The Distinction between Facilitation of Irregular Immigration and Organised Smuggling of Migrants and Its Relevance for the Italian Criminal Law?

Abstract

In its judgement No. 63/2022, the Italian constitutional court advances a reading of Art. 12 of Legislative decree No. 286/1998 (Tuimm) according to which a distinction should be made between mere facilitation, punished in par. 1 and seen as revolving around the “altruistic” conduct of an “individual” author, and smuggling of migrants, which the Court argues to be specifically criminalized instead in paragraphs 3, 3 bis and 3 ter, and to be evoking “scenarios of involvement of criminal organizations.” This paper raises some criticisms of this reading, showing how it, in addition to not being necessary for the Court’s purpose of showing the unconstitutionality of the two aggravating factors under censure (use of international transportation services and use of counterfeit documents), does not fit to explain the actual contents of Art. 12 Tuimm.