The decision presents possible indicators of involvement of an organised criminal group and or existence of a criminal conspiracy. In particular, it is noted the transnational character of the organised criminal group and its intent of obtaining a financial or other material benefit. Criminal conspiracy is evidenced inter alia by the engagement in the commission of multiple acts of smuggling of migrants and the instrumentalisation of Italian authorities in the attempt to preclude the jurisdiction of the State and, at the same time, meet the criminal aim of the conduct.This reasoning is in line with a cluster of robust Italian case-law that has been expounding on the actus reus and mens rea of membership in an organised criminal group, thus further enhancing the effectiveness of Article 5 UNTOC. Conversely, as per settled Italian jurisprudence, the participation in a criminal conspiracy may be established on grounds of participation in a single criminal act as long as the role developed or contribution given are such that they could not have been given or performed by any other person.

The decision also invokes the innovative yet consolidated case-law on the exercise of jurisdiction on the high seas, on the basis of the doctrine of “autore mediato”. It is held that for the lawful exercise of Italian jurisdiction, it is necessary that the action or omission that constitutes the criminal conduct takes place, in whole or in part, in the territory of Italy (Article 6 Criminal Code).  The jurisdiction will equally be established if the natural result of the conduct occurs in Italian territory. Once authorities are aware of the precarious conditions migrants’ are travelling in, they are under the national and international obligation to take action and attempt to rescue the endangered migrants. In this sense, authorities act under a state of necessity (in order to prevent a greater harm, i.e. the death of migrants). The organised criminal group thus instrumentalises authorities so as to ensure the ultimate goal of the criminal plan will occur in Italian soil. Accordingly, the Italian jurisdiction is triggered, preventing an impunity gap and giving inter alia effect to Article 5 UNTOC.

 

This decision is deferent to the rights of smuggled migrants. Migrants’ statements were taken in the presence of an interpreter and legal counsel because they were suspects in the related offence (contravvenzione) of illegal immigration. With regard to migrants’ statements, the Prosecutor recalled the doctrine of “convergence of multiple”, meaning that - in assessing the evidence - elements raised or gathered a posteriori may play a role as long as in their specificity, convergence and independence they still point to the same suspect and circumstances. In this manner, several dilatory expedients might be avoided.

 

NOTE: As per Italian national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation - Italy).