The Constitutional Court, with judgment number 120 of 3 July 2026, stated that the penalties provided for the crime of death or injury as a consequence of crimes relating to illegal immigration, introduced by article 12-bis of the Consolidated Law on Immigration, following the so-called "Cutro Decree" ( Decree-Law 20/2023), do not infringe the Italian Constitution. The Court's ruling resolved the constitutional legitimacy issues raised by the preliminary hearing judge of the Syracuse Court in a criminal proceeding concerning a sea transport of 34 migrants, which tragically ended with the death of three people and the injury of ten others due to a collision with a rescue vessel.

At the heart of the constitutionality question were the severe statutory penalties provided for by the law, which punishes the offence with 20 to 30 years of imprisonment in the event of the death of multiple people or death and serious/great bodily injury. The referring judge considered the treatment to be disproportionate and detrimental to the rehabilitative function of penalties, thus breaching Articles 3 and 27 of the Constitution. According to the Syracuse Court, such a high minimum statutory penalty unreasonably equates penalties for the leaders of organised human trafficking with those for the so-called “scafisti”, that is, individual migrants, unrelated to criminal organisations, often themselves victims of the criminal system and coerced to drive the boats with trafficked or smuggled people, or who only occasionally operate them.

The Constitutional Court, still recognising that the new legislation constituted an "exceptionally harsh" punitive response, ruled that it was not manifestly disproportionate to the seriousness of the offences. The decision emphasises that the provision exclusively targets extremely serious conduct that endangers the lives and health of migrants, primarily protecting the physical integrity of the individuals involved and not targeting the management of migration flows. The severity of the penalty, therefore, signals the significant criminal nature of the conduct.

Focusing on the mere “scafista”, as opposed to the trafficker in human beings, the Constitutional Court clarified that the criminal system offers adequate tools to modulate their individual responsibility. When a migrant is forced to drive the vessel due to violence, threats, or necessity during the crossing, such defences apply and can exclude criminal responsibility. In other cases, general mitigating circumstances, such as the minimal importance of the contribution made or psychological subjugation to the traffickers, allow the judge to assess the conduct and alleviate the punishment based on the actual negative value of the act. The Court also rejected the comparison with murder, specifying that the relevant comparison should be made with multiple murder or homicide involving injury. 

Finally, the objections regarding the prohibition on balancing circumstances and the failure to provide mitigating circumstances for minor offences were declared inadmissible due to a lack of supporting motivations. In conclusion, the ruling no. 120/2026 rejects the doubts raised by the referring court, confirming the legitimacy of the sanctioning system introduced by Decree-Law 20/2023 (the Cutro Decree) in light of the constitutional principles of proportionality and individualisation of punishment.