Constitutional Complaint Filed: iuventa case takes a turn as legal basis for criminalization is challenged

May 16, 2023

Trapani – In last Fridays recent hearing in the trial against the iuventa crew and others – one of the largest and most far-reaching criminal trials against sea rescue NGOs – iuventa’s defence filed a request to the Italian Constitutional Court, challenging the legal basis of the criminal proceedings. This legal action questions the Italian and European legislation on “smuggling” cases, based on which more than 1,000 people are currently detained in Italy alone.

Francesca Cancellaro, iuventa lawyer: “It’s time to rethink the whole discipline. As of today, this criminal case against individuals has taken on broader legal scope, extending beyond this singular case. This is a significant development for us as it fully reflects the nature of the charges, which were never only about the individual defendants but rather an attack on all who have engaged in similar conduct, are currently doing so, or may do so in the future.”

At the press conference held the following day, Saturday 13.05.23, we were given the opportunity to explain the merits of the referral to the constitutional court and its possible consequences. The recording of the press conference is available on our website!

A full summary of the petition can be provided on request (in Italian and English) by contacting us at

Further background information on the ‘Facilitators’ Package’, Article 12 of the Immigration TU and a collection of materials and sources on the impact of the criminalisation of migration and solidarity can be downloaded here: PRESS KIT.

The defence’s request challenges the constitutional legitimacy of the facilitation offence under art.12 of the Italian Immigration Act, along with its aggravating factors related to the number of people committing the crime and to the number of people transported. The complaint argues that both art.12 and its aggravating factors violate the principle of equality, of reasonableness and of proportionality.

Furthermore, the complaint raises the question of the incompatibility of two of the provisions of the “Facilitators’ Package” with the European Charter of Fundamental Rights. Iuventa’s defence argues that the obligation to criminalise, in all circumstances including acting out of solidarity, the facilitation of unauthorised entry and, at the same time, the discretion granted to Member States in the application of the so-called ‘humanitarian clause’, violate the fundamental rights of persons who facilitate, in a manner respectful of the dignity and integrity of persons, the crossing of the borders of persons on the move by them.

Kathrin Schmidt, iuventa defendant: “A judiciary system applying inhumane law can never do justice. After all it is not malfunctioning and must be changed – it is working exactly as intended and must be ended. I will rather be prosecuted for the people whose rescue I facilitated than live untroubled for being complicit in facilitating their murder.”

Lorenzo Trucco,  human rights lawyer and president Associazione Studi Giuridici Sull’Immigrazione (ASGI) : “Truly great is the importance and the very usefulness of the presentation of the question of constitutional legitimacy or preliminary referral to the Court of Justice in relation to Article 12 of Italian Immigration Act, which has always represented an element of serious obscurity in the panorama of legal civilization. The extreme vagueness of the rule that places on the same very high level of sanctions, further exacerbated by L.50/23, situations of completely different gravity, the unjustifiable territorial limitation of the so-called humanitarian clause, constitute an unbearable violation of the principles of equality, reasonableness, proportionality, which transcends the same merely legal level.”