A Congolese mother seeks asylum in Italy, together with her two children – and is accused of ‘facilitation‘, facing up to five years in prison. Her lawyer Francesca Cancellaro has achieved a submission to the Court of Justice of the European Union (CJEU): for the first time, the highly controversial ‘anti-facilitation’ laws in the EU are being put to the test. PRO ASYL provides financial support for the proceedings.
Francesca Cancellaro, you are representing a Congolese woman who arrived at Bologna airport with two children in 2019, applied for asylum and was then accused of ‘facilitation’. The case has since become known as the ‘Kinsa case’. What exactly happened?
In August 2019, my client travelled to Italy with her eight-year-old daughter and thirteen-year-old niece to apply for asylum. Upon arrival at Bologna airport, she was separated from the children and charged with ‘facilitating and abetting unauthorised entry’. She was imprisoned for a few days and remained separated from her children for a long time afterwards. She was originally facing 15 years in prison for using false documents and for using an international means of transport, in this case an airplane. However, the Italian Constitutional Court ensured that at least these charges were dropped. She now faces a prison sentence of up to five years.
How can it be that a woman who wants to bring herself and her children to safety is charged with facilitation?
The problem lies in current European legislation, which allows for over-criminalisation. Specifically, it is about the EU legal framework that criminalises ‘facilitation of unauthorised entry’ – the so-called EU ‘Facilitators Package’. Italian legislation, that is in line with the European one considers smuggling every act performed to help to enter the border illegally.
What is the problem with this legislation?
The so-called EU Facilitators Package makes any assistance in crossing borders a criminal offence, even if it is provided for humanitarian reasons and on a not-for-profit basis. The definition of ‘facilitation of unauthorised entry’ is much too broad, which is very dangerous in criminal law. It can also include family members and friends of refugees or humanitarian activities such as search and rescue operations in the Mediterranean.
My client's case clearly shows that at least one exception would be needed for people acting for humanitarian reasons. I see the criminalisation as a violation of her fundamental rights, including the right to life, physical integrity, the right to private life and family, and the right to seek asylum. That is why I have requested a preliminary ruling from the CJEU.
With your proceedings before the CJEU, you are challenging the EU legal framework on ‘facilitation of unauthorised entry’ for the first time. Some are calling this a historic moment. What exactly do you want the CJEU to examine?
The CJEU must examine whether the Facilitation Package is valid and how it is to be interpreted. Specifically, the Court is asked to assess the compatibility of the EU Facilitation Package and its Italian implementation with the EU Charter of Fundamental Rights. I hope that the CJEU will rule that the Facilitation of Unlawful Entry laws are disproportionate and that this will lead to an adjustment of EU regulations. The ruling could have far-reaching implications for the EU legal framework, national legislation and individual proceedings in various EU member states. I expect a ruling this spring.
The Kinsa case is unfortunately not an isolated case, but is exemplary of the criminalisation of numerous people, particularly at the EU's external borders. Are there any figures on how many people have been prosecuted under this EU directive?
Unfortunately, there are no official figures. Both people who migrate or flee themselves and people who act in solidarity are criminalised. The PICUM report for 2023 shows that most people have been criminalised at the EU's external borders, mainly in Italy and Greece, followed by Poland, Malta, Latvia and Cyprus. Acts of solidarity often involve search and rescue operations or the provision of shelter, water, food or clothing. When people on the move are criminalised, it is usually on the charge of allegedly driving a boat or car to cross a border without permission.
According to a study by borderline-europe, as of February 2023, more than 2000 people had been imprisoned for ‘smuggling’ in Greece alone. This makes them the second largest group of all Greek prison inmates...
Yes, we are talking about a truly comprehensive phenomenon here! I can speak more for the Italian context: according to estimates by the association Arci Porco Rosso and borderline-europe, more than 3200 migrants have been arrested for facilitating and abetting illegal immigration after arriving on the Italian coast in the last ten years. Often they are accused of having steered a boat. But the actual numbers could be even higher. It is difficult to have an overview of all the proceedings in Europe.
