The problem of the criminalisation of humanitarian aid in the context of the 2002 european union directive and framework decision on strengthening the criminal framework to prevent the facilitation of unauthorised entry, transit and residence

Abstract

The legal regulations the European Union (EU) has adopted to prevent illegal migration are becoming increasingly harsh. The practice that has developed within the framework of the regulations weakens the legal legitimacy of the measures taken. In particular, trying to control the illegal entry or illegal stay of foreigners in a country through the tools of criminal law causes problems in many respects. The EU Council Directive 2002/90/EC, referred to here as the Facilitators Directive, is one of the most important examples of this. This study will examine the acts that constitute a criminal offense under the Facilitators Directive within the framework of the Protocol against the Smuggling of Migrants, especially regarding the ability to punish humanitarian assistance. In determining the framework of the smuggling of migrants in terms of criminal law, this article will attempt to put forth an approach based on the principles of criminal law and human rights. The intensity of the sanctions imposed on illegal migration from the perspective of the protection of state borders results in the violation of state obligations arising from international conventions to which states are a party. Therefore, not expanding the limits of criminal law's ability to intervene in immigration law is important, being an area where administrative regulations are effective.