Italy – Court of Cassation, judgment no. 16489

The Court of Cassation ruled that a stateless person could be deported only in the case provided for in Article 31 of the 1954 Convention, i.e. on the basis on national security or public order, and not on the grounds of their irregular presence on the territory. Article 31 is applicable, by analogy, to de facto statelessness and/or pending a formal statelessness determination procedure, if the condition of stateless had already emerged from the information and documentation provided by the competent authorities (of the Italian state or of the country of origin). The Court recognised the de facto stateless status of the applicant and repealed the deportation orders.

Case name (in original language)
Cassazione civile sez. I - 19/06/2019, n. 16489
Case status
Case number
Cassazione civile sez. I - 19/06/2019, n. 16489
Date of decision
Court / UN Treaty Body
Court of Cassation
Language(s) the decision is available in
Applicant's country of birth
Bosnia Herzegovina
Applicant's country of residence
Relevant Legislative Provisions

Article 1(1) and Article 31(1) 1954 Convention on the Status of Stateless Persons

Art. 3, para 4 bis of the Consolidated Law on Immigration

Italian Law no. 306 of 1962

Article 13 et seq. of the Legislative Decree No 286/1998


The applicant has Bosnian origin and had been living in Italy since 1986. The applicant has not returned to Bosnia since his arrival to Italy. Due to the breakup of Yugoslavia, he did not hold any official nationality. He therefore claimed he was stateless. The applicant had been subjected to a deportation order in 2014, which was not carried out due to his status.

On 18 February 2016, a deportation order was issued against Mr. T.R. since the latter had not regularised his presence on the Italian national territory (also the “First Deportation Order”). The First Deportation Order underlined: a) the non-existence of the conditions for the issuance of a residence permit; b) the existence of the prerequisites to consider Mr. T.R. as a person at risk of escape, pursuant to Art. 3, para 4 bis of the Consolidated Law on Immigration, in the event that he was granted a time limit for voluntary departure, having declared that he did not want to come back to his country of origin, not having a document for expatriation, having provided various personal details on the occasion of identification stops made by the police and being without a stable accommodation where he could be located. 

Mr T.R. filed an appeal against the First Deportation Order, alleging that: (a) he entered Italy in 1986, when he was still a Yugoslav citizen; (b) he had never returned to Yugoslavia after 1986; (c) he had never returned to Bosnia, his place of birth, from 1992 onwards; d) he owed the conditions for the declaration of statelessness and this situation had prevented the execution of three previous deportation orders (the “Appeal no. 24550/2016”).

The Justice of the Peace of Rome (i.e. Giudice di Pace di Roma) rejected the appeal filed by Mr. T.R. against the First Deportation Order on the following grounds: (a) Mr. T.R., although he met the requirements for the declaration of statelessness, had never applied for it despite his entry into Italy in 1986; (b) Mr T.R. was a socially dangerous person; (c) the failure to translate the First Deportation Order into a language known to the person to be deported does not render the expulsion decree null and void whenever the administrative authority states the technical and organisational reasons why translation is not possible.

On 10 May 2016 a further deportation order was issued against Mr T.R. (the “Second Deportation Order”) stating that T.R. had not complied with the First Deportation Order.

Mr. T.R. also appealed against this decree for the same reasons expressed in the Appeal no. 24550/2016, which was again rejected by the Justice of the Peace of Rome (the “Appeal no. 7258/2017”).

Mr T.R. then appealed separately to the Supreme Court of Cassation against both decisions issued by the Justice of the Peace of Rome. The two appeals were then reunited.

Decision & Reasoning

The Court determined that pursuant to Article 1 of the 1954 Convention on the Status of Stateless Persons (the “1954 Convention”), ratified in Italy by Law no. 306 of 1962, stateless person means “a person who is not considered as a national by any State under the operation of its law”. In its Judgment no. 28873/2008, the Italian Supreme Court of Cassation identified the following meaning of stateless person: “a person who is in a country of which he/she is not a citizen coming from another country of which he/she has formally or substantially lost citizenship”. Therefore, according to the Court, any person who meets the requirements of the 1954 Convention, as also outlined by the Judgment no. 28873/2008, is to be considered stateless.

The Court also points that even when the status of stateless person has not yet been judicially ascertained, but its conditions have unequivocally emerged from the administrative and documentary investigations carried out by the competent authorities, the condition of a person who is in a country of which he/she is not a citizen, coming from a country of which he/she has lost his citizenship, must be considered relevant.

The Court determined that, although the applicant has never initiated a statelessness determination procedure, he had already been incidentally recognised as a stateless person. This can be inferred by the fact that the Bosnian Embassy did not recognise the claimant as a Bosnian national. He had been subject to three expulsions orders, which had all been revoked due to his lack of expatriation documents.

The applicant's stateless status is derived from the breakup of the Socialist Federal Republic of Yugoslavia. When this took place, the applicant was already living in Italy. As a result, he was deprived of a Yugoslav nationality and could not obtain Bosnian nationality according to Bosnian nationality laws.

In its previous Judgment no. 28873/2008, the Court reiterated that statelessness determination should consider not only the lack of formal prerequisites for the acquisition of nationality of the country of origin, but also substantial considerations. Indeed, the Court establishes that “the declaratory and non-constitutive nature of judicial recognition of stateless status cannot be disregarded" (paragraph 21). In this case, even if the applicant has not formally requested the recognition of his stateless status, the Court stated that it has emerged by the investigations conducted by Bosnian and Italian public authorities that he is de facto stateless.

Once the Court had established that the applicant is de facto stateless, it examined the possibility of issuing a deportation order under art. 13 d.lgs 286/1998 and its compatibility with Article 31 of the 1954 Convention, which provides that Contracting States shall not deport a stateless person lawfully in their territory save on grounds of national security and public order. This provision must also apply, by analogy, to those who are de facto stateless, even in the absence of formal legal recognition of the status of stateless persons.

Moreover, the lack of formal statelessness determination does not justify an expulsion order because, as the applicant’s history testifies, it is impossible to deport a person who is not legally recognised by the receiving State.

In the case in question, the Court also noted that the deportation orders were not issued on the basis of the finding that the applicant was a threat to national security, but exclusively based on his irregular status in Italian territory. 


The Court annulled the deportation orders issued against the applicant.

Caselaw cited

Cassazione Civile Sezioni Unite Sentenza n. 4823/2004

Cassazione Civile Sezioni Unite Sentenza n. 28873/2008

Cassazione Civile Sezioni Unite Sentenza n. 4262/2015