THE KINSA CASE

EU facilitation laws

Review of laws criminalizing facilitation in Europe & Italy

The request for a preliminary ruling in the Kinsa case is part of a historical process in which activists, civil society organisations and researchers have voiced their criticism towards the facilitation laws and made their consequences visible. The Kinsa referral focuses on certain aspects of the laws that affect the Kinsa case in its specifics and provides arguments in this sense. However, it does not reflect the totality of the criticisms. What follows is a broader overview of the most important elements of the laws and some of the criticisms that have been raised with respect to them.

The relevant EU Directive and accompanying Framework Decision on the criminalization of people  smuggling is collectively known as the ‘Facilitators Package’. It requires EU Member States to introduce legislation that punishes facilitation by ‘effective, proportionate and dissuasive sanctions’. The Facilitators Package consists of:

Although each EU member state has its own national legislation to regulate migration, national laws must be harmonised with European regulations, i.e. with the ‘Facilitators’ Package", which, among other things, obliges member states to enact criminal sanctions:

Index

  1. Criticism on the laws - from civil society organisations to EU institutions
  2. Italy’s Immigration Act - how the Directive is implemented at national level
  3. Facilitation Laws - the documents

Criticism on the laws

The EU Facilitator’s Package has been consistently criticized for not providing a clear definition of 'smuggling' or other central concepts such as 'financial gain' and 'humanitarian assistance', but rather containing only minimum indications for the constituent elements of the offense.

The Facilitators' Package does not consistently adopt two elements that do appear in international legislation on people smuggling, the UN Smuggling Protocol and the Refugee Convention. In summary, there are three important divergences:

As stated by the United Nations Office on Drugs and Crimes (UNODC), the reference to financial or other material benefit was meant to shield/exclude family members and support groups such as religious or NGOs” (groups with purely political or social motives) from punishment. The UNODC urges countries ‘to include safeguards to ensure that faith-based organizations, civil society and individuals acting without any purpose to obtain a financial or other material benefit are excluded from the application of smuggling offences.

The lack of clarity creates considerable legal ambiguity and the room for manoeuvre in the implementation of EU law in national legislation has resulted in indiscriminate and disproportionate criminalisation.

Civil society organisations

Dragnet laws criminalizing the “facilitation” of unauthorized migration expose people on the move to even greater harm. The Kinsa case is one example in a broader trend of states weaponizing law to serve anti-migration agendas. The CJEU must force a realignment of the EU framework with rights protection.
Allison West - Senior Legal Advisor @ECCHR Berlin

Multiple reports, such as "Punishing compassion. Solidarity on trial in Fortress Europe" by Amnesty International, or the yearly reports by the Platform for International Cooperation on Undocumented Migrants (PICUM), have denounced how facilitation laws have been applied to smuggled people, family members and friends helping each other; to NGOs or commercial vessels conducting search and rescue operations; to NGOs and volunteers in border areas providing, for instance, food or access to legal and medical assistance; to people who provide a shelter; to journalists and filmmakers who report on the situation in border and transit zones; to taxi and bus drivers as well as other  providing a ride; and even to mayors and priests (more about criminalization cases).

Allison West - ECCHR

Even European institutions have published reports and evaluations warning that legislation is being used to criminalise actors who support migrants.

European Commission

To address the growing evidence of criminalization of humanitarian assistance the European Comission issued in 2020 a “Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence” were they stated that:

European Parliament

The European Parliament has published two relevant reports: "Fit for purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants" in 2016 and an update to the same report in 2018. These reports compare EU legislation with the international legal framework and explore the effects, both direct and indirect, of legislation and policy practice in selected Member States. Their analysis finds that inconsistencies, divergences and significant grey areas often deter humanitarian actors from providing assistance. They call for a review of the legislative framework, greater legal certainty and better data collection on the effects of legislation.


Italian laws - how the EU Facilitators Package is implemented at the national level

Italy’s Consolidated Act on Immigration (Legislative decree 286/1998) contains provisions that constitute the implementation of the EU Facilitators Package. Article 12 of Italy’s Consolidated Act on Immigration, which punishes conducts aimed at facilitating the unauthorized entry, stay or transit of a foreign national in the territory of the state, is the provision which has been most often used to criminalize people on the move and rescue NGOs. Article 12 establishes several key incriminating provisions:

For the crime to be committed, Article 12 requires the intent to carry out the conduct described in the offense, irrespective of the motive and of whether the aim is achieved. The financial or material profiting from the facilitation of irregular entry is an aggravating circumstance, rather than a constituting element of the crime.
The penalty for the crime of facilitating entry under paragraph 1 is imprisonment of 1 to 5 years, and a fine of 15,000 euros for each transported person. Paragraph 3, provides for a considerable increase in the penalty: imprisonment ranging from 5 to 15 years, and a fine of 15,000 euros for each transported foreign citizen, in a variety of different circumstances:

Defenses such as ‘acting to fulfill a duty’ and ‘acting in a state of necessity to save a person from the actual danger of grave harm’ can exempt an individual from sanctioning. This is the so-called ‘humanitarian exemption’ (Article 12, paragraph 2). However, the exemption is applicable only when ‘humanitarian rescue and assistance is offered in favor of foreign citizens in need granted that the action is carried out inside of Italian territory’, meaning it is not applicable when the actions under discussion include a border crossing.

Relevant documents - Facilitation Laws