The two judgments under discussion—one delivered by the Tribunale di Bergamo and the other by the Tribunale di Bari—address, albeit in distinct factual settings, the application of the ground of non-punishability for the particular tenuousness of the offence under Article 131-bis of the Italian Criminal Code, with specific regard to the offence provided for by Article 13(13) of Legislative Decree No. 286/1998. Both decisions adopt an interpretative approach that privileges the concrete circumstances of the conduct, thereby moving beyond a merely formal appraisal of the violation.

In the Bergamo case, the defendant—an Albanian national subject to an expulsion order issued by the Prefect of Milan in October 2024—re-entered Italian territory in order to reunite with his lawfully resident spouse, while at the same time applying for a residence permit on grounds of family unity. The conduct consisted solely of re-entry in breach of the prohibition, in the absence of any element of violence, any concrete danger to the community, or any additional unlawful conduct, and without producing consequences beyond the formal infringement of the administrative measure. The defendant’s young age and clean criminal record supported a finding of non-habitual conduct, as no indication emerged of a propensity to reoffend or of prior breaches of immigration law. The court therefore issued a judgment of acquittal pursuant to Articles 530 of the Code of Criminal Procedure and 131-bis of the Criminal Code.

The Bari case presents a considerably more complex subjective profile. The defendant—also an Albanian national, but with prior convictions and subject to a seven-year re-entry ban issued by the Prefect of Bergamo on 5 October 2022—left the national territory on 23 December 2024, upon completion of a probationary measure involving community service, and subsequently re-entered clandestinely, motivated by the need to reunite with his father, brother, and nephews residing in Bari.

A decisive factor for the recognition of the ground of non-punishability was the fact that the defendant voluntarily appeared—assisted by his chosen counsel—before the Immigration Office of the Police Headquarters for the sole purpose of initiating the procedure to regularise his legal status, in the course of which he was arrested.

Notwithstanding these elements, the single-judge formation of the Tribunal of Bari held Article 131-bis applicable, grounding its reasoning in a systematic interpretation of the provision in light of the Cartabia Reform (Legislative Decree No. 150/2022), and drawing on the case law of the Sezioni Unite della Corte di Cassazione, which recognises, in principle, the compatibility of this ground of non-punishability with offences of disobedience. Such offences are characterised by a politico-criminal logic of “all or nothing,” whereby the mere occurrence of the violation is decisive, irrespective of the degree of harm caused. Within this framework, the court emphasises the distinction between “threshold indicators”—namely, the manner of the conduct and the slightness of the harm—and “evaluative indicators”—namely, the tenuousness of the offence and its non-habitual nature—both of which must be assessed in relation to the concrete facts of the case rather than the abstract legal definition.

It is precisely at the level of these concrete indicators that the two decisions converge, notwithstanding their markedly different subjective premises. In both cases, the reason for re-entry was rooted in documented family considerations; the conduct following the offence was consistently directed towards regularising the individual’s legal status through official administrative channels; and the defendants voluntarily presented themselves to the authorities—an element which the Tribunal of Bari interpreted as indicative of a low degree of culpability and of a limited threat to the protected legal interest. As regards non-habituality, the Bari judgment adopts a methodologically rigorous approach, clarifying that prior convictions cannot operate as an automatic bar: the assessment must instead be grounded in the specific circumstances of the case, which, in this instance, revealed the limited harmfulness of the conduct and the absence of indicators of enduring social dangerousness.

The broader significance of these rulings lies in the firmness with which both courts refuse to apply the incriminating provision mechanically in the presence of circumstances that deprive the conduct of its substantive harmfulness. The punitive rationale underlying Article 13(13) of Legislative Decree No. 286/1998 presupposes conduct marked by a deliberate challenge to public order. Where this element is lacking in substance—because the individual re-enters for family reasons and actively seeks to regularise his or her status—the ground of non-punishability does not amount to an act of leniency, but rather constitutes a safeguard ensuring that the criminal response remains proportionate to the actual wrongfulness of the conduct. The Bergamo judgment demonstrates this in a context favourable to the defendant; the Bari judgment affirms it in a more demanding context, thereby contributing to legal practice that is likely to endure.