THE KINSA CASE

'C-460/23, Kinsa'

The case and the CJEU proceedings

In August 2019, O.B., a woman of Congolese origin, arrived at Bologna airport with her 8-year-old daughter and 13-year-old niece. Fleeing threats of violence from her ex-partner in the Democratic Republic of Congo, they made their way from her home town to Casablanca (Morocco) to Bologna (Italy) using false passports to reach Italy and seek protection. Upon arrival, she was arrested and charged with ‘facilitating’ the unauthorized immigration of the two girls. The children were separated from her and placed in a home for minors.

Initially, O.B. faced up to 15 years in prison, as she was also charged with the aggravating circumstances of forging documents and using international transport services. The application of these aggravating circumstances was successfully challenged by O.B.’s lawyer, Francesca Cancellaro, before the Italian Constitutional Court, which annulled them in 2022. Nevertheless, O.B. remains on trial for facilitating unauthorized entry, now facing up to 5 years in prison.

On May 29, 2023, O.B.'s lawyer requested a preliminary ruling by the CJEU to assess the compatibility with the EU Charter of Fundamental Rights of the EU legislation criminalizing the facilitation of unauthorized immigration, the so-called ‘Facilitators Package’, and the related Italian implementation of it, Article 12 of the Consolidated Act on Immigration. At its center, the request objected to the fact that these laws do not require a profit motive as a constituent element of the crime and, at the same time, do not mandate the exclusion from criminal liability of actions taken for altruistic or humanitarian purposes. The Court of Bologna accepted the request and referred the matter to the CJEU on July 17, 2023.

The case of O.B. is an individual case that sheds light on the broader problems posed by the systematic criminalisation of unauthorised border crossings in Europe.

Index

  1. From Casablanca to Bologna - the border crossing, the search for safety and the consequences
  2. From Bologna to Luxemburg - the referral and the preliminary ruling procedure at the CJEU
  3. The CJEU - and possible outcomes of the proceedings
  4. Preliminary ruling procedure - the documents

FROM CASABLANCA TO BOLOGNA - the border crossing, the search for safety and the consequences

27 August 2019: O.B., of Congolese  origin, presented  herself  at  the  air  border of  Bologna  on  arrival  from  a  flight  from  Casablanca.  She showed  a  false  Senegalese passport for herself, along with false passports for the two  girls accompanying her,  aged  8  and  13 years  old.  O.B.  thus  carried  out  acts  aimed  at  procuring  the unauthorized  entry  of  the  two  minors  into  Italian  territory  and  was  charged  with the offense of ‘facilitating the unauthorized entry of foreign nationals’ within the meaning of Article12 of Italian Legislative Decree No. 286 (Italy’s Consolidated Act on Immigration).
 
28 August 2019: O.B. was arrested, while the two girls, by order of the Tribunale per i minorenni  (Juvenile  Court,  Italy), were placed in a dedicated reception facility.
 
29 August 2019: O.B. was heard  by  the  Giudice  per  le  Indagini  Preliminari (judge  responsible  for  preliminary  investigations)  of  the  Tribunale  di  Bologna (District  Court of  Bologna),  to  whom  she  stated  that  she  had  fled  the  Democratic Republic of the Congo to escape death threats made against her and her family by  her  ex-partner.  She  also  stated  that  the minors  traveling  with  her  were  her  daughter  and  her  niece (the daughter  of  her deceased  sister,  who  had  been  entrusted  to  her), respectively,  and  that  she  had brought  them  with  her  because  she  feared  for  their  physical integrity. The  judge confirmed O.B.’s arrest, but did not order her to remain in prison.
 
9 October 2019: O.B. lodged an application for international protection. That procedure has not yet been completed. Subsequently, the Juvenile Court in Italy, confirmed that one of the two minors was the daughter of the accused and that, in all likelihood, the other girl was her niece

10 March 2022: Initially, O.B. faced up to 15 years in prison, as she was also charged with the aggravating circumstances of forging documents and using international transport services. These aggravating circumstances were successfully challenged by her lawyer before the Italian Constitutional Court. The later issued Decision No. 63 declaring the unconstitutionality of article 12, paragraph 3(d) of Legislative Decree No. 286 of July 25, 1998, containing the Consolidated Text concerning Immigration and the Condition of Foreigners (L.D. No. 286), which had established the aggravating circumstance for the crime of using forged passports to enter Italy. O.B. now faces up to 5 years in prison. 

29 May 2023:  O.B.'s lawyer requested a preliminary ruling by the CJEU to assess the compatibility of the EU Facilitators Package and the Italian law that implements it with the  fundamental rights of the people concerned, objecting that these laws  do not require a profit motive as a constituent element of the crime and, at the same time, do not mandate the exclusion from criminal liability of actions taken for altruistic or humanitarian purposes. 

