With the judgment No. 43 of 6 February 2024 (dep. 19 March 2024), the judges of the Italian Constitutional Court declared the illegitimacy of Article 103, paragraph 10, letter c), of the Decree-Law no. 34, of 19 May 2020 (Urgent measures on health, support for work and economy, and social policy related to the Covid-19 epidemiological emergency), converted, with amendments, into Law no. 77, of 17 July 2020, in so far as it does not exclude the offence referred to in Article 73, paragraph 5, of the Presidential Decree no. 77, of 9 October 1990 (Consolidated text of laws on the regulation of drugs and psychotropic substances, prevention, treatment and rehabilitation of drug addiction), when providing for offences related to drug trafficking. 

The provision of Article 103, par. 10, letter c) cited above infringes the principles of reasonableness and proportionality laid down in Article 3 of the Constitution, in that as it automatically prevents access to the procedures for regularising irregular work and setting up of employment contracts provided for by Decree-Law no. 3, of 19 May 2020, to foreigners convicted of the offence referred to in Article 73, par. 5, Presidential Decree no. 309 of 9 October 1990 (commonly known as petty drug trafficking).

This exclusion expresses an absolute presumption of dangerousness of the migrant, which seems arbitrary because it does not correspond to the generalised data of experience that can be summarised in the id quod plerumque accidit formula: the minor gravity of the offence does not justify such a presumption and is not suitable to found an automatic judgement of persistent dangerousness of the convicted person. Therefore, it will be up to the discretion of the administration to make a concrete assess of the applicant’s dangerousness, on the basis of indicators such as the time elapsed since the offence was committed, the sentence served, the rehabilitation path followed and the behaviour of the applicant after the execution of the sentence.