The Facilitators Package, penal populism and the Rule of Law: Lessons from Italy
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| DOI | 10.1177/2032284420946837 |
| Subject Matter | Special Issue Articles |
Special Issue Article
The Facilitators Package,
penal populism and the
Rule of Law: Lessons
from Italy
Marta Minetti
Queen Mary, University of London, UK
Abstract
The past 20 years have witnessed an increase in the attention that the international, national and
European policy responses have devoted to irregular immigration and transnational organised
crime, with the Facilitators Package being among the protagonists of the criminalising approach
adopted by the European legislator. More specifically, provision was drafted and ratified with the
aim to tackle irregular migration by strengthening the penal framework on the facilitation of
unauthorised entry within the European Union (EU) external borders in ‘the strict sense, and for
the purpose of sustaining networks which exploit human beings’. Nevertheless, although its
effectiveness in achieving the stated goals has been confirmed in the EU regulatory fitness per-
formance programme (REFIT) assessment by the EU commission released in 2017, the academic
judgment has taken a completely different direction, labelling the provision as exemplary of the
preventive role taken by EU criminal law. The aim of the article is to analyse the transposition of
the Facilitators Package by the Italian legislators and to examine its application within the national
legal framework, in order to scrutinise the consequences that the symbolic application of the
criminal law provision is having on the Italian jurisdiction in terms of Rule of Law (particularly on
the principle of legal certainty).
Keywords
Irregular migration, Facilitators Package, Italy, criminalisation of migration, penal populism,
prosecutorial populism, symbolic criminal law, migrant smuggling, facilitation of illegal entry, EU
criminal law
Corresponding author:
Marta Minetti, Queen Mary, School of Law, University of London, London E1 4NS, UK.
E-mail: m.minetti@qmul.ac.uk
New Journal of European Criminal Law
2020, Vol. 11(3) 335–350
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/2032284420946837
njecl.sagepub.com
NJECL
NJECL
Introduction
The past 20 years have witnessed an increase in the attention paid to irregular migration
within Europe’s external borders and Transnational Organised Crime (TOC) by international,
national and European policymakers. The legal context in which policy responses to this
phenomenon have been developed has been that of criminal law, following the global trend
of dealing with the issue of irregular border crossing through criminal rather than adminis-
trative legal tools.
1
On the European level, the Facilitators’ Package
2
and the Trafficking
Directives
3
have been among the protagonists of the criminalising ap proach adopted by the
communitarian legislator. In fact, the Facilitators Package, composed of Council Directive
2002/90/ECandtheFrameworkDecision2002/946/JHA, was drafted and ratified with the
aimoftacklingirregularmigration,‘bothinconnectionwithunauthorisedcrossingofthe
border in the strict sense and for the purpose of sustaining networks which exploit human
beings’,
4
through strengthening the penal framework on the facilitation of unauthorised entry
within the European Union’s (EU’s) external borders.
The European strategy to combat the facilitation of illegal entry has differentiated itself
from others through its focus on the prevention of irregular arrivals and on the crime of
facilitation of illegal entry. In fact, this crime is the explicit target of the Framework Decision
(dealing with the establishment and strengthening of the penal framework surrounding the
facilitation of illegal entry),
5
even though the provision is part of the emerging field of EU
criminal law – the ultimate function of which is, or should be, rehabilitative. For this reason,
although its effectiveness in achieving the stated goals has been confirmed in the REFIT
assessment by the EU commission released in 2017, the academic judgment has taken a
completely different direction, labelling the provision as exemplary of the preventive role
taken by EU criminal law.
6
More specifically, critiques of the Facilitation Directive, and of
the EU anti-smuggling framework, have taken into account its direct and indirect effects on
the provision of humanitarian assistance to irregular migrants,
7
as well as the shortcomings
1. Alessandro Spena, ‘A Just Criminalisation of Irregular Immigration: Is It Possible?’ (2017) 11 Crim Law and Philos
351.
2. Council Directive 2002/90/EC of November 2002 defining the facilitation of unauthorised entry, transit and residence
[2002] OJ L328/17; Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the
penal framework to prevent the facilitation of unauthorised entry, transit and residence [2002] OJ L 328/1.
3. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating
trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA OJ
L101/1.
4. Council Directive 2002/90/EC.
5. The full title of the Framework Decision 2002/946/JHA is ‘Council framework Decision of 28 November 2002 on the
strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence’.
6. Valsamis Mitsilegas ‘The Changing Landscape of the Criminalisation of Migration in Europe: The Protective Function
of European Union Law’ in Maria Joao Guia, Maartjevan der Woude and Joanne van der Leun (eds), Social Control and
Justice in the Age of Fear (Eleven International Publishing, The Netherlands 2012).
7. Jenn ifer Allsopp and Maria Giovanna Manie ri, ‘The EU Anti-Smuggling Framework : Direct and Indirect Effects
on the Provision of Humanitarian Assistance to Irregular Migrants’ in Sergio Carrera and Elspeth Guild (eds),
Irregular Migration, Trafficking and Smuggling of Human Beings (Centre for European Policy Studies, Brussels
2016).
336 New Journal of European Criminal Law 11(3)
To continue reading
Request your trial