European Court of Justice to examine legality of the offence of facilitating unauthorised migrationJuly 25, 2023
The European Court of Justice (ECJ) will evaluate the legitimacy of the Facilitators Package and of Article 12 of the Italian Consolidated Immigration Act with regard to its compatibility with the EU Charter of Fundamental Rights. The complaint prepared by lawyer Francesca Cancellaro, which argues the illegitimacy of european and italian laws as they prioritise the defence of national borders over the fundamental rights of individuals, has finally been referred to the ECJ.
The request, which was dismissed by the judge in charge of the iuventa preliminary trial, in Trapani on 13 June, was filed again by the lawyer Francesca Cancellaro during a trial concerning facilitation of unauthorized entry in Bologna. There, the judge agreed to refer the complaint to the ECJ, including all the points raised by Cancellaro. If accepted by the ECJ as a matter of urgency, as requested by the judge of Bologna, respective proceedings could be expected already within the next 6 months.
“Our objection is that the European regulation, and consequently the Italian one that transposes it, does not include the intention to make a profit as a constitutive element of the offense and, at the same time, does not oblige Member States to exclude the responsibility of those who act out of altruistic and humanitarian reasons“, explains Francesca Cancellaro.
In the above-mentioned trial, a woman of Congolese origin faces charges of facilitating unauthorised entry into Italy under Article 12, after she, her daughter and niece entered the country by air with forged documents. The Italian constitutional court already considered disproportionate some provisions of article 12 (sent. 63/2022), effectively canceling the aggravating circumstances for the use of international transport services or forged documents.
Kathrin Schmidt, iuventa-crew defendant: “It is time the focus shifts on the rights of those arrested as suspected “smugglers” who are usually sentenced to long prison terms without consideration of any circumstances. The EU legal framework provides the perceived legitimization and the juridical opportunity for EU member states to abuse criminal law against people on the move and those in solidarity. European courts at this stage are still contributing to the ever increasing death toll in the Mediterranean. The racist and violent implementation of neo-colonial interests needs to stopp once and for all.”
This is the first time that the European court has to assess the legitimacy of EU legislation criminalising the facilitation of migration. If successful, the effects of the decision would impact on similar past and future cases in Europe. Researchers, academics, legal experts and activists have extensively documented in recent years how national legislation, especially the infamous Article 12 of the Italian Immigration act, does not respect the right to life and physical integrity of migrants and access to asylum procedures. The urgent need to evaluate these laws at the European level has been pointed out by many activists and human rights organisations, as advocated in recent reports by borderline-europe on the criminalization in Greece or in the one “From Sea to Prison” about Italy.