1. Facilitating illegal immigration
2. Homicide and other crimes
3. Criminal association and anti-mafia law
4. National jurisdiction

1. Facilitating Illegal Immigration

The accusation leveled at someone identified as having driven a boat of migrants directed towards Italy, or at someone who has taken on some other role during the crossing, is the crime established by Article 12 of the Immigration Act, a series of measures introduced into Italian law to discourage, punish and block entrances into Italy which violate the rules that regulate and protect the nation’s borders.

Italian law does not only punish people who ‘promote, direct, organize or finance’ people trafficking, but also anyone who physically transports migrants who do not have an entrance visa – and, in general, anyone whose actions facilitate illegal entrance into Italy or, indeed, into any other country. It is immediately clear that the way the law is written does not aim to punish only members of any apparent organization that manages human trafficking, but anyone who has even the most minimal or insignificant role that contributes to the illegal entrance of migrants. The members of a smuggling organization and anyone who drives a boat are thus put onto the same level, including anyone who drives the boat in circumstances that have forced them to “contribute” to the illegal entrance of migrants.

It is clear from this that what interests the Italian state is to do everything possible to avoid people entering Italy without a visa, and to punish anyone who contributes to the journey of migrants into Italy, willingly or otherwise. Indeed, the juridical ‘good’ that is protected by the criminalization of facilitating illegal immigration is the country’s borders; the consequence of this is that migrants who risk their lives and/or are economically exploited to undertake this journey are not considered to be the offended persons – unless they demonstrate to have been subjected to a serious form of harm (violence, torture, the loss of a relative during the journey).

Facilitating illegal immigration – in its ‘simple form’ (we will return to the ‘aggravated’ forms) – can earn a punishment of between one to five years in prison and a fine of €15,000 for every person whose entrance into Italy has been facilitated.

Sentencing can be increased or decreased according to aggravating and attenuating circumstances included in the same law. In particular, so-called ‘aggravated’ facilitating of illegal immigration applies if there are at least five passengers; if their lives have been put at serious risk; if the migrants brought to Italy have been treated inhumanely; if the crime has been committed by at least three people; if fake documents are used; if the criminals used weapons. In these circumstances, sentencing can be increased to between 5 and 15 years imprisonment. The most frequently contested of these aggravating elements are the number of passengers and the risky situation of the vessel. We have also seen the accusation of the use of weapons applied when someone was found with a knife on their person, or if someone was accused along with other ‘persons unknown’ (referring to the smugglers still in the country of departure) who operate weaponry. The law establishes an even higher sentence if multiple aggravating factors are confirmed.

A further important aggravating element, above and beyond the others already listed, is applied if the crime has been committed for the ends of an ‘unfair profit’ – i.e. earnings gained through illegal actions, even if this profit is ‘indirect’ – by recruiting people for sexual exploitation and/or exploitative work, especially minors. The law establishes that this increases the sentencing between one third to one half. If someone is caught during the act of the crime, the law establishes their arrest and imprisonment awaiting trial (so long as there is no other possibility of method of detention that compromises their personal freedom less).

It should be noted that the punishments established for this crime, above all in aggravating circumstances, are extremely harsh. Someone can be sentenced to fifteen years in prison and still have the sentence increased for making an unfair profit. In the example of a captain who drives a boat with drive people on board – perhaps even a migrant themselves who has nothing else to do with people smuggling (see the section Spectrum of Captains) but has been paid for that single voyage – they could in theory be sentenced to nearly 20 years of prison simply for having driven the boat. In reality, the highest sentences that we have seen for a case in which no one has died during the crossing are five years’ imprisonment – but it is concerning that this is, in a certain sense, ‘lenient’ in the eyes of the Italian law.

Even if the prison sentence represents the punishment which people experience directly and with great difficulties (see section 8 on ‘Freedom’) the monetary aspect of the punishment should not be forgotten. The fines are applied systematically and with surreal consequences: it is entirely normal for someone to be sentenced, for example, to three years in prison and one million Euros in fines. As the fines are practically impossible to pay in that situation, they largely go ignored, but could potentially ave consequences later on in the lives of those found guilty.

Another extremely important aspect of the Italian law is that the crime of facilitating illegal immigration does not require that the action has been committed for profit. In other words, paradoxically, facilitating, organizing, financing, promoting or effecting the transport of migrants into Italy is still considered a crime even if you have not done so for personal gain.

