A single casehas triggered one of the most far-reaching challenges to European (anti)migration laws to date.
The Kinsa case (formerly Kinshasa case) centers on the trial of O.B., a Congolese woman, who arrived at Bologna airport in August 2019 accompanied by her 8-year-old daughter and 13-year-old niece, using false passports to travel to Italy to seek protection. O.B. faces charges of facilitating the unauthorized immigration of the two girls, facing up to five years imprisonment.
O.B.'s lawyer, Francesca Cancellaro, identified a violation of a wide range of her client's fundamental rights. Hence, in the course of legal proceedings in Bologna, she submitted a referall request for a preliminary ruling by the Court of Justice of the European Union (CJEU) to examine the EU legal framework mandating member states to criminalize the facilitation of unauthorized immigration (the ‘Facilitators Package’), assessing its compatibility with the EU Charter of Fundamental Rights (CFR). The presiding judge at the Court of Bologna accepted the submission and referred the matter to the CJEU. The Grand Chamber of the CJEU will hold a hearing on 18 June 2024 (C-460/23).
The outcome could have far-reaching implications for both EU and national legal frameworks. It could lead to a reassessment of national laws across the EU and impact hundreds of ongoing ‘facilitation’ cases as well as sentences in past cases.
This is a historic moment, in which a juridical body of the European Union has the opportunity to mend a contradiction that has gone on for far too long, a contradiction that – as we have pointed out for years, alongside a growing number of politicians and civil society organizations – has disrupted, and often even destroyed, the lives of thousands of people.
Decriminalise facilitation!
In recent years, Europe has seen a discernible trend in the overcriminalisation of any behaviour seen to ‘facilitate’ unauthorised entry, transit or stay in EU Member State territory. This trend is not only evident in court cases against NGOs carrying out search and rescue operations in the Mediterranean and against volunteers of all kinds who help migrants at EU borders. The horrendously high number of people imprisoned for helping themselves and others to reach the EU via illegalised escape routes are also an alarming sign of this development.
The urgent need to evaluate the legitimacy of the EU legal framework criminalizing the ‘facilitation’ of unauthorized immigration, the so-called ‘Facilitators Package’, and its related implementation at the national level in EU Member States has been pointed out by many lawyers, activists and human rights organizations.
The landmark review at the CJEU - triggered by the 'Kinsa case' - comes more than two decades after the enactment of the EU Facilitators Package in 2002, which has resulted in the prosecution of thousands for 'facilitation'. Although these laws were purportedly designed to combat ‘smuggling’ by 'criminal networks' and ensure the safety of individuals in transit, they have, in practice, led to the prosecution of migrants themselves, who constitute the majority of those prosecuted on ‘facilitation’ charges, as well as those most concerned with their safety, namely, family members and activists assisting out of solidarity.
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, using false passports to travel to Italy to seek protection. She was arrested and charged with the facilitation of the unauthorized immigration of the two girls. Initially, she 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 challenged by her lawyer before the Italian Constitutional Court, which annulled them in 2022. Nevertheless, she remains on trial for facilitating the unauthorized entry of the two girls, 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 of EU legislation on facilitating unauthorized immigration and the related Italian law implementing 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 and humanitarian purposes.
What is the referral to the CJEU about?
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On 17 July 2023, the Court of Bologna requested a preliminary ruling from 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 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.
Who are the parties involved in the case?
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The case involves the Court of Bologna, which has referred two questions, one concerning the Facilitators Package, the other concerning the Italian legislation implementing it, Article 12 of Italy’s Consolidated Law on Immigration, to the Court of Justice of the European Union (CJEU) for a preliminary ruling. Relevant stakeholders include the Italian government, the European Union (the Commission and the Council), and potentially all EU Member States.
Why is this case being brought before the CJEU?
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This preliminary ruling procedure aims to challenge both EU legislation and its implementation at the national level in Italy under the lens of the EU Charter of Fundamental Rights. The focus is on the validity and interpretation of the EU and national laws, not on a direct legal dispute between parties.
The law under question
What is the specific Italian Law being challenged?
