Case Law Database

Smuggling of migrants

Offences

• Enabling illegal entry
• Financial or other material benefit (to smuggler)

Proc. Nr 1701/2015 R.I.M.C.

Italy

Fact Summary

The case against the defendant results from a broader investigation into the activities of an organised criminal group – mostly composed of Eritrean nationals – operating in Italy and with tight connections abroad. The main scope of the organised criminal group is the smuggling of migrants (Eritrean, in their majority) into Italy and other E.U. country, with the purpose of obtaining a profit therewith (usually, between 120 and 200 Euro per person).
 
The defendant organised and arranged the clandestine trip of irregular migrants arrived in Italy to countries of Central and Northern European, often by bus as it would not imply any document control. To this end, he was in contact with other identified and non-identified intermediaries of the organised criminal group. The main scope of the defendant’s activities was to remove migrants from reception centres before their photo identification and registration in the Eurodac system, thus enabling the presentation of asylum claims in other countries rather than Italy (country of irregular entry) as per the so-called Dublin II System. The defendant also accommodated irregular migrants awaiting their travel to the desired final countries of destination.
The defendant admitted to the logistical assistance provided to irregular migrants but denied to have had any lucrative purpose.
 
In ascertaining the facts, authorities took into account the result of interception of communications, documental and testimonial evidence. Authorities further performed verification diligences.
 
Legal findings:
The Preliminary Investigations Judge of Catania (Italy) deemed there were no significant indicia of participation in an organised criminal group dedicated to the smuggling of migrants (associazione a delinquere). To the contrary it considered the evidentiary material supported the probable responsibility of the defendant for the crime of migrant smuggling. Accordingly, it determined – as precautionary measure -  the defendant’s obligation to present himself before the Criminal Police every day of the week.
On appeal, the Court of Catania confirmed the precautionary measure.

For further details, see infra “Commentary”,

Commentary and Significant Features

The Court of Catania (Italy) dismissed the appeal, thus confirming the precautionary measure determined by the Preliminary Investigations Judge, i.e. the defendant’s obligation to present himself before the Criminal Police every day of the week.
 
In so doing, the Court highlighted:
  • According to Regulation CE 343/2003 (so-called Dublin II system), the EU State competent to analyse applications for international protection is that where the irregular migrant first entered (by land, air or sea). Some exceptions might apply to this rule, e.g. application for family reunification already under exam by another EU State, risk of inhuman treatment for the migrant were him or her to be transferred to another EU State). None of these conditions applied, however, to the instant case. The photo identification and registration of migrants through the Eurodac system is crucial.
  • By arranging clandestine trips to irregular migrants settled in reception centres in Italy (before the registration via Eurodac), the defendant clearly had the intent of defrauding authorities and the legal regime in place. The intent to obtain a profit was evident through the evidence submitted.
  • The activities of the defendant were developed in a professional manner, as revealed, e.g., from (i) his vast network of contacts enabling the movement of cash from Eritrea to Europe, via various countries, such as Israel and Sweden; (ii) the support of other intermediaries (e.g. to collect and transfer payments).
  • The mens rea was deemed verified. The defendant was fully aware of the illegal nature of his conduct as revealed by his own declarations obtained via interception of his telephone communications. For instance, “I am not afraid of going to jail”, but rather of seeing his ”own document” compromised (i.e. his own pending application for asylum) or being deemed an “oganiser of migrants’ trips”.
  • The amount of cash demanded and perceived by the defendant (notoriously superior to the price of a bus ticket) ran against the defendat’s claim that he had no intent of obtaining profit with his conduct.
  • The activities of the defendant were performed in a (i) reiterated and serial manner, which addressed far more than five migrants, (ii) by more that three associated persons, (iii) with the purpose of obtaining a financial or other material benefit. Thus, the existence of aggravating circumstances is clear, as per Article 12 (3) Decree Law 286/98 of 15 July.
  • Precautionary requirements subsist given the (a) risk of recidivism, (b) risk of escape of the defendant in view of his close ties with a criminal network dedicated to facilitating, in a reiterated and serial manner, the irregular movement of persons across borders.
 
It should be noted the importance of electronic surveillance techniques for the success of investigations.
 
Furthermore, it should be highlighted the application of a less severe precautionary measure (vis-à-vis remand in custody) which is likely to be connected – one may argue – with the non membership in an organised criminal group and the low profit  obtained.
 
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:
2015-10-22

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Offending

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Italy

Israel

Eritrea

Sweden

Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
On 29 September 2015, the Preliminary Investigations Judge of Catania determined – as a precautionary measure – that the defendant should present himself before the Criminal Police every day of the week. The defendant appealed to the Court of Catania.
 
 

Migrants

Migrant:
Mostly Eritrean

Defendants / Respondents in the first instance

Defendant:
K.K.
Gender:
Male
Nationality:
Eritrean
Age:
27
Born:
1987
Legal Reasoning:
In contesting the precautionary measure, the legal counsel of the defendant argued as follows:
-        Non-involvement of the defendant in the crimes he was accused of. The defendant would have attempted to assist his compatriots in purchasing the means of subsistence they required. The money he perceived from migrants would have been destined to buy such goods. There would have been no profit intent.
-        Absence of underlying precautionary requirements.
-        Disproportionality of the precautionary measure determined, which would be too severe vis-à-vis the circumstances of the case.

Charges / Claims / Decisions

Defendant:
K.K.
Charge:
Provisions against irregular migration
Statute:
Decree Law 286/1998Article 12 (3) (a), (b), (d) 3-bis, 3-ter
Verdict:
Other

Court

Corte di CATANIA

Jurisdiction

 
 

Sources / Citations

Corte di Catania
Proc. n. 11923/2014 R.G.N.R./mod. 21           

Proc. n. 10351/2015 Reg. G.I.P.   
Proc. n. 1701/2015 R.I.M.C. 
22 October 2015

Attachments