigration Offices of the Rieti Police Headquarters on the day and at the time established in the invitation card notified to him by the Rieti Police Headquarters General Prevention Office on 12.08.2015, did not comply with an order legally given by the Public Security Authority for reasons of justice/public safety/public order.
On this point, the court of legitimacy found in the judgment of the Court of Cassation, Criminal Sect, Sez. 1, Judgement no. 9890 of 05/02/2021, Rv. 280676 - 01, that "A foreigner who does not comply with the invitation to present himself at the Immigration Office of the Police Headquarters in order to be expelled from the national territory is not liable for the offence referred to in Article 650 of the Criminal Code, since the removal order of the Questore and the related procedure described in Article 14 of Legislative Decree no. 286 of 25 July 1998 cannot be replaced by other acts.
This is by now a constant approach followed by the most recent jurisprudence of the Supreme Court, which has repeatedly affirmed that a third-country national, who is caught in the national territory without a residence permit or other document certifying his regular presence in Italy, is a person under suspicion of the crime of illegal entry and stay in the territory of the State, provided for by legislative decree. lgs. 26 July 1998, no. 286, art. I0-bis (Testo unico delle disposizioni concernenti la disciplina dell'immigrazione e norme sulla condizione dello straniero, hereinafter T.U. imm.), as supplemented by L. 15 July 2009, no. 94, bearing: 'Disposizioni in materia di sicurezza pubblica', whose art. 1, par. 16, bed. a), introduced the said art. I0-bis.
According to the Supreme Court, that the quality of person subject to investigation of the foreigner illegally present in the territory of the State, in relation to the offence provided for by Article I0-bis, paragraph 1, T.U. imm. makes him the holder of the rights and guarantees of the defendant under Article 61 c.p.p., and, therefore, excludes that the same can be the recipient, due to the ascertainment of his irregular position, of measures of the Authority whose non-compliance is further and autonomously sanctioned in criminal proceedings. It must, therefore, be affirmed that the non-compliance of the person under investigation with the order to present himself to the Investigative Police to be fully identified or to "regularize his position as clandestine immigrant", is sanctioned through the possibility of ordering the forced accompaniment, but "does not integrate the subsidiary contravention of Art. 650 of the Criminal Code, which operates only when the violation of the obligation, imposed by an order authorised by a provision of law or regulation, or by a legitimate measure of the authority, does not find in the legal system any other specific sanction, which, while constituting the reaction provided by the legal system to non-compliant behaviour, does not necessarily have to be compulsory or criminal in nature, as it can also be administrative or procedural in nature.
Prof. Avv. Paolo Iafrate
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