The contribution, through an analysis of the structure of article 12 of the Italian Consolidated Text on Migration (criminalising the facilitation of illegal entry) and of article 601 of the Italian Criminal Code (criminalising trafficking in human beings), aims at demonstrating that the two provisions constitute vital gear in a legislative mechanism designed to contrast human mobility as a whole. More specifically, the contribution follows two parallel lines of analysis: the first one aimed at highlighting the ways the anti-smuggling law can be applied in order to enable the prosecution of humanitarian actors, while the second one points out the way in which the abuse of the same provision permits to the Italian authorities to avoid the recognition of trafficking victims, consequently resulting in the missed fulfilment of the international obligations contracted with the signature and ratification of the Palermo Protocols.
The Italian judiciary has recently dealt with smuggling and trafficking of migrants, in the lack of legal tools in the African countries where such phenomena are rooted. This paper, after a critical review of the proceedings where NGOs were criminalized, analyses some case law, distinguishing between territorial and extraterritorial misconduct. In the former group of cases, the notion of territoriality is broad and it encompasses facilitation of illegal immigration in international waters – a crime under article 12 of Legislative Decree 286/1998 – through the theory of the indirect perpetratorship. With respect to extraterritorial facts, the legal provision often applied is article 7 of the Italian criminal code, in connection with international and domestic rules, as well as article 10 of the Italian criminal code concerning crimes perpetrated abroad by a foreigner to the detriment of another foreigner. The internationalization of the criminal law approach to the issue is nevertheless the new path, even to involve more the international community in dealing with a cross-border phenomenon that affects in the same way western countries
Although in the public debate immigration is considered as an emergency, this paper begins taking into account the real data of such a phenomenon, strongly decreased in the past 18 months. It is then examined the issue of the illegal immigrant from a criminal law standpoint, in order to overcome the idea of reducing it to trafficking, focusing rather on the human nature of each individual, always involved in the crime of aiding and abetting illegal immigration, not being the perpetrator of the said offence. In light of the above the rights in the crucial phase of immigrants' reception can be better assessed, focusing then on administrative and criminal policies. In conclusion the paper examines the rescue at sea of illegal immigrants, pointing out some contradictions of the most recent criminal policy on the issue
The text presents the topics of the illicit traffics in the Mediterranean area, which was the subject of the 8th Training Course "Giuliano Vassalli" for PhD Candidates, held in Noto in 2017. The remarks are complemented by references to the following contributions of the participants selected for the pubblication.
Freezing and confiscation orders play a significant role as a way to combat smuggling. The need to deal with crimes which are committed by members of organizations operating in more than a State, and acting in such a way as to evade the jurisdiction of the State of arrival of migrants, makes cooperation at European and international level fundamental. This work examines some relevant aspects of this kind of cooperation, seeking to highlight the most problematic issues connected.
This work aims at reconstructing the Italian Criminal Legislation against the phenomenon of international trafficking in people (considered in its two components, trafficking of human beings and smuggling of migrants), in order to verify the effectiveness of the protection provided and the congruence with respect to international and supranational constraints. All this in the awareness that the fight against trafficking requires integrated policies and the involvement of the international community.
The present paper critically analyzes the European legislation on smuggling of migrants. According to the author's opinion, the communitarian legislator and the majority of the European countries have confused this specific crime, regulated by international law in Palermo Convention, with the felony of facilitating illegal immigration. This undue overlap between different types of crime generates multiple and complex problems. In first place, the article studies the requirements of smuggling of migrants in international law. In second place, it examines the reasons why is not possible to conceive this crime and the felony of facilitating illegal immigration as functional equivalents. Finally, the paper proposes to distinguish clearly the elements of both crimes and their respective application ambits.
The aim of the present work is to question the hypothetical margins of criminal relevance of assistance behaviors provided by the rescue operators at sea (especially if belonging to N.G.O.s) in favor of the migrants intercepted in the Mediterranean Sea and transferred to the Italian shores. This analysis, which will necessarily presuppose the recognition of the numerous national and international obligations in term of search and rescue at sea, will move from the examination of the relations between the ordinary and lawful rescue operations and the crime of facilitating illegal immigration; then it will consider the possibility − presented by recent judicial cases, starting from the criminal proceedings that saw the seizure of the Iuventa ship, belonging to the N.G.O. Jugend Rettet − that some conducts carried out by the rescuers, further and different from those strictly related to the rescue activities, may be concretely considered suitable to support their responsibility under Article 12 of Italian t.u. imm.
Human traffickers frequently take advantage of operative protocols, that make them unpunishable pursuant the Italian Criminal Law, because, according to Art. 6 of the Italian Penal Code and International Convention on the High Sea, jurisdictional powers cannot be exercised when the conduct is committed on the High Sea. So, illustrating the territorial limitations of the efficacy of Criminal Law, the research focuses on the hermeneutical solution given by the Court of Cassation that, apparently with the intent of pursuing a more effectivity of the Criminal response, recurred to the controversial category of the indirect offender in order to sanction smuggling conducts that enjoy the rescue intervention of the Italian authorities to reach their criminal aims. In turn, in order to better identify the Italian jurisdiction in the crime of Art. 12 T.U. imm. I propose to correctly apply the concorso di persone (art. 110 c.p.) and the reato eventualmente permanente. The difficulties of a dogmatic framing, together with the trend towards a universalistic validity of the jurisdictional powers when human rights are involved, may recommend an interpretation of Art. 7 of the Italian Penal Code to cover a wider protection of human rights, according to interpretive solutions of § 6 of the German Penal Code.
This article deals with the limits to terroristic hatespeech - in particular, the glorification of Islamic terrorism and incitement to jihad - in the Italian legal system. More precisely, the author describes how, in the case of public terroristic hate-speech, the balance between freedom of speech and prevention of terrorism is struck in criminal law and immigration law, underpinning, on the one side, the divergent assessment of the danger to the public order and state security for a person to be either criminally prosecuted or expelled; while on the other side, underpinning the divergent enjoyment of the right to a fair trial in case of, respectively, criminal prosecutions for public incitement to terrorism and administrative expulsion for terrorism prevention purposes.