Migrants: penalties against people-smugglers are lawful

The penalties provided for in respect of the offence of causing death or injury as a consequence of offences relating to illegal immigration, introduced in 2023 by the Cutro Decree. This is the ruling of the Constitutional Court in Judgment No. 120, filed on Friday 3 July, ruling on the issues raised by the Preliminary Hearing Judge of the Court of Syracuse, who considered the constitutionality of the prescribed penalty to be highly uncertain in terms of compliance with the principle of proportionality: the provision, in fact, punishes aiding and abetting irregular entry with imprisonment of between 20 and 30 years when the act results, as an unintended consequence, in the death of several people or of one person and serious or very serious injury to others.

The judgement acknowledged that the legislature had provided for a ‘punitive response characterised by exceptional severity’; it nevertheless ruled out any disproportion in relation to the seriousness of the offences covered by the provision. Such a severe punitive measure is intended to deter “the rampant phenomenon of the transport of irregular migrants carried out under conditions that expose the migrants themselves to serious danger to their lives and safety and which, increasingly often, tragically result in the deaths of many of them; criminal organisations often exploit their state of need – even extreme need – to profit from such activities”.

The ruling also addressed the controversial figure of the ‘‘migrant-smuggler’ who is not a trafficker – that is, a migrant with no links to a criminal organisation, who is occasionally entrusted with the task of driving the vehicle or to carry out other logistical tasks. The Council points out that the legal system already provides for rules to exclude or moderate such criminal liability, mitigating the penalties in relation to the conduct of the perpetrator of the offence.

In particular, when a migrant is forced to take on the role of a ‘smuggler’ because of violence or threats, in order to escape the degrading conditions of detention centres or to deal with an emergency situation during the crossing, the state of necessity may be taken into account. In the absence of this, the mitigating circumstances provided for a contribution of minimal importance or for a state of psychological subjugation to the traffickers may be applied. These provisions allow the sentence to be adjusted to reflect the ‘actual degree of culpability’ of the contribution made by the individual.

The comparison with intentional homicide is also unfounded: the 20-year sentence provided for applies to the death of several people or the death of one person accompanied by serious or very serious injuries to others. The comparison should therefore rather have been made with multiple murder or murder committed in conjunction with causing bodily harm.