by Carlo Caprioglio, Karl Heyer and Sara Traylor

An important aspect of bordering processes in Italy is to criminalise the facilitation of migration. The first notable instances date back to the 1990s, when people were fleeing political unrest and economic crisis in Albania. It is in these years that the term “scafista”, a derogatory term to describe migrant boat drivers, or captains, was coined and gained popularity in the media and political discourse. Italy’s closing of the border and active hindering of the maritime crossings culminated in 1997 with the Katër i Radës shipwreck. The captains of both ships were put on trial and sentenced.

The following year, Italy approved its new Immigration Act, introducing for the first time the crime of “facilitation of irregular immigration” into the Italian legal order (Article 12). Four years later, European Council Directive 2002/90/EC (also known as the facilitation directive) was approved, defining “the facilitation of unauthorised entry, transit and residence”. The implementation of the Directive in the domestic law of all member states, including Italy, broadened the scope of the provision by criminalizing all acts of facilitation not only of entry but also of “irregular” stay and transit.

Spaces of Ambiguity: Politics in Law

The way Article 12 is phrased (e.g. “other acts aimed at illegally procuring entry into another state”) allows room for broad interpretation, leading to the criminalisation of any act that can be interpreted as facilitating a border crossing, even indirectly. It thus comes as little surprise that it forms the basis for numerous attempts by the government to criminalize various forms of solidarity and migrant self-organization.

These range from the systematic arrest of migrant boat drivers arriving in Italy, to famous cases connected to NGO rescue ships, to the arrest and detention of people who hosted, fed or otherwise provided solidarity to people on the move. This was the case of four people from Eritrea who were imprisoned for almost two years and underwent a six-year-long trial; or the many migrants on trial in Northern Italy (e.g. Trieste and Milan) for having facilitated the transit of other people on the move in Italian territory.

Crucial in this regard is the fact that many of the acts construed to facilitate border crossings can also be understood simply as acts of solidarity. Given the inherent gap between the text of a law and the way it is applied in practice, it is in these interstices of interpretation where law becomes malleable and subject to discretion.

The Criminalization of Captains

The strong political underpinnings behind the application of article 12 to boat drivers, or captains, has led to the systematic arrest and sentencing of more than 2700 people arriving to Italy via boat since 2013, often based on very little evidence. Boat drivers are identified mostly through two or three witness testimonies, singled out by Italian authorities and Frontex at landing, and often extracted through the use of pressure and incentives such as promising documents or access to the asylum procedure, for collaborating, or threatening to deport someone if they are non collaborative, or investigating the witness for illegal entry. Captains are generally arrested based on these statements, during identification proceedings for the passengers of the boat. If someone has died during the journey, captains were also accused of ‘manslaughter’ or ‘shipwreck’ (now integrated into the new article 12bis), and face up to 30 years in prison.

At times, the captains or even the passengers of the boats do not perceive the “criminality” of these actions, with the latter sometimes openly identifying the captains as positive figures that helped them reach Italy alive. Boat drivers face kafkaesque trials, characterized by a systematic use of pre-trial detention, often without adequate interpretation, and without a social network that can support them from outside prison. They are generally assigned state appointed lawyers that sometimes do not have the resources to guarantee a good defense, and opt for plea deals that automatically recognize guilt. When captains are released from prison, they face administrative detention and deportation whether they were found guilty or innocent, and obstacles to applying for asylum.

The Criminalization of Migrant Communities

But the criminalisation of people acting in solidarity with others is not restricted to captains. Take, for example, the four Eritrean people of the Agaish case. They were charged with facilitation of transit for having helped friends and relatives from Eritrea, who had arrived in Italy by sea and who later decided to move to other European states. Their actions of solidarity, such as buying food, clothes or bus tickets to other cities in Italy (e.g. from Sicily to Rome), were framed as acts aimed at illegally procuring entry into another state. Sentenced in the first and second instance to up to four years of imprisonment, the four men were only acquitted by the Court of Cassation in 2022, after six years of trial and 21 months of preventive detention. But at the same time, the differential treatment of migrant and European activists becomes clear when comparing similar cases of
criminalization of facilitation of transit on Italian territory. While activists from Linea d’Ombra and Baobab were acquitted in the first hearing at the request of the prosecutor for essentially the same actions, people with non-European passports in similar proceedings are still on trial today.

Conclusion

The cases described above show how the expansive interpretations of Article 12 have disrupted networks of solidarity within and beyond migrant communities. At the same time, this more generally takes place within a legal landscape that is increasingly criminalizing social and community spaces and groups in Italy.

Moreover, the accusation of criminal conspiracy, that occurs in all the contexts described above, and the consequent involvement of the Antimafia Directorate (DDA, DNAA), and application of antimafia legal tools and regimes to migration contribute to creating both the political environment and the legal frameworks for the criminalization of mobility and solidarity.

First, it legitimises the use of investigative tools designed to combat organized crime and the systematic use of pre-trial detention. Second, it makes possible the transformation of simple actions of solidarity that per se do not constitute a crime according to art. 12 – say, providing shelter for a night to an undocumented person – into an individual’s contribution to the larger operations of criminal organizations that facilitate the movement of people across borders. This reflects a tendency of treating the crackdown on migrant mobility as a crackdown on transnational organized crime. Finally, the charge of criminal conspiracy also affects the way in which the defendants are portrayed in the media and perceived by public opinion, creating a wall of suspicion that isolates them and prevents solidarity.

While both Europeans and people on the move are criminalised for facilitating movement across land and sea, they are affected in different ways. Key in this regard is a “differential justice” based on nationality and race, which is ultimately aimed at obstructing movement towards and within Europe. In particular, this is highlighted by the use of pre-trial detention, which is leveraged almost exclusively against migrants charged with article 12, and not their European counterparts. The logic behind the creation of article 12 and its application thus constitutes a racialized version of criminal justice. As such, it replicates and reinforces the same social hierarchies of violence, exploitation and privilege that are (re-)produced and protected by the border regime – and therefore must be abolished.

first published on 14 June 2023.