FROM BOLOGNA TO LUXEMBOURG - the constitutional complaint and the preliminary ruling procedure

17 July 2023: the Court of Bologna requested a preliminary ruling at the CJEU regarding the validity and interpretation of the EU Facilitators Package, as well as the Italian law implementing it. The request asked whether these laws are in conflict with the EU Charter of Fundamental Rights, both with respect to the fundamental rights of the alleged 'facilitators' (e.g. their right to personal liberty, right to family, and right to property) and to the fundamental rights of those whose entry, transit or stay is being ‘facilitated’, (e.g. their right to life, right to physical integrity,right to access to asylum procedures, and right to family life. Specifically, it examines whether these laws disproportionately criminalize the facilitation of unauthorized entry of foreign nationals by mandating severe penalties irrespective of motive, without any mandatory exception for actions taken for altruistic or humanitarian motives. After the written phase of the proceedings took place, with written submissions by EU institutions, Member States and O.B.’s defense counsel, the CJEU assigned the case to the Grand Chamber and set the date of 18 June 2024 for a hearing. 

The relevant stakeholders include the Italian government, the European Union (the Commission and the Council), and potentially other member states with similar legislation criminalizing ‘facilitation’.
 
This CJEU’s preliminary ruling will address the compatibility of both the EU Facilitators Package and the law implementing it at the national level in Italy with the EU Charter of Fundamental Rights. The focus will be on the validity and interpretation on the EU and national law, not on a direct legal dispute between parties.

Bologna’s request refers to the following two laws

EU Facilitators’ Package

The EU Facilitators’ Package obligates EU Member States to introduce legislation that punishes facilitation. According to Article 1 (Directive 2002/90/EC), each Member State shall adopt „appropriate sanctions on any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens”.

The CJEU referral questions the validity of the two main pillars of the Facilitators Package:

Concretely, the request alleges that the Facilitators' Package potentially violates the principle of proportionality, as the fundamental rights of people on the move and those supporting them are subjected to a completely disproportionate criminal penalties.

The restriction of those rights is disproportionate in the strict sense, because it is based on the absolute prevalence of border protection, without carrying out a reasonable balancing of the interests at stake.

As a consequence, the Facilitators’ Package infringes, in a disproportionate manner, upon fundamental rights:

These infringements impact several fundamental rights outlined in the EU Charter of Fundamental Rights, including rights to:

Article 12 of the Italian Consolidated Act on Immigration 

The legal provisions of Article 12, which introduce a ‘simple form’ and an ‘aggravated form’ of the offense of ‘facilitating’ entry, are neither equal nor appropriate or proportionate. They violate the Italian Constitution and the EU Charter of Fundamental Rights because they:

Moreover such disproportionate punishment clashes with the principle of the re-education of every convicted person because such punishment would be deemed unjust by her/him and thus any re-educational path would be frustrated from the outset. #Both protected by the Italian Constitution and by the EU Charter of Fundamental Rights.

Another article of the very same law, Article 10 of the Consolidated Immigration Act, punishes a foreign citizen who crosses the borders without authorisation. Although both offences are very similar and connected, their punishment is completely different:

The justification of the different punishment between Article12 and Article10 is conceived in the ‘fight against the smuggling of migrants’, but the definition of the offense is so vague that it can be used to prosecute anyone who wants to support people on the move (e.g. also those motivated by family ties or solidarity).

The problem with the humanitarian exception clause! The Italian legal system provides exceptions or justifying reasons. According to these, even if a person has committed a certain offense, there are several circumstances that can justify the offense so that the person cannot be found guilty. Article 12 contains such an ‘exception for humanitarian measures’. However, some argue that this so-called ‘humanitarian exception clause’ is unconstitutional due to its inappropriate scope of application, as it is ONLY applicable when the measure is taken on Italian territory against foreigners already residing in Italy. It is therefore applicable when it comes to facilitating residence in Italy or unauthorized entry from Italy to another country, but not when it comes to facilitating irregular entry into Italy, although the three cases are certainly comparable.

The CJEU and the possible outcomes of the proceedings

The CJEU handles cases through various procedures to maintain uniform EU law application, including preliminary rulings, infringement proceedings, annulments, failure to act, and damage actions. In the 'Kinsa' case, with respect to the EU and Italian laws, the CJEU could:

  1. Validate the laws: Uphold the laws as compliant with the EU Charter of Fundamental Rights.
  2. Declare invalidity of the laws: Invalidate specific provisions. 
  3. Interpret the laws: Validate the laws with required interpretation for compliance.

The impact on EU and National Legal Frameworks
A ruling invalidating all or parts of the EU law would necessitate action from the EU Commission to ensure compliance with fundamental rights. Given the ongoing reform of the EU Facilitators Package, such a ruling could significantly influence the discussions surrounding the reform.

The impact on national laws of EU Member States
 National laws must align with the CJEU's rulings. If the CJEU deems certain aspects of the EU legal framework to be unlawful, those elements, if mirrored in national legislation, would also be considered unlawful. This could prompt legislative changes to ensure compliance and, for example, prevent the criminalization of humanitarian aid.

Impact on individual cases:
A ruling could affect individuals who have been sentenced under the law in question, potentially leading to the reassessment and reconsideration of sentences for those previously convicted under the challenged laws.
For individuals whose cases are still pending, requests could be made to suspend the proceedings during the CJEU referral process, with the possibility to motivate a request for release. Potential claims for damages could be made for wrongful imprisonment if the laws are invalidated.

Relevant documents about the preliminary ruling proceedure