THE KINSA CASE: FREEDOM OF MOVEMENT VS FORTRESS EUROPE

For the first time, after more than 20 years without being amended, European laws criminalising the “facilitation of unauthorised migration” are probably about to be changed. What we do not yet know is in which direction. While activists for the freedom of movement are working to ensure that these laws stop imprisoning people on the move, and recently achieved a landmark victory by bringing the Kinsa case before the European Court of Justice, European institutions are intensifying efforts to punish freedom of movement even harshly.

In the upcoming months we will see what the balance of power is. The changes to the facilitation laws will largely define not only the fate of the thousands of people on the move who are being imprisoned each year on these charges, but more broadly the ease with which state authorities can violate the fundamental rights of people on the move at Fortress Europe’s borders.

Facilitation laws: an instrument of European migration necropolitics

Although on paper facilitation laws seek to criminalise “smugglers”, in practice they end up mainly imprisoning people on the move themselves. Accused of steering boats or vehicles during border crossings, but also for operating GPS on the vehicle or making emergency calls in case of distress, thousands of people on the move are accused and incarcerated in the EU every year. The same laws have also been used to criminalise activists and organisations working in border areas to defend people’s rights.

International law, notably the UN Smuggling of Migrants Protocol and the Refugee Convention, indicate that neither people seeking safety themselves or their families, nor humanitarian actors, should be the target of facilitation laws. As a tool to prevent the criminalisation of these groups, they require facilitation to occur in exchange for a financial or material benefit (FOMB) to be considered a crime. Contrary to international law, the Facilitators’ Package, which in 2002 introduced the crime of ‘facilitation of unauthorized migration’ in Europe, lacks provisions to exempt migrants, their families, or humanitarian actors from criminal liability. It also does not require financial or material benefit (FOMB) as a necessary element to consider facilitation as a crime. European legislation only includes a timid mention of the humanitarian clause, which member states can adopt on a voluntary basis.

The devastating consequences of facilitation laws have been met with criticism and resistance from activists and human rights organisations for years. Some of these groups have gone beyond pointing out the problems related to the exclusion of particular groups from criminalisation, directly supporting the people affected and putting forward new narratives that understand the facilitation of irregular migration as an essential activity in guaranteeing the rights of people on the move.

After more than 20 years since the Facilitators’ Package was introduced, the arrival of the Kinsa case at the European Court of Justice (CJUE) has given rise to some optimism. For the first time, these laws are now under review in EU’s highest court, in what could be a historic step for the movement towards the decriminalisation of facilitation.

Picture: Banner out of the Trapani Court, the day the iuventa case was closed (19.04.24). iuventa and Captain Support Network.

The Kinsa case: a summary

The case

In May 2023, lawyer Francesca Cancellaro requested a preliminary ruling from the European Court of Justice (CJUE) in the trial against O.B. in the court of Bologna (Italy). O.B. is a woman of Congolese origin who arrived in Bologna by air to Italy together with her daughter and niece, both minors. O.B. was accused of ‘facilitating the unauthorised entry’ of the girls, after which she was arrested and separated from them. Unfortunately, O.B.’s case is one of thousands of cases every year in which European countries criminalizes facilitation, devastating the life of those seeking safety. But the case against O.B., known as the Kinsa case (formerly the Kinsasha case), is the first one that managed to confront the illegality and illegitimacy of facilitation laws.

On 17 July 2023 the Court of Bologna requested in the context of the Kinsa case a preliminary ruling from the CJEU on the validity and interpretation of the EU Facilitators’ Package, as well as of the Italian law implementing it, Article 12 of the Consolidated Immigration Act.

Picture: Hearing of the Kinsa case at the European Court of Justice. Giansandro Merli

The arguments

In the arguments submitted to the CJEU, Cancellaro questions the validity of the two pillars of the Facilitators’ Package:

(i) the obligation to criminalise the facilitation of entry without requiring a profit motive as a constituent element of the offence,

(ii) the fact that it does not oblige EU Member States to apply a “humanitarian exception”, but leaves it to the discretion of the Member States.

In addition to the direct consequences on those criminalised, Cancellaro argues that the risk of criminal sanctions for supporting migrants has a ‘chilling’ or ‘deterrent effect’ on activists and organisations. In a context of systematic institutional violence against people on the move at borders, a reduction of support for activists and organisations, which often involves safeguarding fundamental rights such as rescue, food, medical or legal assistance, jeopardises fundamental rights.

