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10. Italian legislation and judicial competences in the fight against trafficking and smugglingThe law introduces new criminal offences against minors. Two provisions added tothe criminal code should be mentioned in particular: article 601, paragraph 2 andarticle 600-bis, paragraph 1, “Prostitution of minors”. 15610.5.5 The criminal code 157The criminal code envisages a number of criminal offences related to the traffickingof persons for exploitation and the smuggling of migrants, these being the socalled“instrumental” offences typically committed by individual criminals orcriminal groups before, during, or after the entry into the country of illegalmigrants/exploited persons. 158The first reference is to crimes involving various kinds of violence, such as bodilyharm (article 610), threatening behaviour (article 612), abduction (article 605 and630), sexual assault (609-bis and subsequent), battery (article 582), murder (article575).Criminal proceedings on human trafficking and smuggling often use the provisionson organised crime contained in article 416 “criminal conspiracy”, and article 416-bis, “Mafia-type conspiracy”.Finally, particular attention should be paid to the provisions of articles 600-604 inthe criminal code aimed at repressing slavery. 159 The management model typical ofthe illicit activities involved in persons trafficking, rests crucially on reduction toslavery, because it is a means to limit and influence the freedom of the person bothphysically and psychologically.156 The innovative impact of law 228/2003 has also affected the legislation on paedophilia: article 601,paragraph 2, of the criminal code has been replaced by the new article 601 of the criminal code whichincreases the penalties for trafficking persons under the age of 18, and likewise the revised provisions onreduction to and maintenance in slavery or servitude (see new article 600, paragraph 3 of the criminalcode). Other dispositions increasing penalties are contained in article 600-sexies, paragraph 1 criminalcode (Aggravating and mitigating circumstances). The changes to the substantive law are of course alsoreflected in investigative instruments and the judicial procedure described in the previous section of thischapter.157 The provisions of the Code have now been completely revised by law 228/2003. See the previoussection, paragraph 10.2, for examination of the substantive provisions.158 N.M. Pace, "I flussi migratori illegali: disciplina penalistica della materia e tecnica delle indagini, anchenella loro dimensione sovranazionale" [Illegal Migratory Flows: the Criminal Regulation of the Subject andInvestigative Techniques, Also in Their International Dimension] report presented to the InternationalConference Il traffico di esseri umani e il ruolo della criminalità organizzata [Trafficking in Human Beingsand the Role of Organised Crime], Istituto Italiano per gli Studi Filosofici, Naples, 27-29 May 1999, "La cittàdel sole" Ed., Naples, 2000, pp. 61 ff.159 As mentioned above, these provisions have been completely revised by law 228/2003.97
10. Italian legislation and judicial competences in the fight against trafficking and smuggling10.6 A10.6 APPLICABLE CRIMINAL OFFENCESOThe previous section described the legal instruments available for the fight againsttrafficking in persons and the smuggling of migrants. This section analyses theindividual criminal offences applicable in detail. As will be shown in the followingchapters, these criminal provisions were the legal body of reference for theproject’s monitoring of the Italian prosecutor’s offices. The numerous crimesselected, notwithstanding differences due to their provenance from diverse legalsources, allow punishment of various offences falling within the category ofbehaviours typical of trafficking and smuggling.10.6.1 Facilitating illegal immigration (article 12 d.lgs. 286/1998)As mentioned in the previous paragraph, the criminal law definition of migrantsmuggling (article 12, paragraph 1, Testo Unico on Immigration) has been recentlymodified by the Bossi-Fini Law. The current provision states:“Unless the behaviour is part of a more serious offence, those who violate theprovisions contained in this Testo Unico by engaging in any activity with thepurpose of bringing a foreign national into the national territory, or any activityaimed at procuring the illegal entry in another State of a person not a citizenthereof or who does not possess a legal permanent residence permit, violating theprovisions contained in this Testo Unico, may be subject to imprisonment for up tothree years and a fine amounting to a maximum of Euro 15,000 for each person”.Besides the procurement of illegal entry, which was also envisaged by the previousversion of the provision, a further criminal offence related to so-called ‘illegalexpatriation’ has been added, thus extending punishment to offences committed tothe detriment of other countries.The third paragraph of article 12, which in the version previous to the 2002 reformprovided for a mere aggravating circumstance, has been revised to envisage a crimepunished with more severe sanctions when specific features are present, such as:mens rea specifically intended to gain profits even indirectly from the crime;participation in the crime by three or more persons: the use of internationaltransport services or of false or illegally obtained documents. Aggravatingcircumstances for this crime have been introduced by article 3-bis (i.e. havingfacilitated the entry or the stay in the national territory for five or more persons;having acted in manner to endanger the life and physical well-being of the personillegally smuggled into the country; having treated that person in an inhuman ordegrading way), while other aggravating circumstances have been introduced byarticle 3-ter (having acted to induce into prostitution or sexual exploitation thepersons smuggled into the country, or in respect to minors, having smuggled themfor the purpose of their exploitation in unlawful activities).The balance of circumstances, too, has been substantially modified from a morerepressive perspective, in that paragraph 3-quater states that mitigatingcircumstances other than age (article 98 criminal code) cannot be considered asequivalent to or overriding the aggravating ones described above.98
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TRAFFICKING IN PERSONS ANDSMUGGLING
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Table of contentsTABLE OF CONTENTS1
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Table of contents10.4 Assistance an
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Table of contents13.1.5 Atypical in
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1. Acknowledgementsthe interviews w
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2. Executive summary2.EXECUTIVE SUM
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2. Executive summaryDuring phase V,
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2. Executive summaryAs regards the
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2. Executive summaryIncidente proba
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2. Executive summary- Establish the
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2. Executive summaryUpdate to the r
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3. IntroductionThe need for reliabl
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3. Introductionpersons and on the s
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4. Goal, objectives and phases of t
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5. Operational definitions5.OPERATI
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5. Operational definitionsany provi
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5. Operational definitions5.3 T5.3
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6. The United Nations Convention ag
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Page 50 and 51: 7. The European Union regulations7.
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11. A map of the phenomenon in Ital
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12. The results of the interviews c
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14. Conclusions14.CONCLUSIONSThis r
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14. Conclusionswithin forty-eight h
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14. Conclusions- Increase European
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14. Conclusions- Provide social sup
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ANNEXASURVEY ON CASES OF PEOPLETRAF
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Annex AData related to the case:Cas
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Annex AQuantity and nationality of
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Annex ANumber of persons for whom o
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Annex BINDEXFIRST PART - THE PHENOM
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Annex B1.1 Smuggling of migrants (t
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Annex B13. How much do the migrants
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Annex B2.2 The perpetrators of traf
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Annex Bmeasures, tailing, infiltrat
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Annex B45. What kind of internation
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