On June 18th, the European Court of Justice (CJEU) will examine the EU legal framework criminalizing the facilitation of unauthorized immigration and assess its compatibility with the EU Charter of Fundamental Rights.
The outcome could have far-reaching implications for both EU and national legal frameworks and hundreds of ongoing ‘smuggling’ cases. Purportedly designed to combat criminal networks and ensure the safety of people in transit, instead since 2002 the EU Facilitators package has led to the prosecution of thousands of people on the move themselves, as well as those working in humanitarian assistance or carrying out search and rescue operations.
The CJEU's assessment was requested in relation to the Kinsa case (formerly Kinshasa, C-460/23) by a court in Bologna, Italy. This case was brought against 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 and seek protection. On arrival, O.B. was separated from the two minors and now faces charges of facilitating their unauthorized immigration which carries up to five years imprisonment.
“The Kinsa case is a unique opportunity to challenge the so-called crime of solidarity, which has targeted so many people on the move and activists in the last 20 years,” says Francesca Cancellaro, O.B.’s defense counsel. “This over-criminalization seriously damages fundamental human rights and must be reversed.”
Cancellaro, defense counsel for O.B. submitted the request for a preliminary ruling by the CJEU to assess the compatibility of the EU’s Facilitators Package – as well as the related Italian Immigration Act, Article 12 - with the EU Charter of Fundamental Rights (specifically the right to personal liberty and property, the rights to life and physical integrity, the right to asylum, and the respect for family life.)
The CJEU will now examine whether these laws disproportionately criminalize the facilitation of unauthorized entry by mandating severe penalties irrespective of motive, without any mandatory exception for actions taken for altruistic or humanitarian motives.
The outcome of the review could have far-reaching implications for both EU and national legal frameworks as well as for other individual legal proceedings. It could invalidate all or parts of the laws which would necessitate action from the EU Commission to amend the law in order to ensure compliance with fundamental rights. Given the ongoing re-negotiation of the EU Facilitators Package, such a ruling could significantly influence the discussions surrounding the reform.
“Dragnet laws criminalizing the ‘facilitation’ of unauthorized migration expose people on the move to even greater harm,” says Allison West, senior legal advisor at ECCHR. ”The Kinsa case is one example in a broader trend of states weaponizing law to serve anti-migration agendas. The CJEU must force a realignment of the EU framework with rights protection."
Corresponding national legislation could then also be deemed unlawful, necessitating its reassessment. Individuals with ‘facilitation’ offense cases pending can ask for a suspension of their cases, awaiting the CJEU's decision, and those already sentenced under the challenged laws could subsequently have their cases re-assessed.
"The court's reasoning in our case makes clear: without legal entry routes, facilitation is a crucial measure to safeguard and protect fundamental rights," says Sascha Girke from the Iuventa-Crew who was recently acquitted by a court in Italy of facilitating unauthorized entry during rescue at sea.
"We have documented countless cases where people on the move have received life sentences in some cases simply for steering a boat. These laws are not fighting crime, they are a crime," say Julia Winkler from Borderline Europe.
The CJEU’s decision is expected in September 2024.
You can find more information, frequently asked questions, legal critiques and voices of affected individuals, activists and organizations on the Kinsa case website.
O.B.’s counsel is additionally supported in the proceedings by PRO ASYL.
For further queries or interview requests, please contact: kinsa-case@solidarity-at-sea.org
