The main aims of the article are to argue that the Italian anti-smuggling law, deemed to transpose the provisions on international and European law, fails in doing so and that the failure in the compliance of the national law with the international criteria has consequences on two levels: on the one hand it enables the manipulation and the over-extensive application of the provision for the prosecution of humanitarian actors and for the pursuit of the broader aim to contrast irregular migration as a whole. On the other hand, it permits to the government to “bypass” international obligations in the field of protections provision to trafficking victims.

The provision in national law that criminalises the facilitation of illegal border crossing towards the Italian coasts is article 12 of the Legislative Decree 286/1998, commonly referred to as the  Consolidated Text on Migration: a piece of legislation, added to the national criminal code that deals with the (criminal law) management of the issues related irregular migration to the country. The provision, titled “Provisions against Illegal Immigration”,[1] is incredibly wordy and intricate: it contains nine paragraphs and a total of twenty-five subsections. This wordiness suggests, on the one hand, the willingness of the legislator to include in its scope a very wide range of situations involving the irregular crossing of borders, while, on the other, an “anxiety-led” approach[2] deriving from the necessity to comply with the EU law and international law provisions in the area. The disposition criminalises various forms of smuggling, including cross-border smuggling and smuggling within the territory. For the purpose of the article the focus will be only on the facilitation of illegal entry in the territory in its simple and aggravated form: in other words, the focus will be on paragraphs (1) and (3), specifically (3ter) of the aforementioned article 12. The Italian codification of trafficking in human beings, article 601 of the Criminal Code, will also be subject of study, for the purpose of showing the overlaps between the contents of article 12 (3ter) and 601.

From an historical perspective, the simple form of smuggling was firstly ratified in 1998, to ensure compliance of the national legal framework with the EU Schengen Borders Code, which, in response to the elimination of the internal borders of the EU, aimed at a strengthening of the external ones.[3] In fact, it is on the basis of the EU law definition of the facilitation of illegal entry, included in Directive 2002/90/EC that the offence in Italian law is shaped.

More specifically, the basic form of smuggling is codified in art 12 (1) of the Consolidated Text on Migration and identifies the offence of facilitation of illegal entry into the country as “the promotion, management, organisation, support, or conduct of the transportation of a third-country national in the territory of the State, of which the person is not a citizen nor a permanent resident, against the provisions of the Testo Unico”.[4]

In attempting to identify in the Italian definition the elements of action and purpose (or for the criminal lawyers, the actus reus and mens rea essential elements of the offence), the reader notices immediately, that the Italian (and EU) codification lacks the purpose of financial or other material gain as a constitutive element of the crime.

It is in this context that the incompliance with international law becomes evident. In fact, the Protocol against the Smuggling of Migrants by Land, Sea and Air of the UN Transnational Organised Crime Convention, defines in its article 3 (a), the offence of human smuggling as the "[p]rocurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident."[5] 

According to this definition the constitutive elements of the crime of migrant smuggling are two: the action, which is embodied in the procurement of the illegal entry, and the purpose, the financial or other material benefit to be gained by the smuggler. By criminalising smuggling insofar it is aimed at obtaining a material benefit, the intention of the UN legislator was to exclude the criminal liability of the family members and humanitarian actors, and, more generally, those who assist the illegal crossing of borders for non-lucrative reasons.[6] The inclusion of the financial gain element and the consequent exclusion of liability of the humanitarian actors are indicative of  an intention of the UN legislator to defend the signatory State’s interests by protecting State’s migration policy, but also to protect the rights of the migrants and of those assisting them for non-lucrative reasons.[7]

The exclusion of the purpose element from the formulation of the offence was justified by the EU legislator in 2017 in the context of the EU Refit evaluation,[8] aimed at an assessment of the adequacy of the EU Facilitators Package: the reason for the exclusion of the financial gain element in the provision is related to the cash-intensive nature of the transactions revolving around the crime and the consequent difficulty in proving their occurrence.[9] The argument brought up by the Commission is indicative of the actual intention behind the drafting of the REFIT, which rather than being aimed at a critical examination of the EU criminal law framework on migrant smuggling, is focused on the justification of choices on the prosecutorial efficiency level.

