The Facilitators Package, penal populism and the Rule of Law: Lessons from Italy

Abstract

The past 20 years have witnessed an increase in the attention that the international, national and European policy responses have devoted to irregular immigration and transnational organised crime, with the Facilitators Package being among the protagonists of the criminalising approach adopted by the European legislator. More specifically, provision was drafted and ratified with the aim to tackle irregular migration by strengthening the penal framework on the facilitation of unauthorised entry within the European Union (EU) external borders in ‘the strict sense, and for the purpose of sustaining networks which exploit human beings’. Nevertheless, although its effectiveness in achieving the stated goals has been confirmed in the EU regulatory fitness performance programme (REFIT) assessment by the EU commission released in 2017, the academic judgment has taken a completely different direction, labelling the provision as exemplary of the preventive role taken by EU criminal law. The aim of the article is to analyse the transposition of the Facilitators Package by the Italian legislators and to examine its application within the national legal framework, in order to scrutinise the consequences that the symbolic application of the criminal law provision is having on the Italian jurisdiction in terms of Rule of Law (particularly on the principle of legal certainty).