On March 10, 2022, the Italian Constitutional Court issued Decision No. 63 declaring the unconstitutionality of article 12, paragraph 3(d) of Legislative Decree No. 286 of July 25, 1998, containing the Consolidated Text concerning Immigration and the Condition of Foreigners (L.D. No. 286), which had established an aggravating circumstance for the crime of using forged passports to enter Italy.
In the underlying case, the Ordinary Tribunal of Bologna raised a constitutional legitimacy question concerning article 12, paragraph 3(d) of L.D. No. 286, which had established the aggravating circumstance of using international transportation services in conjunction with the offense under article 497-bis of the Criminal Code of presenting false or illegally obtained documents to enter Italian territory. (Decision, Statements of Fact, No. 1.)
The tribunal was asked to adjudicate the criminal responsibility of a Congolese defendant for the crime of possessing false identification documents when she attempted to enter Italian territory from Casablanca, Morocco, via the Bologna airport. At the Bologna airport, the defendant presented false Senegalese passports for herself and for two minors accompanying her. (Decision, Statements of Fact, No. 1.1.)
The tribunal considered arguments by the counsel of the defendant stating that the aggravating circumstance of “using a false identification document” or “counterfeit or altered or otherwise illegally-obtained documents” while using “international transportation services” increased the basic penalty of incarceration for the alleged crime to five times its minimum and three times the maximum. (Decision, Statements of Fact, No. 1.2, paras. 1–2.) The defense argued that such rigidity of the penalties was designed for crimes involving aiding and abetting irregular immigration for for-profit purposes — that is, in the case of smugglers of migrants — or for situations involving danger to life or physical integrity, human or degrading treatment, exploitation, or the use of explosive or weapons, none of which occurred in the underlying case. (Decision, Statements of Fact, No. 1.2, paras. 3–4.)
The Attorney General of Italy defended the challenged legal provisions on the grounds that the overall purpose of the legislation was to discourage illegally entering, transiting, and residing in the national territory, in accordance with international and European Union (EU) treaties tackling the problem of the illegal smuggling of human beings. (Decision, Statements of Fact, No. 3.1, para. 5.)
Reasoning of the Constitutional Court
The Constitutional Court considered whether the challenged provision containing the aggravating circumstance could result in a violation of the principles of equality and reasonableness enshrined in article 3 of the Italian Constitution and of the proportionality of criminal penalties under articles 3 and 27 of the Constitution. (Decision, Statements of Fact, No. 1.)
In this context, the Constitutional Court reasoned that the crime of “facilitating illegal immigration” was first introduced in Italy through Decree-Law No. 416 of 1989, on Urgent Regulations on Political Asylum, Entry and Residence of Non-EU Citizens and Regularization of Non-EU and Stateless Citizens Already Present in the State Territory, in order to punish actions directly aimed at aiding and abetting the entry of foreigners into the national territory in violation of the law. (Decision, Statements of Law, No. 3.1, para. 1.)
At this point, the court recalled that the aggravating circumstance of “using international transportation services or false or illegally obtained documents” had been introduced by legislation only in 1998 and that, consequently, the legislative history concerning immigration reforms in Italy showed that the penalties have been established for crimes depending on whether the punished actions have been carried out with or without profit as a motive. (Decision, Statements of Law, No. 3.2, para. 3; No. 3.4, para. 5.)
Furthermore, the court noted that international treaties, including the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Human Beings, Especially Women and Children (Palermo Protocol), require that the conduct punished be carried out “for purposes of profit” or “economic or material advantages.” (Decision, Statements of Law, No. 3.7.1.) The court also mentioned that the 1990 Convention Implementing the Schengen Agreement of 14 June 1985 and other EU legislation (e.g., Council Framework Decision of 28 November 2002) corroborate this approach, leaving member states to decide how to implement such international obligations. (Decision, Statements of Law, No. 3.7.2.)
The court recalled its own jurisprudence on the constitutional prohibition on disproportionate criminal punishment vis-à-vis the objective and subjective seriousness of the crime. (Decision, Statements of Law, No. 4.1, para. 2.) The court mentioned that the ultimate value protected by the criminal legislation under review is tackling the problem of uncontrolled immigration, which can compromise the balance of the labor market, create undue pressures on the social security system, or undermine public order and safety. (Decision, Statements of Law, No. 4.2, para. 1.)
Finally, the court considered that the behavior of the criminal defendant in the case under review did not represent a particularly insidious mode of conduct or was such as to create special difficulties for the border police to ascertain the situation. (Decision, Statements of Law, No. 4.4.1, para. 2.) The court held that the appropriate punishment would be equivalent to that established for the crimes of counterfeiting or altering residence permits or other documents related to the legitimate presence of foreigners in the national territory, or the crime of possessing and manufacturing false documents valid for expatriation, all of which carry a maximum punishment of five years of incarceration. (Decision, Statements of Law, No. 4.4.2, para. 4.)
Decision of the Court
Consequently, the court declared the unconstitutionality of the phrase “or using international transport services or forged or altered documents or in any case illegally obtained” in article 12, paragraph 3(d) of L.D. No. 286 of 1998, thereby eliminating this aggravating circumstance concurrent with the crime of presenting false or illegally obtained documents on entry into Italian territory.