Therefore, Cancellaro argues that both pillars of the Facilitators’ Package entail the structural violation of the fundamental rights of people on the move and their supporters as enshrined in the European Charter of Human Rights, such as the right to life (Article 2 ECHR), physical integrity (Article 3 ECHR), asylum (Article 18) family life (Article 7), personal liberty (Article 6) or property (Article 17). In short, this structural conflict is a reflection of the permanent contradiction between human rights and the protection of national borders in which, as Cancellaro explains, the former must prevail.

The hearing

The hearing before the Grand Chamber of the CJEU, where the parties concerned presented their arguments, took place on 18 June. In addition to Cancellaro, representatives of the Italian and Hungarian governments, as well as the European Commission and the Council participated. The hearing of the Kinsa case at the Grand Chamber was irrefutable proof of the impossibility of defending the legitimacy and legality of the European facilitation laws.

None of the parties dared to argue the inherent conflict raised by Cancellaro, but instead sought shortcuts to escape the substantive debate. An analysis of the hearing, including a response to each of the positions presented by the parties, can be found in Zirulia (2024a). [1]

The European Commission proposed an interpretation of the laws that seemed tailor-made for the Kinsa case. The Commission proposed an interpretation of the current Facilitators’ Package according to which the act of facilitating requires a relationship of otherness/thirdness between the facilitator and the facilitated person. Thus, they argued that O.B. should not have been charged with facilitating the unauthorised entry of her minor daughter and niece, although there is no basis to support this interpretation of the current Facilitators’ Package.

The Hungarian government and the Council argued that the role of European legislation is to set minimum standards, while the obligation for laws to be in accordance with the European Charter of Human Rights lies in the hands of national legislators. A consideration contested by Zirulia (2024a).

The Italian government, whose role was the most complex, since its national laws were being called into question, was unable and unwilling to defend itself. Its representative merely indicated that Italian facilitation laws follow the direction set by the Facilitators’ Package.

He pointed out that although the humanitarian clauses are voluntary, Italy decided to implement them (forgetting to mention that this clause is not applicable for the facilitation of entry, but only for residence and transit). He added that Italy already has mechanisms in place to exempt certain groups from being criminalised regardless of the humanitarian clause, such as the notion of ‘state of necessity’ in article 54 of the Penal Code (without mentioning that this claim can only be applied during the trial, which does not avoid the negative consequences of being prosecuted, as the case of O.B. demonstrates.).

Next steps

The outcome of the Kinsa case will be known in the coming months. While the Advocate General of the CJEU will present his opinion on 5 November 2024, the final judgment of the CJEU is expected by the end of 2024/beginning of 2025. The possible outcomes are manifold. The CJEU could validate the laws, i.e. endorse them as in conformity with the EU Charter of Fundamental Rights. But it could also declare the laws invalid or invalidate specific provisions of the laws. Lastly, the court could propose a specific interpretation of the laws. It seems clear that in both scenarios the outcome of the case will have consequences for the review of the Facilitators’ package currently underway at the European institutions.

Fortress Europe reacts

Authors such as Mitsilegas (2024)[2] or Zirulia (2024b)[3] argue that the landing of the Kinsa case at the CJEU increased the pressure on the European institutions to present a proposal of modification to the Facilitators’ Package. In November 2023, the European Commission presented its proposal for amendment and in May 2024 the European Council published its redraft. The positions of both European institutions can be analysed with reference to the two pillars highlighted in the Kinsa case:

on the ‘humanitarian clause’:

The Commission proposal provides for fewer safeguards against criminalisation of humanitarian assistance and solidarity than the current Facilitators’ Package, moving references to possible humanitarian clauses from the legally binding text to the non-binding one. On the contrary, the Council’s proposal suggests the introduction of a mandatory humanitarian clause in article 3, as it ‘could provide more clarity and legal certainty about the distinction between facilitation of unauthorised migration and humanitarian assistance’.

on the FOMB as a constituent element of the offence:

While the Commission’s proposal did not explicitly exempt people on the move or their family members, it included a tricky mention of the financial or material benefit (FOMB). Indeed, while the FOMB was included in the definition of the offence, the proposal states that this will not be a necessary requirement in case of a ‘high probability of causing serious harm’ to a person. If on the one hand the fact that the offence of ‘serious harm’ is not clearly defined leaves a wide margin for interpretation, on the other hand the very same conditions of border crossings (often in overcrowded and unseaworthy vessels) could be considered as a potential risk of harm to travellers. The Commission’s proposal therefore entailed a high exposure to criminalisation for people on the move.

