October, 15th 2015 – Loano (Italy)
 Antonello V. Meloni
The dramatic situation of political instability in the North of Africa has made the phenomenon of migration towards North and Central Europe more intense in the last few years.

The Mediterranean, specifically the waters adjacent the coasts of Italy and Greece, is the most popular destination of the migrant flow coming from North Africa and the Middle East.

As a consequence of this emergency situation, a Yacht captain could be faced with a new legal scenario: the encounter of ships in difficulty and carrying migrants.

This encounter might, on paper, have penal and maritime consequences.

Furthermore, seeing the increasing number of cases in which the migration process is illegal (an example of which are the cases in Sicily the past summer), the ships could therefore be subject to new inspections.

At the moment in Italy the reference regulation concerning immigration is the Bossi-Fini law and the “security package” from July 24th 2009 that declared secrecy conditions a felony. Following the current emergency situation, an abolition of this felony has been proposed but not yet been applied.

According to some critics, the two laws would allow for prosecution of anyone who renders assistance or helps shipwrecked victims.

This theory is based on the legal consequences occurred in August 2013 when seven fishermen were arrested by police in Lampedusa for having rescued 44 migrants near the Sicilian canal, 40 Miles south of Lampedusa. The seven Tunisian sailors were accused of abetting illegal immigration.

Abetting illegal immigration is a felony, as stated in the art. 12, comma primo of the Consolidated Act in regards to immigration. :

“Anyone who, in violation of the regulation of the present Consolidated Act, promotes, manages, organizes, finances or the transport of foreigners into the State, carries out other direct illegal acts and facilitates the entry of foreigners who do not hold citizenship or a residency permit, will be punished with imprisonment from one to five years and fined 15,000 Euros per person”. The second comma however states that “rescue and humanitarian assistance given to foreigners who are already present on Italian territory are not to be considered felonies”.

We can therefore deduct that rescue and humanitarian assistance to foreigners present in the Italian territory and in need of assistance are not to be considered a felony. This is exactly what happened in Lampedusa, as the sinking ship was in fact in Italian territorial waters and the people on board were in fact foreigners in need of assistance “present on Italian territory”.

What goes on outside Italian territorial waters remains uncertain.

The reference regulations are the international treaties signed by Italy (SOLAS convention and IMO) that oblige the rescue of anyone who is in need of assistance at sea, even if outside territorial waters, in a specific area of responsibility, “regardless of nationality” and to conduct them in a “safe place”. In the alterations to the treaties that were later approved some terms are specified: the ship onto which people are loaded when rescued cannot be considered a “safe place” but rather a “temporary” place.

The same amendments state that no organization or person can influence the captain’s decision regarding the “safe place” to which the shipwrecked victims are then brought.

In other words, a captain who believed Lampedusa to be the best place to take the rescued shipwrecked victims should not have been influenced or blocked.

Moreover, the Italian navigational code obliges a captain, through art. 490, to rescue any passengers aboard a craft that is unable to manoeuvre and to attempt the rescue of any person at sea.

That said, the question of why the Tunisian sailors were arrested and accused of abetting remains.

It was a very particular case. The trial in fact revealed that the holds of the fishing boats were empty and there was no fish smell. It was therefore suspected that the two captains had only pretended to rescue the migrants. The captains were acquitted from this charge by the court of Agrigento but were found guilty of resisting public officer and attacking a warship. They were later acquitted from these charges too claiming that there was a “state of need” (article 54 of the Italian Criminal Code) and that based on the international treaties signed by Italy, the two captains could not be prosecuted.

Although the Tunisian captains were acquitted, they were heavily affected by the process. They were kept in pre-trial detention for 40 days and their crafts were seized. It is not clear if the two fishermen were eventually indemnified.

This its the true reason why, to this day, some believe that when faced with a ship that in difficulty, it is better to avoid providing any assistance so as to not risk getting caught in the gears of the Italian justice system.

In other words what happened can be seen as an example of unprecedented legal errors and of damages done to the Tunisian fishermen that confirms that anyone who aids and rescues shipwrecked victims can be prosecuted.

In Italy, nobody has ever been condemned for abetting clandestine immigration after having rescued shipwrecked victims.

We therefore think that, according to international rules and according to the navigational code, a captain who renders assistance would not risk any sanction for abetting illegal immigration but would, in accordance with the rules, due to the inertia in rescue situations, risk a sanction for failing to assist.

The only precaution: the captain will have to carry out rescue operations and ensure the safety of the yacht of which he is responsible in accordance with the employment agreement. The rescue operation is in fact mandatory when and if it does not put the rescuing unit at risk.