Angelo Marletta*
* FNRS Post-doctoral Research Associate at the Centre
de Droit Européen of the Université Libre de Bruxelles. I am
grateful to Prof. Chloé Brière for her valuable remarks and suggestions.
1. Background
On 23 September 2020 the European Commission presented its ‘Guidance
on the implementation of EU rules on definition and prevention of the
facilitation of unauthorised entry, transit and residence’ within the New
Pact on Migration and Asylum (a first analysis of the main components of
the Pact has been made by Steve Peers here).
As part of the New Pact, the 'Guidance' intends to
translate into soft law the clear statement by President von der Leyen in her 2020 State of the Union address
that “saving lives at sea is not optional” and to follow up on a 2018 Resolution of the European Parliament
calling for guidelines to prevent
humanitarian assistance from being criminalised.
As a matter of fact, the establishment of criminal
proceedings against citizens and volunteers of NGOs who had assisted, in different
ways, migrants and asylum seekers for humanitarian motives has been a hot topic
of debate in recent years. The issue was not entirely unprecedented but since the
inception of the so-called ‘migration crisis’ in 2015, these proceedings seem
to have occurred more frequently than in the past, revealing the potentially far-reaching scope
of criminalisation of the EU legal instruments on the facilitation of irregular migration: Directive
2002/90/EC and the Framework
Decision 2002/946/JHA (collectively known as the ‘Facilitators Package’). These
two instruments have been criticised on that point by several academic studies,
reports from think tanks and civil society organizations as well as by the EU
Fundamental Rights Agency starting from its first thematic report in 2014. At
first, the European Commission appeared well aware of such criticisms when, in
the context of the EU
Action Plan Against Smuggling (2015-2020), announced a revision of the ‘Facilitators
Package’ in 2016. However, eventually this did not happen. In 2017 the
Commission in its ‘REFIT
Evaluation’ of the Package concluded that there was insufficient evidence
to support a legislative revision. The problematic cases of prosecution against
individuals acting for humanitarian purposes had rather to be considered as an ‘unintended
consequence’ to be addressed through a ‘reinforced exchange of knowledge and
good practice’.
This wish did not materialise, as just in July 2020 the EU
Fundamental Rights Agency reported several criminal proceedings against crew
members and shipmasters of NGOs operating search and rescue missions in the
Mediterranean. Still today the new Commission
‘Guidance’ seems to acknowledge that the ‘perceived lack of legal certainty’ surrounding
the EU ‘Facilitators Package’ has not yet been dispelled.
Against this background and following a quick overview of
the relevant legal framework, this contribution will analyse the new 2020 Commission
‘Guidance’. It will in particular discuss how the document can do little to
remedy the legal uncertainty on humanitarian assistance to migrants, which potentially
violate the principle of legality of offences in criminal matters.
2. Smuggling of
migrants under the UN Protocol
As the Commission ‘Guidance’ also recalls, the main
international instrument providing a definition of smuggling of migrants is the
United
Nations Protocol against Migrant Smuggling by Land, Sea and Air which
supplements the 2000
UN Convention against Transnational Organised Crime (UNTOC). Adopted in
2000, this instrument requires its Parties to criminalize the
procurement of irregular entry and the enablement of irregular residence when
committed intentionally and ‘in order to obtain, directly or indirectly, a
financial or other material benefit’.
The purpose of a ‘financial or other material benefit’ is
probably the constitutive element that most characterizes criminologically the
definition of smuggling in the context of the fight against organized crime: accordingly,
under the Protocol the procurement of irregular entry and the enablement of
irregular residence is not relevant per se, but as expression of a profitable
‘criminal business model’. Most importantly, the ‘financial or other material
benefit’ performs a function of ‘selection’ of the type of conduct to be
criminalized according to the Protocol, by excluding from the scope of the
offence actions inspired by humanitarian, ideological reasons or based on close
family ties. This is notably confirmed by the Travaux
Préparatoires of the Protocol and a 2017 ad
hoc Concept Paper released by the United Nations Office on Drugs and Crime
(UNODC). Nonetheless, the Protocol does not seem to prevent its States Parties
from adopting broader definitions of smuggling, f.i., by not including as a
basic element of the offence the pursuit of a financial or other material
benefit. Art. 34 par. 3 of the UNTOC Convention - which applies also to the
Protocol – in fact, preserves the right
of the State Parties to adopt ‘more strict or severe’ standards for preventing
and combating transnational organized crime, potentially creating a layer of
normative ambiguity at level of international law.
