Italian Supreme Court of Criminal Cassation, Section I, 9 June 2021, n. 22734
The first criminal section of the Supreme Court of Cassation has dealt with a case related to the Kafala, a system, typical of Islamic law, which allows a child to be cared for by a person other than the parents, usually a relative, without losing the ties with the family of origin.
The case concerned the crime of facilitating illegal immigration supposedly committed by a woman who entered Italy from Tunis together with a minor who did not have a filiation link with her, according to Italian civil law. The defendant was convicted by the Court of Civitavecchia, with a decision confirmed in second instance by the Court of Appeal of Rome.
Appealing to the Supreme Court of Cassation, the woman claimed the legal relevance of the Kafala system principles, according to which the woman had undertaken to raise and educate the child, who is her sister’s daughter. According to the applicant, this circumstance, even if it could exclude the criminal offence regulated by art. 12, paragraph 3, of Legislative Decree no. 286 of 1998, had not been taken into consideration by the judges. The Supreme Court has upheld the appeal and observed that the Court of Appeal of Rome had not carefully examine the appellant's defense. The Court of Cassation pointed out that the Court of Appeal should have ascertained, in the specific case, the existence and validity of the kafala and its equivalence to a mother-son relationship.
In other words, if the Court of Appeal had assessed the presence of the requirements for a filial bond by virtue of the kafala, it would have excluded the configurability of the crime referred to in art. 12, paragraph 3, of Legislative Decree no. 286 of 1998.