What impact does criminalisation have on the lives of those affected, on those seeking protection themselves, but also on people providing humanitarian aid or those involved in search and rescue operations?
This criminalisation has far-reaching effects, even if no conviction is ultimately handed down. In particular those seeking protection are often held in preventive detention for years during criminal proceedings and are separated from their families – both of which have also happened to my client.
And what about when people who act in solidarity are criminalised?
Of course, activists, from all over Europe, also suffer greatly from the consequences of criminalisation. They often have to endure long and stressful trials. In Italy, I represented members of the Iuventa rescue ship who had been indicted. After seven years of legal battles, we achieved a major victory in April 2024 when the charges were dropped. Nevertheless, such long proceedings and the associated pressure are already a significant punishment, especially for young people whose future is still open. However, if migrants are charged, this more often leads to a conviction, which is the worst possible scenario because the sentences are very high.
And there are also long-term effects of criminalisation...
Exactly, such a form of criminalisation creates fear and changes the behaviour of civil society in the long term. People become less willing to act in solidarity because they fear the risks – a phenomenon known as the ‘chilling effect’. This effect has been recognised by the highest courts in the past.
Since 2023, the EU has been working on a new directive to redefine the criminal liability of those who facilitate illegal entry. The new rules are intended to replace the 2002 EU Facilitation Package. How does the Kinsa case relate to the ongoing reform process at the EU level?
We are dealing with several developments that occur at the same time. The judgment in the Kinsa case could have a significant impact on the reform negotiations. At the same time, a dual effect is already occurring: the pending case has advanced the reform process by highlighting the criticism of the existing legislation, while the Court is aware of the ongoing reform process and could be indirectly influenced by it. I expect that my litigation in the Kinsa case will lead to at least small improvements in the laws and its interpretation.
In November 2024, the Advocate General presented his opinion in the Kinsa case. How do you assess it?
To be honest, I am not satisfied with the Advocate General's opinion overall. However, there are also some positive aspects. One step forward is that he clarifies that the directive, as it stands, aims to criminalise all facilitation of unauthorised entry, even when it is done for reasons of solidarity. In doing so, he essentially confirms what legal scholars and civil society organisations have been saying for a long time: there is a fundamental problem with the EU directive. He also emphasises national courts must have the option of decriminalising humanitarian acts in order to respect the principle of proportionality stated in the European charter of fundamental rights. This could mean hope for many criminalisation cases across Europe.
What aspects of the opinion do you see critically?
What I am very critical of is that the Advocate General considers the directive to be valid as it stands. He argues that the EU institutions are not obliged to clearly define what constitutes facilitation of unauthorised entry, but that this could be left to the respective member states. In practice, this would entail the risk of different applications in the member states. This would have a significant impact on people who want to act for humanitarian reasons, as they would have no clear assurance that they would not risk criminal proceedings for such acts of solidarity. This legal uncertainty would have far-reaching implications even before criminal proceedings arise.
The Advocate General's opinion is not binding on the Court of Justice of the European Union.
The court has a lot of leeway and I hope that it will go beyond the opinion of the Advocate General in its judgment. At the very least, exceptions are needed for actions taken for altruistic or humanitarian reasons.
Back to your client in the Kinsa case: could she have avoided the charge of ‘facilitating unauthorised entry’?
Today, it is almost impossible to seek protection in the EU without entering the country illegally. There are hardly any safe ways to apply for asylum. My client managed to protect her children by taking them to safety on a plane, instead of putting their lives at risk by crossing the Mediterranean by boat. She was lucky to have that option – most people seeking protection do not have that. It is completely incomprehensible to me that she is now being criminalised for it.
Francesca Cancellaro works as a lawyer in Bologna. During her many years of practice, she has specialised in the defence of fundamental and human rights. PRO ASYL supports her work in the Kinsa case through the PRO ASYL legal aid fund. The campaign of the Kinsa case provides information about the ongoing proceedings and draws attention to the possibility of far-reaching consequences for EU law and national legislation.