3. ‘Facilitation’
under The EU’s Facilitators’ Package
As previously mentioned, under EU Law, the criminalization
of smuggling and facilitation of irregular residence is the object of two
complementary legal instruments dating back to 2002 known as ‘Facilitators
Package’. Adopted under the
institutional framework of the Treaty of Amsterdam, the ‘Facilitators Package’ is
composed of a Directive laying down the definition of ‘facilitation’ and a
Framework Decision setting out criminal penalties, aggravating circumstances,
rules on jurisdiction and on the liability of legal persons. Under the general
infringement of facilitation, the Directive defines and requires the
criminalization of two separate intentional offences:
a) assisting a third country national to irregularly enter
or transit across the territory of a Member State
b) assisting, ‘for financial gain’, a third country national
to irregularly reside in the territory
of a Member State.
Differently from the UN Protocol, the EU definition requires
the constitutive element of ‘financial gain’ for the facilitation of
unauthorized residence but not for the basic definition of facilitation of
unauthorized entry and transit. Altruistic or compassionate acts of
‘humanitarian assistance’, therefore, may potentially be attracted in the scope
of application of the offence of facilitation of entry and transit. In regard
to this latter, however, the same Directive provides for an optional ‘humanitarian
exception’ leaving its implementation at the discretion of the Member States. According
to art. 1 para 2 of the Directive, Member States ‘may decide not to impose
sanctions’ when the facilitation of unauthorized entry or transit was aimed at
providing humanitarian assistance. The optional nature of the humanitarian
exception has been questioned from several commentators for both its inability
to safeguard the humanitarian principles which supposedly inspire it and for
its lack of added value in approximating national criminal laws (see f.i.
Peers). It is not surprising, thus, that only a few Member States (BE, EL, ES,
FI, HR, IT, MT) have expressly implemented the exception in their national
legal frameworks with significant differences as to its scope of applicability.
As a way of example, the Italian humanitarian exception - recalled also in the
Commission ‘Guidance’ - exempts from
criminalisation acts of humanitarian assistance in favour of migrants who are
already ‘present’ on the Italian territory, therefore, raising doubts as to its
applicability in the case of facilitation of entry.
4. The Commission Guidance:
overview of the contents
The ‘Guidance’ is an interpretative tool that, according to
the Commission, is intended to provide ‘greater clarity’ on the scope of
application of the Facilitation Directive.
Its contents can be summarised around three main conceptual blocks:
-
The relationship between the UN Protocol on
Smuggling and the EU Facilitators Package
-
The scope of application the offence of
facilitation of irregular entry and transit vis à vis humanitarian assistance
‘mandated by law’
-
A policy recommendation on the optional
humanitarian exception
As for the relationship between the UN Protocol and the
‘Facilitators Package’, the Commission recalls the broader objective of the
latter. The general objective of the EU legal framework on facilitation indeed
would be twofold: on the one hand, similarly to the UN Protocol, the fight
against organised crime, on the other, the fight against irregular migration. Hence,
according to the Commission, the broader scope of criminalisation resulting
from the non-inclusion of the purpose of gain in the basic definition of the
offence of facilitation of entry and transit would not be in contrast with the
definition of the UN Protocol, but rather an expression of the additional (and
broader) objective of fighting against irregular migration.
Such broader scope of application of the offence of facilitation
of entry and transit, however, must be read in light of the ‘general spirit
and objective’ of the Facilitators Package and cannot be construed as to imply
the criminalisation of humanitarian activity that is ‘mandated by law’. According
to the Commission, a specific example of such kind of humanitarian activity is
represented by search and rescue (SAR) at sea, since SAR obligations are
‘mandated’ by the Law of the Sea, under several international conventions (the
UN Convention on the Law of the Sea, UNCLOS, the International Convention for
the Safety of Life at Sea, SOLAS, the International Convention on Maritime
Search and Rescue, SAR Convention), and by customary international law. As such, according to the Commission, the
criminalisation of NGOs or any other non-state actors that carry SAR operations
in compliance with the relevant legal framework cannot be allowed by EU Law. This
applies ‘regardless how the Facilitation Directive is applied under national law’,
or in other terms irrespective of whether the Member State implemented or not the
‘humanitarian exception’.