The same logic is reflected in the codification at the Italian level, which includes the financial gain element only as an aggravating circumstance in paragraph 3ter (b)[10], rather than constitutive element of the crime. In this sense the smuggling of migrants as it is codified in the Smuggling Protocol (i.e. including both the action and the purpose elements of the crime) is downgraded to an aggravating circumstance of the Italian facilitation of illegal entry, for which completion the commission of the action is sufficient.[11] Although the consequences in terms of procedural law of the lowering of the direct and indirect profit purpose of the smuggling to aggravating circumstance fall out of the scope of the article, those on the substantial law level create result in an expansion of the scope of the provision to virtually anyone assisting in any way the illegal crossing of borders from the outside to the inside of the Italian territory, without distinction of the intentions of the facilitator. Followingly, the activities of Search and Rescue carried out by the NGOs operating in the Mediterranean Sea, although operating under the obligation to rescue people in danger under international law[12], turn out to fall within the scope of art 12 of the Consolidated Text on Migration. The codification of smuggling Italian (and European) legal framework not only fails in transposing the contents of the UN smuggling protocol, resulting in incompliance with international law, but also raises a problem of incompatibility of criminal law with the International Law of the Sea.[13]

For what regards the second aim of the article, the legislative overlap between the provisions criminalising human smuggling and the one criminalising human trafficking, it is necessary to introduce the provision criminalising trafficking in the Italian legal framework: article 601 of the Italian Criminal Code. More specifically, the article punishes with  a prison sentence from 8 to 20 years “[w]hoever carries out trafficking in persons who are in the conditions referred to in article 600,[14] that is, with a view to perpetrating the crimes referred to in the first paragraph of said article, or whoever leads any of the aforesaid persons through deceit, or obliges such person by making use of violence, threats, or abuse of power, by taking advantage of a situation of physical or psychic inferiority, and poverty; or by promising money or making payments or granting other kinds of benefits to those who are responsible for the person in question, to enter the national territory, stay, leave it, or migrate to said territory.”[15] For what regards the compliance with international law, the contents of article 601 reflect the elements of the crime as defined in article 3 of the UN Trafficking Protocol: the action, the means and the purpose.[16] The trafficking provision is also less problematic in terms of compatibility with refugee law and asylum law as it recognises the vulnerability of the passive subject of the criminalised action.

Nevertheless, the Italian case is particularly interesting because the elements of the crime included in article 601, are also to be found in one of the subsections criminalising smuggling in its aggravated form. More specifically, article 12 (3ter) (a) increases the sanctions for the facilitation of illegal entry if carried out “with the aim to recruit persons to destine to prostitution or however sexual or labour exploitation, or concern the entry of minors for favouring their exploitation in illegal activities.”[17]

Although the contents of article 12, paragraph (3ter) are only aggravating circumstances[18] to the simple form for smuggling (article 12(1)), the contents of paragraph 3ter (a) read in combination with article 12 (1), include all the elements of trafficking as codified in article 601 of the criminal code and, consequently, of the UN Trafficking Protocol. More specifically, a complete reading of article 12 (3 ter) (a) would criminalise the commission of acts aimed at obtaining the illegal entry of persons to destine into prostitution or other forms of exploitation. The action and purpose elements, which are the essential elements of the crime, are the same as the ones necessary for the commission of the trafficking offence. This legislative overlap results in the possibility for the Italian legislator to overcome international obligations in terms of recognition of and provision of protection of victims of trafficking. As a matter of fact, in the archives of the Court of Cassation in the recent years, it is not uncommon to find jurisprudential references, which include a combination of the subsections of article 12 that recall trafficking situations, without actually codifying the case under the trafficking provision. Some examples of 2018 include “participation in the activities of an organised criminal group for the exploitation of irregular migration”,[19] “facilitation of illegal entry aggravated by the purpose of sexual and labour exploitation”,[20] or “participation in the activities of an organised criminal group for the purpose of facilitation of illegal entry, aimed at trafficking in human beings and sexual exploitation of Nigerian female citizens”.[21]

