In June 2020, the Tribunal of Agrigento found Ibrahim Moustafa Said (Said) guilty of illegally transporting 81 non-European Union citizens on a Libyan ship, the Abu Maraj, from Libya toward Italy. In the proximity of the Italian coast, the immigrants were moved to a towed wooden boat without a functioning engine. The Italian authorities arrested the ship and took the migrants to the Port of Licata.
In May 2021, the Court of Appeal of Palermo confirmed the decision of the Tribunal of Agrigento.
Said appealed in cassation, claiming that in this case there was no Italian jurisdiction, and invoking arts 33, 97, 110, and 111 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS). In particular, Said argued that the actions complained of occurred beyond the limits of Italian national jurisdiction, as UNCLOS establishes that this limit is 12 nm. Moreover, no request for help was made while the ship was in international waters.
Held: The appeal in cassation is dismissed.
The Court emphasised that UNCLOS represents an international treaty which defines the rights and responsibilities of Sates in using the seas and oceans, exploitation of marine resources, and managing international relations.
The Court stressed that not having requested help in international waters was irrelevant.
Furthermore, the Court argued that the Italian authorities' pursuit of the Libyan ship was legitimate under art 111.1 of UNCLOS on the right of hot pursuit, which provides that:
The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.
The Court noted that the modus operandi of transhipment followed by the people smugglers in this case was the result of careful criminal planning, aimed at preserving the ship used and its crew from investigation and capture by the police forces of European countries, and keeping them safe from the exercise of jurisdiction by port States.
In this stratified organisational context, the last stretch of maritime transport represents an essential and planned passage of an articulated chain of causal events which are not interrupted or broken in their continuity, for the simple reason that the rescue at sea was not an unpredictable fact, but a circumstance which was not only foreseen by this transnational criminal organisation, but was also deliberately desired and even provoked. The action of deliberate abandonment of migrants in extraterritorial waters is destined to cause a situation of necessity, aimed at triggering maritime rescue operations to allow illegal immigrants to land on Italian territory.
In conclusion, the Court recalled the duty to render assistance at sea provided by art 98.1 UNCLOS. For these reasons, the Court held that the exercise of Italian jurisdiction was legitimate.