In regard to the optional humanitarian exception, the
Commission has, first of all, provided an overview of the national rules that
explicitly implemented the exception and stressed that, in this context, it is for
the national authorities to determine what is meant by ‘humanitarian assistance’,
taking into account all the circumstances of the case, and to strike the right
balance between the different interests and values at play (recalling the ECtHR
case Mallah
v. France). As for the Member States that did not implement the exception,
the Commissions addresses, as a Policy Recommendation, the invitation to use
the possibility provided by art. 1 para 2 of the ‘Facilitation Directive’.
5. A mere problem of
implementation or a problem of legality?
As an effort to gradually approach a complex issue in a
difficult political scenario, the Commission ‘Guidance’ it is certainly to be
welcomed, but it cannot be regarded as the ‘final word’ of the EU on the matter.
Firstly, the 'Guidance' seems mostly - if not only - focused
on cases of humanitarian assistance 'mandated by law' and, in particular, to
cases of rescue at sea. Surely, the proceedings against NGOs and individuals conducting
private SAR operations represent the most striking example of criminalization
of solidarity, but they do not exhaust the hypotheses of ‘humanitarian
assistance’ we have witnessed in recent years. The humanitarian 'facilitation'
of the entry or transit by land clearly does not benefit from the ‘primacy umbrella’
of the Law of the Sea, while the definition of what should be intended as ‘humanitarian
assistance mandated by law’ – beyond SAR obligations – remains at least ‘anodyne’.
The law, normally, does not prescribe any obligation to donate food or provide shelter
to an irregular migrant in transit and yet such a circumstance would not detract
anything from the humanitarian nature of such conduct.
Secondly, the invitation to all the Member States to ‘use
the possibility’ of the optional humanitarian exception foreseen in the
Directive, sounds not very satisfactory insofar as it still seems to address the
problem as a mere matter of implementation. In contrast, from a criminal law
point of view, the problem of the ‘Facilitators Package’ seems to be more and
more one of legality, or rather, a problem related to the way of understanding
the principle of legality in substantive criminal law. The use of ‘discretionary’
or ‘optional clauses’ in instruments of secondary EU law aimed at approximating
substantive criminal law, indeed, might raise questions as to their compatibility
with the principle of legality of offences provided in Article 49 of the
Charter of Fundamental Rights.
Even taking into account the peculiar nature of directives
as instruments requiring a national transposition and the limited Union’s
legislative competence in that area (art. 83 paras 1 and 2 TFEU), the core of
the principle of legality would still require the EU legislator to provide a
clear description of the punishable conduct and a reasonable consideration of
the interest(s) protected by the offence. In the case of the ‘Facilitators
Package’, affirming that an act of 'facilitation' inspired by a humanitarian or
altruistic purpose may or may not be criminalised at the discretion of a Member
State does not simply entail an implementation option, but rather a completely
different balance between the legal interests at stake and, ultimately, a
different characterisation of the punishable conduct. In fact, while such an
action, determining the irregular entry or transit of the migrant, may affect
the legitimate interest in effective border control, on the other hand, it may concretely
prevent an harm to the life or to the human dignity of an individual, competing
legal interests which are also protected by primary Union law.
The reluctance of the EU legislator to determine a baseline
balance between these competing legal interests, leaving it to the discretion
of the Member States, sits uneasily with the understanding of the principle of
legality in the domain of substantive criminal law. This issue was unresolved
at the time of adoption of the Facilitators’ Package, determining a structural
flaw in the EU definition of the offence of facilitation that cannot be
remedied at the level of the interpretation, but only through a legislative
revision.
In conclusion, whilst the ‘Guidance’ constitutes a
commendable reminder of the law applicable to humanitarian assistance, it is to
be hoped that in the near future the Commission will also consider using its
power of legislative initiative to align the EU legal framework with
international law and the Charter. Its hesitation to engage in the matter at
the level of ‘hard law’ on a hard law level, despite its announcement in 2015,
echoes to the restrained approach it pursues in other parts of the New
Migration Pact and reflects the political sensitivity of the issue of
humanitarian assistance to migrants, unfortunately, still perceived by some Member States and
parts of the European public opinion as a crime deserving to be punished.
Barnard & Peers: chapter 26
JHA4: chapter I:7
Photo credit: Sky News
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