Published by Iuventa Crew | 25 / Jul / 2023

The Court of Justice of the European Union will assess the legitimacy of the crime of aiding and abetting irregular immigration

We publish the communiqué, translated into Italian, of Iuventa Crew in the hope that the European Union will consider the crime of aiding and abetting irregular immigration illegitimate.

The Court of Justice of the European Union (CJEU) is called upon to establish the compatibility of the Facilitators' Package and Article 12 of the Consolidated Text on Immigration with the EU Charter of Fundamental Rights. The request for a preliminary ruling made by the lawyer Francesca Cancellaro, who argued that the European and national regulations are illegitimate because they privilege the defence of national borders over the fundamental rights of individuals, was finally referred to the CJEU.

The petition, which had been rejected by the judge at the preliminary hearing 'Iuventa' in Trapani on 13 June, was filed again by lawyer Francesca Cancellaro in a case of aiding and abetting irregular immigration in Bologna. There, the judge agreed to refer the request to the CJEU, including all the points raised by Cancellaro. If the CJEU grants her request for an accelerated procedure, the related proceedings could be finalised as early as in the next six months.

Our objection is that the European regulation, as well as its transposition into Italian law, does not provide for the purpose of profit as a constituent element of the offence and, at the same time, does not oblige Member States to exclude the liability of those who act for altruistic and humanitarian reasons

Francesca Cancellaro

In the above-mentioned trial, a woman of Congolese origin is charged with aiding and abetting unauthorised entry into Italy under Article 12 TUI after she, her daughter and granddaughter entered Italy by air with false documents. The Italian Constitutional Court had already deemed some provisions of Article 12 disproportionate (sentence 63/2022), striking out the aggravating circumstances of using international transport services and false documents.

It is time to shift the focus to the rights of those who are arrested as suspected 'smugglers and/or scafistə' and who are usually sentenced to long prison terms without any other factual circumstances being considered. The EU legal framework gives member states an apparent legitimacy and legal opportunity to abuse criminal law against people on the move and those in solidarity. European courts at this stage are still contributing to the growing number of deaths in the Mediterranean. The racist and violent implementation of neo-colonial interests must stop once and for all

Kathrin Schmidt, defendant in Iuventa

This is the first time the European Court has been asked to assess the validity of EU laws on aiding and abetting immigration in these terms. If successful, the effects of the decision would affect similar past and future cases in Europe.

Researchersə, academicsə, legal experts and activistsə have amply documented in recent years how national legislation, in particular the notorious Article 12 of the Italian immigration law, fails to respect migrants' right to life and physical integrity and access to asylum procedures.

The urgent need to evaluate these laws at the European level has been underlined by many human rights activists and organisations, as argued in borderline-europe's recent report on criminalisation in Greece or ARCI Porco Rosso's 'From the sea to prison' report on the situation in Italy.

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