This is crucial because, in the Italian judicial system, for any law that establishes that a particular action can only be considered a crime because it was carried out to achieve a certain aim, this aim (that has effectively driven the action of the criminal) must be demonstrated by the public prosecution. If it does not exist, or cannot be proven, then no crime has been committed. An example of this principle in another law is in relation to facilitating the illegal presence of a foreigner in Italy (Article 12, comma 5 of the Immigration Act). In this case, it does not constitute a crime simply to host a foreign citizen without documents in your house – it only becomes a crime if you try to make an unfair profit. This means that the accusation of the crime can be levelled in many fewer cases than can be for facilitating illegal entrance – i.e. only in those cases in which the aim of economic exploitation can be demonstrated. On the contrary, facilitating illegal entrance does not require personal profit for it to be considered a crime : it represents a crime whatever the motivation behind the person’s action.

This simply makes it even more evident the architecture of Article 12: to put the member of a human trafficking organization, a mercenary, and forced migrant-captain all on the same level.

​2. Homicide and other crimes

Article 12 of the Immigration Act is not the only crime of which the boat drivers are accused. In many cases, this represents the basic crime, focusing on the act of actually having driven the boat and in general for having had a role – or supposing to have had one – in the navigation. Unfortunately, other incidents and circumstances can take place at sea which, even if not directly caused by the suspected boat driver, can nevertheless be attributed to them by the police (even if the accusations could often be more accurately attributed to actions or omissions perpetrated directly by institutional bodies, and indirectly by policies of European border closure).

Further accusations occur when the boat capsizes or, for other reasons, some of the passengers die during the journey. In this case, the crime of manslaughter or multiple homicide is sometimes attributed to the boat drivers. Manslaughter (article 589) is punished with a sentence of up to 5 years’ imprisonment, which can be increased up to 15 years if there are multiple victims. The second, “death as consequence of another crime” applies if, as a consequence of another crime of which the accused is found guilty, someone dies or is harmed even without the accused’s intention of doing so. In this case, the sentencing either follows that of manslaughter, or unintentional bodily harm (art. 590), but is increased due to the criminal context. Added to the punishments established by Article 12, the sentencing can become even harsher, and go all the way to life sentencing (as we see in the section on long-term prisoners).

​3. Criminal association and anti-Mafia law

All cases relating to Article 12 of the Immigration Act are marked for attention by the District Anti-Mafia Directorship (DDA), a specialist section of the public prosecutor’s office that is only present in specific local courts (determined by the presence of an appeal court: in Sicily they are in Palermo, Catania, Caltanissetta and Messina). When the crime of ‘criminal association’ is contested, the cases are dealt with directly by the DDA. The process that has led to the Anti-Mafia prosecutors taking such close interest in cases of facilitation of illegal immigration was neither straightforward nor inevitable; it was marked by a series of official notes, laws and decrees that represent in and of themselves important moments in the criminalization of migration.

The role of the Anti-Mafia prosecutors in Italy is to investigate and put on trial both national and international criminal organizations. The Italian criminal code establishes that the crime of criminal association (according to article 416) has been committed when 3 or more people conspire to commit a series of crimes, and is punished with sentencing of between 3 and 7 years imprisonment. The prosecutors that handle such cases are the DDA, so they are not distributed across all the different courts, in order to facilitate greater national coordination and repression of organized crime.

How did it happen that cases of migrant boat driving have garnered so much interest from Anti-Mafia prosecutors? What does immigration have to do with anti-Mafia legislation? The crime of facilitating illegal entrance does not necessarily include the accusation of criminal association, and even less of ‘Mafia-type’ criminal association. Nevertheless, almost since the very introduction of the Immigration Act in 1998, we note repeated attempts to hand the investigations and prosecution of cases of boat-drivers over to Italy’s anti-Mafia offices (i.e. the DDA, the DIA and the DNAA). The basic reason for this, it would seem, is that the Anti-Mafia prosecutors, even if they do not necessarily want to limit themselves to prosecuting the last links in the chain of smuggling – i.e. the boat drivers –, are involved in these cases to pursue all the information they can in order to try to reach the higher levels of the international smuggling of persons.

With the Palermo Convention in 2000 – which established the UN department on organized crime (UNDOC) – efforts were made to trace a single line connecting the smuggling and trafficking of persons with international organized crime. The proposal was that Italy’s experienced anti-Mafia prosecutors would serve as a model for the war on international trafficking in drugs, guns and human beings. With the ratification of the Palermo Protocol in the Italian parliament in 2006, Italian law involved the offices of the Anti-Mafia in a disturbing way, allowing the use of undercover police operations (article 9, Law 146/2006) in any investigation into the ‘aggravated’ crime of Article 12 of the Immigration Act, and passing over to the anti-Mafia prosecutors all the investigations with a ‘transnational’ character.