If the Commission’s proposal regarding FOMB appeared to be tricky and incomplete, the redraft presented by the European Council, published on 31 May 2024, left no room for doubt. The Council removed the reference to the FOMB as an element of the facilitation offence and the existence of the FOMB would only be considered as an aggravating circumstance. Ultimately, the Council proposes to maintain a definition of facilitation similar to that of the current Facilitators’ Package.

It is revealing to take a look at the main argument on which the Council relies to reject the introduction of material benefit (FOMB) as an element of the facilitation offence. The Council explained in detail during the hearing of the Kinsa case in the CJEU how, already in the negotiations of the Package in the 2000s, it was agreed to omit the mention of the FOMB, in order to make it possible to prosecute ‘smugglers’. On the grounds that it is difficult to prove that there has been an economic benefit, and arguing that the strategy of the “smugglers” would be to claim that they themselves were asylum seekers in order to avoid prosecution, the Council refused to include exemption clauses or the existence of the FOMB in the definition of the offence. The same arguments are still used today.

It’s astounding that the only argument in support of the European institutions’ position to continue criminalising migrants and their families, remaining contrary to international law, is the difficulty of obtaining incriminating evidence. It’s shocking to think that these laws have controlled the lives of thousands for over 20 years. Sadly, the systematic violation of the fundamental rights of people on the move is the rule rather than the exception.

On the crossroad

There are still many elements to be determined in the coming months. While the opinion issued by the European Court of Justice in the Kinsa case will affect the final outcome, the European Parliament has not started work on the proposal and an agreement should be reached in the so-called triad negotiations, which include the European Commission, Council and Parliament. However, with the information available so far,However, with the information available so far, it seems far more likely that a binding humanitarian clause will be adopted than the inclusion of safeguard clauses for people on the move and their families

Although a courageous decision by the Court could yet turn the tide, this first impression of an asymmetry between the willingness to protect white activists over people on the move is not surprising. It is just another expression of Europe’s deep racist and colonial foundations. Something that involves us all. As we know, mobilisation in solidarity with white activists has been far greater than in the cases of people on the move, despite the fact that it is the migrants themselves who are most affected, as well as the only ones to be convicted and imprisoned.

But changes don’t come from the institutions, but through political power from below. Facilitation laws have been shattering lives for more than 20 years and have been used to remove witnesses of state violence against people attempting to cross borders and to deter those who stand in solidarity with them. In the coming months we have the opportunity to organise ourselves to dismantle them. It is time to give it visibility, to put the consequences and perspectives of people on the move at the centre and to remember that migration is a right, so facilitating it should be an obligation.

Inés Marco – Kinsa campaign

Website – https://kinsa-case.eu

[1] Stefano Zirulia (2024a) “The ‘délit de solidarité’ before the Grand Chamber of the EU Court of Justice Reflections in the Aftermath of the Kinsa Case Hearing (C-460/23)” https://eulawlive.com/op-ed-the-delit-de-solidarite-before-the-grand-chamber-of-the-eu-court-of-justice-reflections-in-the-aftermath-of-the-kinsa-case-hearing-c-460-23/

[2] Valsamis Mitsilegas (2024) “Reforming the ‘Facilitators’ Package’ through the Kinsa litigation: Legality, Effectiveness and taking International Law into account” https://rivista.eurojus.it/reforming-the-facilitators-package-through-the-kinsa-litigation-legality-effectiveness-and-taking-international-law-into-account/

[3] Stefano Zirulia (20024) “Les enfants de la Clarée: why the Facilitators package is incompatible with the Charter of Fundamental Rights” https://blogs.law.ox.ac.uk/border-criminologies-blog/blog-post/2024/09/les-enfants-de-la-claree-why-facilitators-package

Cases:

PEOPLE ON THE MOVE: