• #Migration

In what ways could strategic litigation help overcome the increasing criminalisation of individuals and NGOs supporting migrants?

Enrico Gallerani
Social Operator - Non profit
Alberto Zinanni
Paralegal - ARCI Pistoia
Community Support Worker - International organisation for migration

The goal of this consultation on the strategic litigation on criminalisation of solidarity is:

- to assess what can be learnt from defence cases in which civil society has been accused for migrant smuggling at national courts

- to explore which approaches civil society actors could use to highlight responsibilities of both national and EU agencies for criminalisation and policing of civil society actors.


The ReSOMA Final Synthetic Report on the crackdown on NGOs and volunteers helping refugees and other migrants highlight that: 

- The vagueness and legal uncertainty stemming from the EU Facilitators Package has been a factor enabling misguided prosecutions of civil society across the EU.

- A quantitative overview shows that from 2015 to April 2019 there were at least 49 cases where 158 individuals were accused on the grounds of facilitation of entry and/or stay in 11 countries.

- Approaches to be further explored in order to advocate and litigate include EU citizens’ right to good administration; the EU’s obligation to respect, protect and promote the work of human rights defenders; the EU’s obligation to secure humanitarian space within the EU; and the EU’s obligation to preserve and promote fundamental rights and to ensure the EU citizens’ right to good administration.

In our expert interview with Frances Webber, Dr Ioannis Kalpouzos, Noemi Magugliani and Dr Valentina Azarova, the absence of a humanitarian exception in the Facilitation Directive is repeatedly mentioned as a serious concern that needs to be urgently addressed by policy makers and legislators. ReSOMA Policy Option Brief adds further options, such as changing the Facilitators’ package and introducing a financial or other material gain requirement, ensuring the better monitoring of its implementation, including through independent observatory as well as oversight of the EU’s founding values via Rule of Law mechanism.


This online consultation aims to discuss with lawyers and legal practitioners, national stakeholders, policy actors and researchers the following two topics:

Topic 1: Lessons learned in defence cases at national level.

- How are lawyers defending individuals and NGOs accused on migrant smuggling at national courts? Which are the main legal arguments used by lawyers to defend them? Do they refer to national or also to EU, European or international laws in the defence cases? Have they submitted appeals after first instance cases and how they motivated it?

- On which legal grounds have national courts eventually acquitted or convicted volunteers/NGOs? 

- What could be learnt from defence cases at national level to address the ongoing criminalisation of solidarity via strategic litigation?  


Topic 2: New venues and approaches for strategic litigation.

- What is the most relevant approach to prevent criminalisation and policing of civil society actors by the EU institutions and agencies? Please also fill out a quick scoring survey about specific approaches.

- Which international, regional and EU courts and human rights bodies that could be used for strategic litigation would be most influential in preventing policing of humanitarian actors? 

- Do you know any similar examples of strategic litigation cases related to other human rights defenders, environmental activists, journalists, etc.? What has been the outcomes of these cases? What kind of remedies did they call for?


We invite you all to share your views, experiences and examples on strategic litigation cases you know at national (i.e. Constitutional Courts), European and  international level.


To join the discussion, please first log in to the platform in the top right corner. 


When you leave a message, please note in the subject line the topic you are responding to in order to ensure more interactive dialogue between commentators. Ex: “Topic 1: In defence cases, lawyers play more important role than…” or “Topic 2: the most important approach is …”


Please scroll down to read and reply to previous comments!

Catherine Woollard
12.07.2019 15:50

Topic 2: New venues and approaches for strategic litigation

How can we resist capture of the judiciary? We are investing more and more in strategic litigation and supporting cases at all possible courts and mechanisms - national, European, international- because the political environment remains hostile and we depend on courts to defend civil society but also to defend the rights of those on the move. But this contributes to capture of the judiciary, particularly when far right "populists" are in power. Should we carry on regardless? Are the measures we can support in parallel to shore up the judiciary? And/or examples of steps taken limit capture?