Implications of new 'migrant-scafisti' term for criminalised boat drivers before Italian Constitutional Court

Guest post by Stefano Zirulia. Stefano is an associate professor of criminal law at the University of Milan. His main area of research is in the relationship between criminal law and fundamental rights, with a special focus on immigration, law enforcement and environment.

On the night of 25 February 2023, one of the most devastating shipwrecks in the Central Mediterranean this century occurred off Cutro, on Italy’s southern coast. In stormy conditions, a boat capsized a few hundred metres from the Italian shore, after departing from Turkey. Of the 180 people on board, 94 people, including thirty-five children, died. A further ten people were reported missing. Five defendants from Turkey, Pakistan and Syria were later sentenced to 11-20 years’ imprisonment for facilitating irregular immigration, causing a shipwreck, and manslaughter. Six members of Italy’s border authorities are also being prosecuted for allegedly delaying the rescue response without justification; the proceedings are pending before the criminal court in Crotone.

On 10 March 2023, in the aftermath of the shipwreck, the Italian far-right government adopted a decree-law introducing a new criminal offence, inserted as Article 12-bis of the Consolidated Immigration Act (immediately after Article 12, which criminalises the facilitation of irregular immigration). Article 12-bis provides for up to 30 years’ imprisonment where death or personal injury results unintentionally from such facilitation. It also expressly establishes Italian jurisdiction over offences committed in international waters, regardless of the vessel’s flag (which is often entirely absent in such cases), on the sole condition that there is evidence to suggest that the vessel is heading towards the Italian coast. In public statements, the Italian Prime Minister presented the new offence as a flagship measure in Italy’s fight against migrant smuggling and deaths at sea.

On 16 October 2025, two defendants stood trial – they were alleged to have been the crew of the boat carrying 34 migrants, three of whom died in a shipwreck. This was one of the first prosecutions under Article 12-bis. During the trial, the court stayed proceedings and referred to the Italian Constitutional Court to ask whether the statutory penalties were compatible with the principle of proportionality, as guaranteed by both the Italian Constitution and Article 49 of the Charter of Fundamental Rights of the European Union.

In its judgment handed down on 3 July 2026, the Constitutional Court adopted an ambivalent position. On the one hand, it upheld the reform, finding that the new offence, despite its “exceptional severity”, was not disproportionate in light of its aim to protect human life. On the other hand, it urged criminal courts to exercise particular caution when applying the offence to foreign nationals identified as boat drivers or as having performed other tasks on board. Instead of referring to these people as “scafisti” (a word commonly adopted by the media and in courtrooms to portray boat drivers as smugglers) the Constitutional Court chose the more nuanced term “migranti-scafisti”. Moreover, the court stressed that judges must consider whether the defence of necessity applies or, failing that, whether mitigating circumstances warrant a reduced sentence (under Article 114 of the Italian Criminal Code, the judge may reduce the sentence by up to one third if they consider that the defendant’s contribution was of “minimal importance” or that the defendant acted under “psychological constraint”). Bearing in mind that, to date, ‘migrant smugglers’ have been granted the defense of necessity in very few cases (as reported by Arci Porco Rosso in its 2021, 2023 and 2025 reports) and have never been granted the above-mentioned mitigating circumstances, this strand of the ruling represents a genuinely novel and highly significant development in Italian law.

Building on an existing pattern of criminalisation

Even before Cutro and Article 12-bis, prosecutions of alleged “scafisti” had attracted criticism from scholars and human rights defenders over alleged violations of defendants’ substantive and procedural rights. Under Italian law, transposing the highly controversial EU Facilitators package, the general offence of facilitating ‘illegal entry’ is exceptionally broad and does not require the specific intent of profit. As a consequence, nearly any task performed on board – including those motivated by mutual aid among migrants or compelled by threats or an emergency – may be treated as criminal facilitation. Arrests made immediately after disembarkation routinely rely on statements obtained from fellow passengers, often without adequate interpretation or legal assistance. Over the years, this enforcement pattern has produced numerous convictions, while most of the organisers of the smuggling routes go unpunished and remain actively involved in supporting Italian and EU policies aimed at externalising borders. 

One especially controversial case concerned four Libyan footballers sentenced in 2021 to thirty years’ imprisonment after fellow passengers identified them as the crew of a dinghy on which 49 people below deck died of asphyxiation. One of them later wrote an award-winning book narrating the journey and the following trial. He recently received a partial pardon from the President of the Republic and proceedings to review his conviction are now under way. The Iranian filmmaker and activist Maysoon Majidi also attracted media attention after making a similar crossing. She was arrested on 31 December 2023, after a cursory investigation immediately following disembarkation on the coast of Crotone; her case then became the focus of a major civil-society campaign, and she was ultimately acquitted by the Crotone court in 2025.

However, most cases receive little public attention. The 2021 ARCI Porco Rosso report indicates that people identified as ‘scafisti’ account for the majority of those convicted of facilitating irregular immigration in Italy. Often, the severity of the sentences is increased as a result of framing the facilitation of immigration as part of a criminal association. The situation is set to worsen due to the more severe penalties imposed by Article 12-bis in cases where the facilitation of irregular entry results in fatalities.

Implications of the new ‘migrant-smugglers’ category 

The Constitutional Court’s ruling is the first judicial decision to recognise ‘migranti-scafisti’ as a criminological category distinct from smugglers. The court defined the category as:

“a person who is not part of the criminal group organising the journey and is assigned an occasional logistical task. Such a person may have been threatened, subjected to violence, pressured through threats against family members, or compelled to intervene in an emergency” (author’s translation).

For such defendants, the constitutional court instructed criminal judges to first consider the defence of necessity. It identified several possible scenarios: a migrant may take the helm as a result of violence or threats, in an attempt to escape severely degrading conditions of detention, or after smugglers have abandoned the vessel at sea. Crucially, the court rejected the proposition that migrants create the danger themselves merely by embarking on an irregular journey. Where necessity does not fully exclude liability, judges should consider a reduced sentence if the defendant’s contribution was minimal, or he/she acted under duress.

The judgment remains deeply ambivalent. It acknowledges that the figure of the smuggler is shaped by stereotypes, yet leaves intact the punitive framework built around such a category, leading to the systematic criminalisation of “scafisti”. Defences such as necessity, and mitigating factors such as duress, depend on the available evidence, the quality of legal representation and judicial interpretation: therefore, they cannot fully remedy the structural flaws created by an overreaching offence punishable by a 20-year prison minimum sentence. Yet the ruling may also offer a first step towards challenging the over-criminalisation that results from deploying criminal law as a tool of maritime border control. That conflation risks punishing those who should instead be protected, while doing little to disrupt the structures that profit from dangerous crossings. Recognising – just as the Italian Constitutional Court does – that the person at the helm may be a migrant among migrants – a passenger, sometimes even a victim of trafficking, rather than a smuggler – could ultimately mark the beginning of a new phase in judicial practice.

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