Towards Universal Criminalisation
“Italy Criminalises Surrogacy from Abroad, a Blow to Gay and Infertile Couples.” This was the headline on the New York Times website following the approval of a law in Italy criminalising reproductive tourism. Giorgia Meloni had already introduced the bill, Act no. 824, in the last Parliament, and the current right-wing majority has now passed it. The news has gone around the world. Let us try to understand why.
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Ukraine, the Netherlands and 26 Third States Without Russia Before the ECtHR
The hearing in the case of Ukraine, the Netherlands v Russia lasted four hours and twenty-five minutes. more than double than an “ordinary” Grand Chamber hearing. These four hours and twenty-five minutes are an important milestone in what is undoubtedly one of the most important set of cases in the history of European Convention on Human Rights. They cover more than ten years of Russian activities in Eastern Ukraine, including the open war of aggression since February 2022. The number of third parties involved in the proceedings likewise renders the case extraordinary.
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Waiting for Kinsa
On 18 June 2024, the Court of Justice of the European Union will sit as a Grand Chamber in a hearing addressing the compatibility of the so-called Facilitators Package with the principle of proportionality set out in the EU Charter of Fundamental Rights (CFR). The Kinsa case (previously named Kinshasa) provides an opportunity for the CJEU to counteract the trend towards overcriminalisation of humanitarian action that has taken hold across the EU. This blog highlights the ways in which the Facilitator Package fails to take account of important fundamental rights and why the criminalization of solidarity that it has facilitated is not an inevitability but a political choice.
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Refoulement As A Crime
Last month, the Italian Court of Cassation upheld the (suspended) sentence of one year’s imprisonment of the shipmaster of the Italian ship Asso28. He was convicted of two offences of abandonment for returning and handing around 100 migrants over to the personnel of a Libyan patrol boat, including some unaccompanied minors and pregnant women, whom he had previously rescued in international waters within the Libyan SAR zone. The case constitutes the first time an individual was held criminally responsible for failing to fulfil the duty of non-refoulement. Until recently, the refoulement duty has only served to exclude the liability of shipmasters who had complied with it whenever they were accused of facilitating irregular immigration. This case indicates the emergence of a new function of the principle, namely that of grounding the criminal liability of those who violate it.
Continue reading >>Pushing Back
The CJEU has pending before it a crucial case on the criminalisation of seeking asylum and assistance to those seeking protection. At this critical juncture, this blog post highlights a sample of important decisions in which courts, giving effect to constitutional and international legal principles, set legal limits on this form of criminalisation. These cases reflect not only the appropriate legal limits, but also acknowledge the character of irregular migration and smuggling. Rather than framing individuals as dangerous illegal migrants and exploitative smugglers, they reassert the humanity of both those in search of refuge and opportunity, and those that assist them.
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The Shadow of the Past, the Challenges of the Future
The outcome of Italy's election has caused worried reactions and general alarm both across Italy and internationally. It is the first time since the dark days of fascism that a right-wing party has won the general election and will likely head the government. It is undoubtedly a turning point in Italian politics and history, a radical shift in the political spectrum. Is Italy’s constitutional system resilient enough to deal with the post-fascist legacy of Brothers of Italy? Is Italian democracy in danger? Three days after the elections we have to be cautious with any such predictions, but I think some preliminary answers are possible already at this early stage.
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