Discriminated at the sea: the criminalization of people on the move and the call for justice

by Sara Gambino

Across the Mediterranean, thousands of people each year risk their lives to reach Europe in search of safety, stability, and dignity. Yet, for many of them, arrival marks not liberation but the beginning of further issues and troubles. Those accused of steering boats during the journey, commonly labelled ‘captains’, often find themselves prosecuted under national and European anti-smuggling laws. In Italy, but not solely, these prosecutions have become a recurrent feature of migration control, revealing how individuals who are often victims of coercion and trafficking become subjects of severe penal measures whilst searching for their freedom and survival.

Moreover, the trend of criminalization extends beyond the migrants themselves. Humanitarian organizations engaged in sea rescue operations, such as Mediterranea Saving Humans, SeaWatch, SoS Mediterranee and Ocean Viking, have faced judicial proceedings, vessel seizures, and administrative sanctions for their efforts to save lives at sea¹. While their activities comply with international maritime law and the duty to rescue people in distress, they are often framed as facilitating irregular migration.

This pattern reflects an alarming expansion of criminal liability, where acts of solidarity and humanitarian aid are increasingly treated as offences, further confusing the line between legality and moral responsibility.

The phenomenon highlights a broader pattern of discrimination within the European justice landscape, where people in vulnerable migratory situations are treated as criminals rather than as rights-holders. To engage on this issue, CEIPES – International Centre for the Promotion of Education and Development in partnership with the ARCI Porco Rosso as grassroot organization, the Palermo Legal Clinic for Human Rights, Advocats Sans Frontiere and The University of Palermo has developed a project which is awaiting evaluation but encompasses a deep field and desk research with the aim of countering the discriminatory treatment of people accused of migration-related crimes and promoting fair trial standards. In fact, through desk research and interviews with lawyers, grassroots organizations, activists and civil society actors, the organization underscored how systemic inequalities in criminal proceedings reinforce the marginalization and discrimination of those “on the move”. The research identified key patterns of unequal treatment: the lack of specialized legal defence, the absence of interpreters and cultural mediators, and the general weakness of the evidence used in prosecutions.

Therefore, this article reports, among others, some of the CEIPES’s findings during the course of its research on the topic which was carried out between June 2024 and September 2025. The article analyses the discriminatory dimensions of these prosecutions of people reaching Europe by sea, their legal and social implications, and the urgent need, on a European level, for justice systems to ensure equal treatment before the law.

From survival to guilt: discrimination and criminalization in the Mediterranean Sea

Over the past decade, Italy has tightened visa and residence permit policies, alongside implementing harsher penalties for migration-related offences. The 2023 “Cutro Decree”² broadened the notion of “facilitation of illegal immigration” to include cases involving injury or death, creating a legal environment in which migrants crossing the sea are frequent targets of prosecution.

According to the International Organization for Migration data³, between January 2025 and September 2025, 47,889 migrants were disembarked in Italy (over the whole of 2024, 66,617 people were disembarked). Data on people arrested for offences related to immigration at their arrival are not easy to gather, however as reported in the ARCI Porco Rosso and Alarm Phone’s Report, the Italian Police data reports that between 2013 and 2024 the number of people arrested as “boat drivers, organisers and assistants” amounts to around 3,200⁴; there are currently 1,167 people in prison in Italy for facilitating irregular immigration⁵. Many of these defendants, often from sub-Saharan Africa, the Middle East, or South Asia, were passengers coerced into steering a boat or operating a GPS under threat from smugglers. In several cases, testimonies show that refusal to comply would have resulted in physical violence or abandonment at sea⁶.

Despite these circumstances, national prosecutors have applied criminal law as if all accused shared equal intent and responsibility. This reflects a structural form of discrimination, where the migrant’s social and legal status amplifies their vulnerability in the judicial process. Migrants without resources or interpreters are more likely to face charges unsupported by solid evidence, revealing how status-based inequality shapes outcomes in court⁷.

Rather than addressing migration as a systemic reality, penal policy often focuses on symbolic punishment. This approach transforms human mobility, a phenomenon driven by survival, into a criminal act, reproducing discrimination within the very institutions meant to protect rights.

Discriminatory practices and the violation of Fair Trial rights

Findings and testimonies from Italian courtrooms highlight concerns about how EU Directives on fair trial rights are being upheld. These include the Directive 2010/64/EU on the right to interpretation and translation, the Directive 2012/13/ EU on the right to information, and the Directive 2013/48/EU guaranteeing access to a lawyer.

In numerous cases, accused persons were unable to understand the charges or the proceedings due to inadequate interpretation⁸. Courts often lacked cultural mediators capable of explaining the social or linguistic context of the migrants’ statements. Lawyers defending these cases frequently had no prior experience with migration-related prosecutions and operated without institutional support networks.

Such procedural shortcomings produce indirect discrimination, as defendants’ migrant status becomes a barrier to accessing justice. Moreover, many trials rely on fragile evidence, such as uncorroborated statements or assumptions about who was ‘in charge’of the vessel, contradicting the principles of presumption of innocence guaranteed under Directive (EU) 2016/343⁹.

This pattern, where lack of resources intersects with prejudicial assumptions, leads to a discriminatory application of justice: while European citizens benefit from procedural safeguards, migrants accused in similar contexts often face expedited trials and harsher penalties.

Penal Populism and the structural discrimination of migrants

The persistence of these cases cannot be separated from broader social and political narratives. Over the last decade, migration has been framed as a security issue, fueling what scholars describe as penal populism (Pratt, 2006). This refers to the political use of criminal law to address public fears and to appear “tough” on crime and migration.

In this climate, discrimination operates through criminalization. Public discourse tends to associate irregular migration with illegality, obscuring the structural causes of movement such as conflict, inequality, and climate change. By criminalizing migrants for their status or survival strategies, penal populism transforms inequality into guilt.

The Campaign for the Decriminalization of Poverty, Status and Activism¹⁰, an international initiative active in several countries and now extending to Europe, exposes this dynamic. It shows how penal systems worldwide increasingly target people not for their actions but for their social condition, whether poverty, homelessness, or migration. CEIPES, as one of the organizations which joined this campaign, highlights that criminalizing migrants because of their mobility perpetuates discrimination embedded in legal frameworks rather than eliminating exploitation.