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”.