At least since 2010, following the increase in arrivals of migrant boats along the Calabrian and Apulian coastline, the anti-Mafia prosecutors began to take greater interest in the cases against boat-drivers. In this period, significantly, the cases appear to have been aimed less at prosecuting those who materially drove the boats, and more at uncovering the hierarchy of international criminal organizations.

In the Summer of 2013, the anti-Mafia prosecutors in Catania began to follow a series of cases of boat landings connected to the use of mother-ships crewed by Egyptians, even attempting to level accusations of criminal association (i.e. Article 416). At this point the anti-Mafia engagement became a national question, with a note from the national directorate (the DNAA) that tried to clear up the issue of jurisdiction, which was becoming a key problem in trials against the facilitation of illegal immigration. An Egyptian citizen accused of smuggling, who protested against the interventions of the Italian authorities in international waters, put it quite clearly (in words picked up in a wire-tap): “They can’t do it: they can come on board and do what they want there, but then they have to let them go.” In brief: up until 2013, the Italian police had no way of arresting crews on mother-ships operating in international waters.

To deal with this – and to ensure that the arrested would be imprisoned while awaiting trial – the national anti-Mafia directorate (the DNAA) constructed a long and complex argument about the existence of Italian jurisdiction in international waters, essentially proposing its own authority as the main body engaged in the war against international organized crime (we return to this in the following section).

In the same year, attempting to increase their chances of reaching the higher levels of organized crime, the anti-Mafia directorate requested that all ordinary courts communicate any information about cases of facilitating illegal immigration to the anti-Mafia prosecutors, in any instance where there was even potential for an accusation of criminal association.

This did not mean, however, that all cases were immediately assigned to the anti-Mafia prosecutors; e.g. many cases passed through the courts of Agrigento, Ragusa and Trapani. The attempts to pass the cases over the anti-Mafia offices continued in the following years: the ‘Minniti Decree’ of 2017 established that all cases of criminal association (art. 416) finalized towards the ‘aggravated’ facilitation of illegal immigration should be handled by the anti-Mafia prosecutors. Finally, in 2019, the so-called Second Security decree (under minister Salvini) handed over to the anti-Mafia prosecutors such cases even without aggravating factors (as well as re-enforced and provided financing for undercover police operations in Article 12 cases).

Until now, the accusation of criminal association has mainly been contested in relation to the ‘upper levels’ of smuggling organizations operating, for the most part, outside of Italy (representing a series of cases which are outside of the remit of this report). Yet even as recently as August and September this year, the DDA in Palermo and Cagliari are actively prosecuting cases focusing on suspected boat-drivers.

​4. National jurisdiction

Italy considers the crimes supposedly committed by boat drivers to fall under its own national jurisdiction, i.e. that they fall under Italian law, even when the transportation of migrants occurs on board a vessel without any national flag (i.e. without a country of registration), in international waters and when the only infraction that occurs in Italian waters is the actual entrance of migrants into Italian territory . The Italian supreme court decreed in 2014 that:

“As for illegal immigration, national jurisdiction applies even in the case in which the transportation of migrants, occurring in violation of Article 12 […] on board a vessel (in specific, a rubber boat with more than 100 people on board) without flag and, therefore, without pertaining to any country […] in international waters but, following this, the crime of entrance and landing of non-EU citizens has taken place in national waters through the intervention of rescuers, with a predictable and desired outcome due to the conditions of the boat, the excessive number of passengers and the conditions at sea.”

This means that the number of criminal cases against boat-drivers in Italy is extremely high – not only due to Italy’s geographic position but also because Italy actively tries to prosecute actions which, having taken place outside of Italy, it could potentially ignore.

The juridical approach has fundamentally been established by the Anti-Mafia document mentioned in the previous section. The logic is based on the concept of the ‘mediated author’ of the crime. This means that even if there are a range of actors in the “chain” of the crime, who perhaps did not want to commit it or contribute to it, their presence in the chain does not break the connection between the original act and the final effect. In our case, the actions of the crew on board the mother-ship remains a crime even if the final and eventual illegal entrance of migrants is committed by a rescue ship of some kind. For the Italian supreme court, a rescue ship simply represents “an essential and premeditated link in a well-planned chain of actions”. This remains the same for a naval ship, Frontex or an NGO.

The question of Italian jurisdiction over cases against boat drivers continues, however, to be contested in court, even if the supreme court – and the Italian government – seems to have taken a final decision. This applies not only in the cases described above, which focus above all on the relation between mother-ships and rescue ships, but is also important in relation to acts committed by non-Italian citizens in international waters, or at least non-Italian waters. That includes crimes other than facilitating illegal immigration – e.g. multiple homicide in the context of a shipwreck – in which even the victims are not Italian. Despite the many obstacles, Italy continues to defend its jurisdiction in such cases.