This reference for a preliminary ruling was submitted after the Italian judicial authorities initiated criminal proceedings against a Congolese national who had helped two members of her family β her daughter and niece, both minors β to enter Italy illegally using false passports.
This person has now been charged with the offence of facilitating unauthorised entry into Italy, in conjunction with the offence of holding false identity documents, as provided for under Italian law. In essence, the question arises as to whether, in a situation such as that at issue in the main proceedings, the severity of the sanctions to which the person in question is likely to be exposed is commensurate with the seriousness of the offences committed by him or her, and whether or not it exceeds the limits of what is necessary to achieve the objectives pursued by the national legislature, in accordance with the principle of proportionality of criminal offences and penalties.
Lastly, as regards the national legislation at issue, I will explain that it is for the referring court to carry out a specific examination of the proportionality of that legislation in the light, in particular, of the possibility of exonerating from criminal liability persons whom have been shown to have acted disinterestedly β in order to provide humanitarian assistance or because of family ties β or the possibility of adapting the system of penalties applicable to them.
The first is Article 61 a EC now Articles 67 and 68 TFEU , which provided that the Council of the European Union would adopt measures aimed at ensuring the free movement of persons and directly related flanking measures with respect to external border controls and immigration, as well as measures to prevent and combat crime. The second is point 3 b of the first paragraph of Article 63 EC now Article 79 2 c TFEU , which provided for the adoption of measures in the field of illegal immigration and illegal residence.
Any Member State may decide not to impose sanctions with regard to the behaviour defined in paragraph 1 a by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned. Article 12 1 and 2 of decreto legislativo n. Save where the act constitutes a more serious criminal offence, any person who, in breach of the provisions of the present consolidated law, promotes, directs, organises, finances or carries out the transportation of foreign nationals into Italy or carries out other acts intended to procure their unauthorised entry into Italy or into the territory of another State of which they are not nationals or in which they are not entitled to permanent residence shall be liable to a term of imprisonment from two to six years and a fine of EUR 15 for each individual.
