Base de datos de jurisprudencia

Tráfico ilícito de migrantes


• Facilitación de la entrada ilegal

Proc. N. 27283/15 Reg. Gen.

Resumen de los hechos

On 19 July 2014, 2100 migrants arrived to the Port of Salerno (Italy). They had been adrift in different vessels* when they were rescued by a ship of the Italian Navy. The Public Prosecutor accused three individuals of smuggling of migrants.
The irregular migrants who identified the defendants as smugglers had not been interrogated with the assistance of legal counsel even though they (the migrants) were being investigated for the related offence of illegal entry and stay in the national territory (Article 10 bis Decree Law 286/1998). Defendant A.A. was heard with the assistance of legal counsel. He admitted to have accepted the task of mastering the vessel but his declarations were not preceded of the warnings enshrined in Article 64 (3) Code of Criminal Procedure, including (i) his or her declarations might be used against him or her, (ii) right not to answer to certain questions in the terms determined by law. The other defendants denied criminal responsibility.
In ascertaining the facts, authorities relied much on testimonial evidence.
Legal findings:
The Public Prosecutor accused the defendants of migrant smuggling and ordered their precautionary detention. The Judge for Preliminary Investigations denied the precautionary detention of the defendants given that the declarations of the migrants (that identified the defendants as smugglers) had to be declared null given that they had not been heard with the assistance of legal counsel. The Public Prosecutor appealed. The Court of Cassation denied the appeal and upheld the appealed decision.
For further details, see “History of Proceedings” and “Commentary”.
* Note: In this analysis, the UNODC uses the term “vessel” with the meaning it entails for the purposes of the Protocol against the Smuggling by Migrants by Land, Sea and Air, that is “any type of water craft, including non- displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non-commercial service” (Article 3 (d)). Accordingly, it comprises unseaworthy ships and boats in precarious conditions.

Comentario y aspectos destacados

The Court of Cassation notes that the legal regime applicable to situations enshrined in Article 12 (1) (c) and Article 371 (2) (b) Code Criminal Procedure is the same.
It proceeds to clarify that the fact that the migrants heard by authorities could have applied to political asylum – and even obtained refugee status – does not alter the circumstance that, at the moment of their entry in Italy, those individuals were indeed in irregular situation. The offence of “illegal entry and stay” is thus verified and such persons were rightfully under investigation. Furthermore, the court may not acquit the migrant of the offence of “illegal entry and stay” on grounds that he or she assembles the requirements to obtain refugee status. The decision on an application for political asylum belongs to the competence of a specific administrative service that the court may not replace.
The Court unveils that it remains to be assessed whether migrants can be deemed to be victims of the offence of migrant smuggling. It then clarifies that even if the migrants were victims of migrant smuggling, if they are suspects/investigated in the context of a related offence (in casu, illegal entry and stay), then they must be heard under the so-called “testimonianza assistita”, i.e. with legal assistance. Accordingly, in line with consolidated jurisprudence from the Court of Cassation, the declarations given by someone that is simultaneously (i) victim of a crime and (ii) suspect or investigated in a related offence, may not be used if such person was heard as a witness rather than with all the guarantees attached to the status of defendant. The judicial declaration of inadmissibility of such testimonies is bestowed upon with erga omneseffect.
Finally, it is irrelevant to invoke in this context Delegating Law (Legge Delega) Nº 67 of 2014 as it did not abrogate Article 10 bis Decree Law 286/1998. De-criminalisation will occur if and when the Government issues the corresponding authorising decree(s).
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)
Fecha de la Sentencia:

Cuestiones transversales


Responsabilidad por

• Delito consumado

Base de responsabilidad

• Intención dolosa

Responsabilidad implica

• Delincuentes principales



• Ocurrió a través de uno (o más) de las fronteras internacionales (transnacional)


Organismos interesados

• Criminal Police
• Public Prosecutor

Información sobre el procedimiento

Sistema jurídico:
Derecho continental
Última sentencia judicial:
Tribunal Supremo
Tipo de Proceso:
The Public Prosecutor of Salermo (Italy) determined the arrest and ordered the precautionary detention of the defendants. The Judge for Preliminary Investigations of Salerno denied confirmation to such order on 22 July 2014 (N. 5052/2014). The Public Prosecutor appealed.
The Prosecution argued that for one to be in presence of related offences (“reati connessi), it is necessary (as per Article 12 (c) Code Criminal Procedure) that the incidental crime - used as a means – and the crime amounting to the final objective be committed by the same person. Rather, the relationship intertwining the crime of migrant smuggling, on the one hand, and the offence of illegal entry and stay in the national territory, on the other, is that one single fact projects its evidentiary relevance over a variety of crimes (Article 371(2)(b) Code Criminal Procedure). Accordingly, there was no legal obligation to hear the migrants as suspects or defendants. It was admissible to hear them as witnesses and, consequently, without legal counsel.
The Prosecution also argued that the migrants who gave declarations to authorities could have been in the position of requesting political asylum and, as such, be holders of a right to enter Italy with the purpose of seeing his or her refugee status recognised. The migrants should be considered victims of migrant smuggling, hence unaware of the irregularity of their entry in Italy. This would be all more so the case given that migrants did not intend to remain in Italy but rather proceed to The Netherlands or Norway. Accordingly, Article 63 (2) Code Criminal Procedure (re legal assistance) were not to be applied in casu.
Finally, the Public Prosecution highlights that Delegating Law (Legge Delega) Nº 67 of 2014 foresaw that the Government de-criminalised the offence of illegal entry and stay in national territory (as determined in Article 10 bis Decree Law 286/1998) making it an administrative offence. In these terms, it would be paradoxical to render the declarations of migrants unusable in the proceedings for not having been heard as (possible) defendants – and thus with legal counsel - even though migrants were not subject to criminal punishment by virtue of de-criminalisation of “illegal entry and stay”. 


2100 migrants smuggled. Migrants were not heard as suspects in the context of Article 10-bis Decree Law 286/1998 (illegal entry and stay in national territory).

Acusado / Demandado de primera instancia



Provisions against irregular migration
Decree Law 286/1998Article 12 (3) (a), (b), (d) 3-bis, 3-ter


Corte Suprema di Cassazione


Corte Suprema di Cassazione 
Proc. N. 27283/15 Reg. Gen. 
19 March 2015