The criminal offense of facilitating irregular immigration is under the watch of judges, who have raised the issue of interpretation (constitutionality) in the European Court.
Thus, the Cutro decree risks collapsing. If the judges insist on verifying the compatibility of the norms with European Union law, this does not mean that they are targeting the Meloni government’s policies on immigration.
For example, the case brought by the Bologna court for the crime of facilitating irregular immigration has been brought before the Court of Justice of the EU. The court’s doubts relate primarily to European legislation, and only then to the national law that implements it.
In 2019, a woman of Congolese origin, at the border crossing point of Bologna airport, presented forged documents for herself and two minors (her daughter and granddaughter) and was arrested on charges of aiding irregular immigration, aggravated by the use of an international transport service (airplane) and forged documents.
The Bologna Court raised the issue of constitutionality regarding the aggravating circumstances of the crime, due to the conflict with the principles of equality, reasonableness and proportionality of the sentence. In March 2022, the Constitutional Court declared the norm on aggravating circumstances illegal. In July 2023, the court referred the case to the Court of Justice of the EU to assess whether the European legislation on facilitating irregular immigration, known as the “Facilitator Package”, and the Italian law implementing it, are in compliance with the Charter of Fundamental Rights of the European Union.
Regulation in the EU and Italy
The “facilitators package”, consisting of an EU directive (2002/90) and a 2002 European Council framework decision, requires EU member states to punish “any person who intentionally assists a non-national (…) to enter or transit the territory of a Member State in breach of the laws of that State”.
However, “any member state may decide not to take punitive measures” for those who facilitate the entry of foreigners solely for humanitarian purposes, i.e. without financial gain.
More specifically, EU member states are obliged to include the crime of facilitating irregular immigration, but can only optionally provide for a “humanitarian” exemption.
In Italy, EU legislation has been implemented through Article 12 of the Unified Immigration Law, which punishes the crime (with imprisonment of 2-6 years and a fine of 15,000 euros) without any humanitarian exception. This article also provided for aggravating circumstances, which – as indicated above – were abolished by a decision of the Constitutional Court.
The Bologna Court asked the Court of Justice to assess whether European legislation, by providing for the criminalisation of the facilitation of irregular immigration without any exception for those acting for humanitarian purposes or for family obligations, violates the Charter of Fundamental Rights of the EU: in particular, the principle of proportionality (Article 52, paragraph 1), together with the rights provided for by the Charter such as personal liberty (Article 6), the right to life (Article 2), physical integrity (Article 3), asylum (Article 18) and family life (Article 7).
The court also sought to assess whether Article 12 of the Italian law, by not excluding liability for those who act without a profit motive, violates these provisions.
The Advocate General of the Court of Justice of the EU, in his conclusions on 7 November, stated – among other things – that it is up to member states to adopt proportionate legislation, allowing judges to “distinguish the prosecution of a person who has acted for humanitarian purposes” from that of those who are motivated exclusively by the “purpose of profit”.
The Court’s decision, expected to be taken at the end of 2024 or at the beginning of 2025, could confirm the validity of the “facilitator package” or consider some of its provisions incompatible with the EU Charter of Fundamental Rights, in particular that which provides only the possibility, and not the obligation, to exempt from liability those who have acted for humanitarian reasons.
In this second case, the European Commission would have to intervene to change European legislation. But the Italian government would also have to reformulate the regulation on the crime of facilitating irregular immigration. This would also affect the “universal crime”, sanctioned by the Cutro decree, with which Meloni claimed to prosecute facilitation “throughout the globe”. The inevitable complaints about a conspiracy of judges would be even more unfounded than in other cases.
Note: This article was published on the Italian platform “Domani”
Author: Vitalba Azzollini, lawyer
