The Kinsa case marks a breakthrough in the fight against the criminalisation of the facilitation of freedom of movement. This case has succeeded, for the first time, in bringing migration facilitation laws to court. The Kinsa case is both part of, and feeds into, a broader movement that has been working to expose the effects of facilitation laws, support those affected, and build perspectives that dismantle the foundations on which they are built.
How facilitation laws ended up in the European Court of Justice
Lawyer Francesca Cancellaro filed a petition to ask the European Court of Justice for an assessment of the legitimacy and legality of the European and Italian facilitation laws, the Facilitators’ Package and Article 12 of the Italian migration law. This request, which was denied by the judge in charge of the trial against the four iuventa-crew defendants in june 2023, was resubmitted and accepted in July 2023 the Kinsa case, tried at the Court of Bologna. The judge of the Court not only accepted the application, but included all the legal arguments raised by the Cancellaro.
What is the Kinsa case?
The so-called Kinsa case concerns the trial against O.B., a woman of Congolese origin accused of facilitating the unauthorised entry of two minors, her daughter and niece. The three arrived at Bologna airport in August 2019, and O.B. was immediately arrested when it was discovered that the passports with which they had flown from Casablanca (Morocco) were forged. O.B. faces up to 5 years in prison for ‘aiding and abetting unauthorised migration’, a charge based on article 12 of the Italian migration law.
Main arguments in the Kinsa case against facilitation laws.
In her request for assessment to the European Court of Justice, Attorney Cancellaro raises several arguments why she considers the European and Italian facilitation laws illegitimate, unlawful and disproportionate. With regard to the Facilitators Package, Cancellaro questions the two main pillars of the Facilitators Package. On the one hand the obligation to criminalize the facilitation of entry without requiring a profit motive, and on the other the fact that it does not oblige EU Member States to apply a ‘humanitarian exception’, which would exclude actions taken for altruistic and humanitarian purposes. For Cancellaro, these two aspects mean that the fundamental rights people on the move and those supporting them are subjected to a completely disproportionate criminal penalties.
In addition to the direct effects on the persons accused of facilitation, mainly people on the move and activists and humanitarian actors, the consequences of criminalisation of facilitation affect the people who are being facilitated themselves. Due to the potential criminal punishment, individuals or organisations might refrain from supporting people on the move, leading to a ‘chilling effect’ or ‘deterrent effect’. As some of the services provided by these organisations protect fundamental rights, such as search and rescue, medical assistance, food, shelter, their reduction affects the right to life (Article 2 of the EU Charter of Fundamental Rights) and physical integrity (Article 3). On the other hand, the criminalisation of the provision of information and legal support, and the monitoring of state violence in border areas (e.g. pushbacks and pullbacks) results in the violation of the right to asylum (Article 18) and the right to family life (Article 7) of persons on the move.
What are the stages and timing of the process?
The only hearing in this process took place on 18 June. During this hearing, in addition to the lawyer Francesca Cancellaro, representatives of the European Commission and the Council, and of the governments of Italy and Hungary intervened. Although all the actors tried to avoid entering into the root debate raised in Cancellaro’s arguments, thus showing the absolute lack of arguments to refute it, the strategies were diverse.
The Commission tried to reduce the debate to a single aspect, putting forward an interpretation of the Facilitators Package that would exclude from criminalisation those who are in charge of minors with whom they have a personal relationship. An interpretation that was rejected by the other parties. Both the Council and the Hungarian government argued that European directives should only establish minimum criteria, and that the responsibility for the design of laws lies with the member states. Finally, the Italian government, the party in a worse starting position given that the discussion also includes the illegitimacy and illegality of article 12 of its migration law, argued that there is no problem with the current form of the facilitation laws and argued that Italy already has a humanitarian exception (ignoring, of course, that this only applicable when it comes to facilitating residence in Italy or unauthorized entry from Italy to another country, but not when it comes to facilitating irregular entry into Italy.
The decision of the European Court of Justice will be announced on 5 November. There are several possible outcomes. The Court may declare the invalidity of the laws or invalidate specific provisions. It may propose a particular interpretation of the laws, or it may validate the laws, establishing that they comply with the EU Charter of Fundamental Rights.
For more information please check our website: https://kinsa-case.eu/