In March 2021, the Criminal Court of second instance (Corte di appello) of Catanzaro confirmed the judgment of the Tribunal of Crotone, slightly reducing the previously imposed sanctions and declaring the criminal liability of the three accused, Vladislav Shklyruk, Denis Kostenko, and Vasylivna Tetyana Ravliuk. The accused had been charged with illegal immigration in relation to the seaborne transport of around 40 non-European citizens, found by the Italian authorities living in degrading and inhumane conditions on board a ship sailing under a US flag, which was boarded by the Italian police forces (notably, the Guardia di Finanza (the GF)) in international waters.

The Judges recalled art 111 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), which allowed for the pursuit of a foreign ship, even on the high seas, where the coastal State had reasonable grounds to believe that the ship had infringed its domestic law. Art 111 of UNCLOS establishes, among other things, that 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.

The Judges also emphasised art 33 of UNCLOS, dedicated to the contiguous zone, providing for the exercise of coastal State jurisdiction for the prevention and punishment of infringements concerning immigration law committed within its territory or territorial sea. Thereby, Italian jurisdiction over the case was justified by having previously monitored the relevant ship in international waters, before it reached the Italian coast.

Article 33 of UNCLOS provides:

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

The accused appealed to the Supreme Court of Cassation, calling into question the legitimacy of Italian jurisdiction. They stressed that the ship transporting the migrants was navigating under the US flag, and that the USA had not ratified UNCLOS, the provisions of which were consequently not in force in respect of that country. Rather, in the defendants' view, the jurisdiction of the flag State should apply. Neither art 33 of UNCLOS nor art 111 of UNCLOS could be invoked, taking into account that the Supreme Court of Cassation had applied these provisions only in cases where Stateless ships were involved. Moreover, the pursuit of the ship in question had already started in international waters and was thus not justifiable on the exclusive basis of a supposed escape. Indeed, when the GF boarded the vessel, no crime has been committed. By contrast, neither pursuit nor rescue activities occurred in Italian territorial waters.

Held: The appeal in cassation is dismissed.

The Court noted that previous judgments had already recognised the lawfulness of intervention by the GF which took place in waters under Italian jurisdiction, while in international waters the Italian authorities performed exclusively visual control and monitoring activities concerning navigation routes of vessels which appeared to be directed towards the Italian coast. Furthermore, the ship hosting the migrants freely entered Italian waters without facing any previous pursuit. For these reasons, the US flag of the ship does not constitute a valid legal basis to challenge Italian jurisdiction, particularly in light of the application of the United Nations Convention against Organised Crime 2000 (known as the Palermo Convention), allowing for the exercise of extraterritorial criminal jurisdiction in cases of migrant smuggling.