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Article 12 of Italian Legislative Decree No. 286 (Consolidated Act on Immigration): 1: Criminalization of Facilitation: This article criminalizes the facilitation of unauthorized entry of foreign nationals into Italy, irrespective of profit motives, including humanitarian aid. 2: Non-Profit Clause: Applies to all acts of facilitation of irregular entry performed for humanitarian proposes in favor of foreign nationals already in Italy (the result is that it is impossible to apply it to illegal entry). 3: Penalties: Imposes severe penalties (imprisonment and fines) for facilitation activities.
What is the specific EU law being challenged?
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1: Directive 2002/90/EC: Defines facilitation of unauthorized entry, transit, and residence, mandating member states to sanction such activities. 2: Framework Decision 2002/946/JHA: Strengthens the penal framework to prevent facilitation, requiring member states to impose criminal penalties and establishing minimum penalties. Together, the Directive and Framework Decision are known as the ‘Facilitators Package’.
What are the main arguments against this law?
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The laws are criticized on several grounds: 1: Proportionality (Art. 52.1 of the EU Charter of Fundamental Rights): They are alleged to violate the principle of proportionality by imposing mandatory criminal penalties irrespective of motive, namely without requiring a profit motive as a constituent element of the crime and, at the same time, not mandating exclusions of actions taken for altruistic and humanitarian purposes. 2: Fundamental Rights: They may infringe, in a disproportionate manner, fundamental rights, including rights to personal liberty (Article 6), property (Article 17), life (Article 2), physical integrity (Article 3), asylum (Article 18), and family life (Article 7), as outlined in the EU Charter of Fundamental Rights.
The European Court of Justice of the European Union (CJEU)
What is the CJEU?
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The CJEU is the EU's highest judicial authority, ensuring consistent interpretation and application of EU law across Member States. It consists of the Court of Justice and the General Court.
·What are the main arguments against the EU Facilitators Package?
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The laws comprising the EU Facilitators Package are challenged on the grounds of: 1. Proportionality: They potentially violate the principle of proportionality by imposing mandatory criminal penalties irrespective of motive, namely without requiring a profit motive as a constituent element of the crime and, at the same time, not mandating the exclusion from criminal liability of actions taken for altruistic and humanitarian purposes. 2. Fundamental Rights: They may infringe on fundamental rights, including rights to personal liberty (Article 6), property (Article 17), life (Article 2), physical integrity (Article 3), asylum (Article 18), and family life (Article 7) as outlined in the EU Charter of Fundamental Rights.
How does the CJEU function?
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The CJEU handles cases through various procedures to maintain uniform application of EU law, including preliminary rulings, infringement proceedings, annulments, failure to act, and damage actions. The Grand Chamber of the Court of Justice will hold a hearing in the Kinsa case, following a request for a preliminary ruling submitted by the Court of Bologna.
Possible Outcomes of the Case
What are the potential outcomes of this case?
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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 the laws 3: Interpret the laws: Validate the laws with required interpretation for compliance.
Impact on EU and National Legal Frameworks
How could the CJEU's decision impact EU law?
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A ruling invalidating all or parts of the 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.
What effects might the decision have on national laws of EU member states?
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National laws must align with the CJEU's rulings. If the CJEU deems certain aspects of the EU legal framework as 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
· Retroactive Impact: How might the ruling affect individuals who have been sentenced under the ‘facilitation’ laws in question?
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Possible reassessment and reconsideration of sentences for individuals previously convicted under the challenged laws.
· Ongoing Legal Proceedings: What could this mean for individuals whose cases are still pending and involve the ‘facilitation’ laws in question?
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1: Pausing Proceedings: Requests could be made to pause cases during the CJEU referral process, with the possibility to motivate a request for release. 2: Compensation Claims: Potential claims for damages could be made for wrongful imprisonment if the laws are invalidated.
Timeframe
What are the upcoming steps?
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The hearing took place on 18 June 2024 in front of the Grand Chamber of the CJEU, where all parties involved presented their arguments. The Advocate General of the CJEU will deliver his opinion on the 5th of November 2024. The final ruling by the CJEU is expected for the end of 2024.
