HvJ EU : prejudiciele vraag over criminalisering hulp bij illegale binnenkomst

The case concerns OB, an adult woman of Congolese origin who brought two girls of 8 and 13 into Italy (most likely her daughter and niece) with false Senegalese passports. In doing so, she violated the Italian law on “facilitating the unauthorised entry of foreign nationals” onto Italian territory and was arrested and charged. The two minor girls were placed into a reception facility. Following this, OB stated that she had fled the DRC to escape her ex-partner, following death threats levied against her and her family members by him after the relationship broke down. OB later completed an application for international protection in October 2019 – at the time of lodging the application, that procedure had still not concluded.
Under Italian legislation, this conduct makes OB a criminal. Yet, the referring court noted that some EU Member States including Finland, Belgium and Spain have “humanitarian exceptions” to criminal liability. It also referred to the possibility that someone may violate the terms of the Italian law forbidding facilitating unauthorised entry of foreign nationals, while simultaneously vindicating those persons’ rights under the Charter, inter alia the rights to life, physical integrity and asylum.
Therefore, the questions posed by the referring court are:

  • Do the Charter rights enshrined in Articles 2, 3, 6, 7, 17, 18, and read in conjunction with the proportionality principle laid down in Article 52(1), preclude the Italian legislation criminalising those who facilitate illegal entry of aliens to the country – even where this is conducted on a not-for-profit basis – without providing for a “humanitarian assistance” defence in criminal law?
  • Do the Charter rights above preclude the provisions of Directive 2002/90/EC and Framework Decision 2002/946/JHA that oblige Member States to criminalise those who facilitate illegal entry of aliens to the territory of the Union – even where this is conducted on a not-for-profit basis – without providing for a “humanitarian assistance” defence in criminal law?

HvJ EU C-460/23 (Kinshasa), 8.9.23.
https://curia.europa.eu/juris/liste.jsf?num=C-460/23