The preliminary hearing on 23 June lasted less than two hours. The judge delivered two decisions (ordinanze) rejecting several recent challenges raised by Iuventa defense lawyers and supported by other defense counsel.

The first decision dealt with the defense lawyers’ constitutional complaint challenging the legitimacy, on several grounds, of Article 12 of Italy’s Consolidated Immigration Act (Testo unico sull’immigrazione (TUI), based on Legislative Decree 286/1998), as well as the EU Facilitators’ Package. In his reasoning, the judge presented separate observations related to: (i) the “facilitation” offense under Article 12(1) TUI; (ii) the aggravating elements under Article 12(3)(a) and (d) TUI, namely those linked to the number of people who commit the offense and the number of people transported; (iii) the so-called “humanitarian exemption” under Article 12(2) TUI; and (iv) the EU Facilitators’ Package. On the first three issues, the judge denied referral to the Italian Constitutional Court, and on the last issue, denied referral to the Court of Justice of the EU (CJEU).

The judge ruled the Iuventa defense lawyers’ challenges regarding the constitutional legitimacy of the offense of facilitating irregular entry of non-EU nationals to Italy and its aggravating elements to be “manifestly ill-founded” (manifestamente infondate). He stressed the legislator’s discretion to establish criminal policy, including related punishments or sanctions. In explaining his decision, he cited case law from Italy’s Constitutional Court (Decision No. 63 of 10 March 2022) interpreting the legal and public interests protected by Article 12 TUI, namely the “orderly management of migratory flows” (unofficial translation) for the purpose of safeguarding the balance of the national labor market, social security system resources, public order and security. Without elaborating his position on the interaction and balancing of these various interests or explicitly addressing the fundamental rights of migrants and refugees at stake, the judge concluded that the protection of the “orderly management of migratory flows,” the public interests mentioned, and the intent to combat migrant smuggling by organized crime groups, justified the penalties established by the legislator for both the basic “facilitation” offense and cases involving aggravating circumstances. For both the basic offense and cases involving aggravating circumstances, he found the prescribed penalties to be proportionate and consistent with the punishment’s purported aim of rehabilitation (finalità rieducativa della pena), even when applied to instances of facilitating irregular entry for humanitarian/solidarity purposes. In this regard, he noted that mitigating circumstances and other general defenses under Italian law may apply to cases where the aim of the conduct is to provide humanitarian assistance to the person(s) concerned.

The judge considered the defense counsel’s challenge regarding the constitutional legitimacy of the applicable scope of the “humanitarian exemption” under Article 12(2) TUI, which only applies to acts carried out for the benefit of foreigners in need who are already on Italy’s territory, to be “irrelevant” (irrilevanti). Without addressing the legal questions posed by the defense’s arguments, the judge derived this conclusion from the factual description of the defendants’ conduct listed in the indictment. He noted that the “wording” of the indictment “does not reveal the humanitarian intent of the conduct […], rather it appears that the conducts were committed by the defendants in complicity with the Libyan traffickers […]” (unofficial translation). The judge also noted that the “humanitarian exemption” under Article 12(2) TUI applies to foreigners “in need,” but stated that in the case at hand, it is unclear whether the transported people were in a situation of need, as the Iuventa defense contends. Moreover, he declared that the territorial limitation of the applicability of the “humanitarian exemption” is not “unreasonable” (irragionevole), given the possible applicability, without territorial limitation, of the necessity defense (state of necessity justification) as well as other defenses under Italian law.

The judge also rejected the Iuventa defense lawyers’ request for a referral to the CJEU to assess the alleged illegitimacy of the EU Facilitators’ Package and the provisions of Article 12 TUI that constitute its national implementation. He held that the criminalization of the facilitation of irregular entry to Italy and to the EU is fully compatible with the fundamental rights of the alleged offenders and the migrants themselves. Specifically, he declared that the limitations on the exercise of the rights of both the persons who carry out the “facilitation” of irregular entry and those who are assisted are proportionate in comparison to the interests protected through the “facilitation” offense, and hence do not violate provisions under Article 52 paragraph 1 of the Charter of Fundamental Rights of the European Union. He stated that such criminalization “must be considered absolutely necessary” to protect the aforementioned public interests, “as less afflictive measures are not identifiable that would be equally effective in achieving the protection of the interests in question” (unofficial translation). Furthermore, he found that the current EU and Italian legal frameworks governing the exemption of humanitarian assistance from criminalization suffice to counterbalance the choice of such broad criminalization.

The second decision delivered in the hearing dealt with the Iuventa defense lawyers’ requests concerning German-language translation of “essential documents” from the prosecution’s case file. In the previous hearing (see report from 26 May 2023), Iuventa defense lawyers requested that the prosecution provide the full translation (traduzione integrale) of 446 investigative documents (audio, video, documentary, etc.), which constitute the annexes to the previously translated police summary report. They also submitted a request for a preliminary ruling by the CJEU on the question of what qualifies as so-called “essential documents” under Article 3 of the Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings. 

The judge rejected the first request by referring to his previous decisions (e.g. from 14 April 2021 and 3 October 2022). In short, he held that such documents are not among those deemed “essential” under Article 143 paragraph 3 of Italy’s Code of Criminal Procedure (CPP), which provides the option for the judge to order the translation of “other documents or even only part of them, considered essential for the defendant to understand the charges against him/her” (unofficial translation). The judge reasoned that such written translation was not necessary because the defendants had interpreters available who could provide – unlimited and free of charge – oral translation of all the material contained in the prosecution’s file and, hence, effectively exercise their defense rights. Ultimately, he held that Article 143 paragraph 3 CPP correctly transposes the provisions and rationale of the European legislation laid down in Article 3 of the Directive 2010/64/EU. Given this conclusion, he rejected the Iuventa defense’s request for a preliminary ruling by the CJEU interpreting the meaning of “essential documents” under Article 3 of the Directive 2010/64/EU. Iuventa defense lawyer Nicola Canestrini noted that “the judge missed an important opportunity to delve deeper into fundamental rights guarantees and failed to address all of the defense’s arguments and considerations.”

The next hearing is scheduled to take place at the Court of Trapani on 14 July 2023. The judge will report on the ruling of Italy’s Court of Cassation, expected on 6 July 2023, regarding the “territorial competence” (competenza territoriale) of the Court of Trapani (see report from 15 March 2023).