In February 2016, the Messina Court of Appeal confirmed the first instance judgment of the Tribunal of Messina, establishing the criminal liability of two Egyptian nationals operating in Libya, who were found to have procured illegal access to Italian territory for non-EU citizens on an unnamed boat that sailed from Libya to Italy. The migrants, rescued by the Italian authorities (Guardia Costiera (GC)) on the M/V Ubaldo Diciotti, were found in dangerous conditions for their life and safety, as well as being exposed to degrading treatment.

The defendants recurred to the Court of Cassation, claiming a lack of jurisdiction on the part of Italy. In the view of the defendants, art 98 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), while providing that States have a duty to render assistance to any person found in danger at sea, does not include any obligation for the intervening ship to return the rescued boat to its national port. In this case, the migrants on board entered Italy only through the intervention of an Italian ship, the M/V Ubaldo Diciotti, without evidence of the involvement of the two Egyptian human traffickers and transporters regarding their access to the country.

Held: The appeal in cassation is dismissed.

The Court rules that the exercise of Italian jurisdiction over this case is legitimate, highlighting the jurisprudence on the issue of illegal immigration. Where migrants on board ships are abandoned in international waters on unseaworthy ships not suitable to reach the Italian coast, with the aim of activating the intervention of rescuers (in order to let migrants enter the country), this amounts to illegal immigration. Moreover, Italian jurisdiction can also be exercised when migrants disembark on Italian territory after having been found on flagless ships sailing in international waters, and therefore falling within the jurisdiction of any State, following the wording of art 110 of UNCLOS.

Furthermore, the Court disagrees with the defendants' arguments that UNCLOS does not make reference to the return to national ports by the rescuing ship, and that there is no evidence of the involvement of the two Egyptian traffickers in the migrants' entry into the country. The Court recalls how the defendants implied the unseaworthiness of the ship in the trial documents. The Court concludes that the rescue by the GC represented not an unpredictable event, but rather a wilful one, caused by the behaviour of the two Egyptian nationals, which amounted to the criminal offence of illegal immigration.