The European Court of Justice (ECJ) has been asked to consider an Italian case, from Bologna District Court, relating to whether or not a Congolese woman should be held criminally liable after she brought her daughter and her niece into Italy using false passports, allegedly for humanitarian reasons.

On November 7, the French Advocate General at the ECJ, Richard de la Tour, issued his opinion on the case filed in July 2023. Documents issued by the court explain that the request was submitted by the Italian judicial authorities, after criminal proceedings were initiated against the Congolese national.

This question, of whether it should be a criminal offense under EU law for a person to provide assistance to a third-country national for the purposes of unauthorized entry into the territory of a member state, when acting out of compassion, altruism or solidarity, with a humanitarian purpose or because of family obligations, has given rise to a lively debate not only in civil society, but also within European and international institutions since the adoption of a Council Directive in November 2002, which defined the facilitation of unauthorized entry, transit and residence.

Now, De la Tour has confirmed that in his opinion, the directive's terms are "fraught with ambiguity." Because of this, he believes in this particular case, they should be interpreted to allow for the "possibility of exonerating someone from criminal liability, where that act pursues a humanitarian purpose."

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Liability and possible penalties?

The woman in question, helped two members of her family, stated the court, her daughter and her niece, using false passports. She was subsequently charged with the offense of facilitiating unauthorized entry into Italy, in conjuction with the offense of holding false identity documents.

The Italian court wanted the ECJ to consider whether or not the woman could be held criminally responsible given her relationship to the two she brought in, as well as to question what kind of penalty might be applied to the woman.

The ECJ website states, the directive in question provides "that member states may refrain from imposing penalties where such assistance is provided for a humanitarian purpose. Pursuant to that directive," it notes, "Italian law criminalizes the facilitation of unauthorized entry, irrespective of whether there is financial gain."

Currently, under Italian law, the woman could be sentenced to between two and six years' imprisonment, a fine of a fixed amount of 15,000 euros per person concerned, and appears to allow those penalties to be cumulated.

Fled Congo after threats, afraid female children would be harmed

In statements, the defendant said that she had fled Congo after being threatened by her former partner and that she had taken the two female children with her because she had been afraid they would have been harmed if she had left them there.

The opinion, the ECJ noted, found "nothing to affect the validity" of the 2002 directive, "from the point of view of the principle of the legality of criminal offenses and penalties," as enshrined in Article 49(1) of the Charter of Fundamental Rights of the European Union."

However, it added, since "that directive cannot, on its own, give rise to criminal liability for individuals, it is for the member states to implement that criminalization by national legislation which is proportionate and endowed with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty."

"It is also for the member states to set out, in accordance with their own criteria for incurring criminal liability, the extent to which a person may, in the light of the circumstances of the case, benefit from an exoneration," it stressed. Moreover, it added, "the court does not have sufficient information concerning the scope of the grounds of exoneration from criminal liability or of exemption from, or reduction in, sentence which may be provided for by the Italian legislation."

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'Differentiate between humanity and criminal intent'

In his statements, the advocate general, however, "points out that the principle of proportionality would preclude a national system that would not allow a court to balance the interests at stake and ensure that the sentence fits the specific case," the ECJ added.

"In particular, a national court must be able to differentiate between the criminalization of a person who has acted out of humanity or necessity and that of a person who is motivated solely by the criminal intent to commit for financial gain the very act prohibited by law," it stressed.

"The advocate general's opinion is not binding on the Court of Justice. It is the role of the advocates general to propose to the court, in complete independence, a legal solution to the cases for which they are responsible. The judges of the court are now beginning their deliberations in this case. Judgment will be given at a later date," it concluded.