Case Law Database

Smuggling of migrants

Offences

• Enabling illegal stay

Smuggling of migrants

Sentenza 26457/2013

Italy

Fact Summary

The appellant was prosecuted for having facilitated the illegal stay of two foreigners (extra-EU nationals) in Italy, by providing accommodation in her apartment
Specifically, the appellant lodged two irregular migrants in the apartment formally rented to her, in Milan (Italy), in exchange of the payment of a monthly rent.
 
The appellant “lent” her name to one of the irregular migrants (her compatriot) so as to allow circumventing rules on the registration of bails and norms on public safety.
 
The appellant acted in this manner with the purpose of perceiving an unfair and undue profit by exploiting the illegal situation of the migrants in the country.
 
Legal findings:
The Court of First Instance of Milan (Italy) convicted the appellant of migrant smuggling in its modality of facilitation of illegal stay. It sentenced the appellant to one-year imprisonment and 6000 Euro fine. The Court of Appeal of Milan confirmed the decision. The Court of Cassation reversed the ruling of the Court of Appeal.
For further details, see infra “Procedural History” and“Commentary”.

Commentary and Significant Features

The Court of Cassation upheld the appeal, thus reversing the decision of the court a quo. In so doing, it highlighted:
 
  • The crime type of migrant smuggling in its modality of facilitation of illegal stay requires “dolo specifico”, that is the intent of the perpetrator in obtaining an undue/unfair profit by taking advantage of the illegal situation of the migrant.
  • In other words, it is not sufficient to favour the illegal stay of a migrant by making available to him or her a place of lodge or accommodation. It is additionally demanded the intent of perceiving an unjust profit through the exploitation of the illegal situation of the foreigner. This is materialised in the imposition, through the terms of the lease, of unfair and excessively onerous conditions on the migrant (the most vulnerable contractual party) when compared with the standard of contractual relationships or general terms of the contemporary market. This legal framework – the result of a conscious legislative decision – demands the judiciary to pay particular intention to the mens rea of this specific crime type.
  • The lower courts failed to assess this element. They did not analyse whether there had been the intent of obtaining an undue and unfair profit, by applying excessively onerous conditions on the migrants. The lower courts failed to examine the extent to which – if any – the appellant had exploited the, and taken advantage of, the illegal situation of the migrants in Italy.
  • In the reconstruction of the criminal type as presented by the lower courts, it misses a constitutive element of the crime type at stake; that is, the “dolo specifico”, as afore-explained. Thus, the conduct does not constitute a crime.
 
 
NOTE: As per Italian national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation - Italy).
Sentence Date:
2013-06-18

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor

Gender Equality Considerations

Details

• Gender considerations
• Female principal offender

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Supreme Court
Type of Proceeding:
Criminal
The Court of Appeal of Milan (Italy) confirmed the decision of 15 April 2008 of the Court of First Instance of the same city, which, in summary proceedings, had convicted the appellant of migrant smuggling
It followed the appeal herein under analysis.
 
 

Defendants / Respondents in the first instance

Defendant:
R.R.F.
Gender:
Female
Legal Reasoning:
On appeal, the Defence argued a violation of the principle of legality. Specifically, it noted there was no evidence of (i) an unfair and undue profit having been perceived by the appellant, (ii) payment of any rent to the appellant, and (iii) most importantly, the exorbitant and onerous nature of an eventual profit. 

Charges / Claims / Decisions

Defendant:
R.R.F.
Charge:
Provisions against irregular immigration
Statute:
Decree Law 286/1998Article 12 (5)
Verdict:
Not Guilty

Court

Court of Cassation

Sources / Citations

Corte di Cassazione
Sentenza 26457/2013
18 June 2013

Attachments