Building Limits to the Over-criminalisation of Facilitating Irregular Migration : The Kinsa case

This Chapter critically addresses the offense of facilitating irregular migration, as provided by EU law and implemented by Italian criminal law, from the perspective of the principle of proportionality, regarded as an effective limit to overcriminalisation. Arguments are built around a case of a Congolese woman charged with facilitating the illegal entry of her daughter and her niece, both minors at the relevant time. The case has triggered the intervention of both the Italian Constitutional Court, which ruled on the disproportionality of the penalty, and the European Court of Justice (C-460/23, Kinsa), which ruled on the disproportionality of the criminalisation itself. These rulings look crucial for the European debate on the limits to legislative discretion in the fight against smuggling of migrants, a particularly topical debate as the Facilitators Package is currently under revision.