From the international law perspective, the States are free to decide on the criminal law status of the smuggled migrant as victim, offender or material object of the crime and article 12 of the Consolidated Text on Migration does not specify the nature of the status of the smuggled migrant. However, the provision has to be read in conjunction with article 10 of the Consolidated Text on Migration, criminalising anyone who enters the State irregularly. It logically follows that the smuggled migrants end up being prosecuted, fined or punished for the infringement of national borders. In other words, the smuggled migrant in the Italian legal framework is considered and treated as an offender. Consequently, it is possible to deduce that, if the legislator applies the aggravated from of smuggling in trafficking situations, those migrants who should be recognised as victims (hence granted protections and compensation), end up being prosecuted and, more generally, treated like offenders.

Conclusions

The article briefly aimed at exposing some of the most evident and most dangerous shortcoming of the Italian legislative response to irregular migration.

On the one hand it carried out a structural analysis of the offence in Italian law, highlighted the dangers of the exclusion of the profit element from the definition of the simple form of smuggling and the consequent expansion of the scope of the provision. On the other hand it logically demonstrated that the wording of article 12, its subsection and aggravating circumstances represent a tool for the Italian legislator to prosecute both human trafficking and migrant smuggling without having to recognise victims of trafficking as such and thus provide costly protections and compensations.

[1] Italian title “Disposizioni contro le Immigrazioni clandestine”, unoffocial english translation to be found here.

[2] Alessandro Spena ‘Migrant Smuggling: a normative and phenomenological point of view from Italy’, BRILL (ed), in “Between Criminalization and Protection: The Italian way of dealing with Migrant Smuggling and Trafficking within the European and International Context” (2019).

[3] Anja Radjenovic, ‘Briefing-Protection of EU External Borders’, European Parliamentary Research Service (2019).

[4] Legisaltive Decree n.286 dated 25 July 1998, Consolidated Act of Provisions Concerning Regulations on Immigration and Rules about the Conditions of Aliens, article 12(1), unofficial translation.

[5] Protocol against the Smuggling of Migrants by Land, Sea and Air, article 3.

[6] Legislative Guide for the Implementation of the United nations Convention Against Transnational Organised Crime.

[7] Javier Escobar Veas, ‘Il fine di profitto nel reato di traffico di migranti: analisi critica della legislazione europea’, Diritto Penale Contemporaneo - Rivista Trimestrale, 1(2018).

[8] European Commission, Commission Staff Working Document- Refit Evaluation of the EU legal Framework against facilitation of unauthorised entry, transit or residence: The Facilitators Package (Directive 2002/90/EC and Framework Decision 2002/946/JHA.

[9] Ibid, p. 8.

[10] Consolidated text on Migration, article 12 (3ter) (b)- Imprisonment is increased from one third to half and a 25,000 Euro fine is imposed on every person if the facts as mentioned under paragraphs 1 and 3 are committed:

(b) are committed for profit, even indirect.

[11] Javier Escobar Veas, ‘Il fine di profitto nel reato di traffico di migranti: analisi critica della legislazione europea’, Diritto Penale Contemporaneo - Rivista Trimestrale, 1(2018).

[12] UNCLOS, SOLAS and SAR Convention.

[13] The law of the sea is not the only area of international law with which the EU criminal law provisions against migrant smuggling are incompatible: refugee and asylum law also presents many characteristics and objectives that are clashing with those of criminal law. Nevertheless, this topic would exceed the scope of the present article and require in-depth and detailed discussion.

[14] Italian Criminal Code, Article 600- Slavery, Servitude.

[15] Italian Criminal Code, Article 601- Trafficking in Human Beings.

[16] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention on Transnational organised Crime.

[17] Consolidated text on Migration, article 12 (3ter) (a).

[18] Cassazione penale, sez. un., 21/06/2018, no. 40982.

[19] Cassazione penale, sez 1, no. 47822/2018.

[20] Cassazione penale, sez. un., no. 40982/2018.

[21] Cassazione penale sez 1 no. 24785/2018.