Base de datos de jurisprudencia

Tráfico ilícito de migrantes

Delitos

• Facilitación de la entrada ilegal

Agravantes

• Poner en peligro la vida o la seguridad de los migrantes objeto de tráfico ilícito

Proc. N. 3345/15 Reg. Gen.

Resumen de los hechos

The defendant helmed a vessel that transported 234 migrants into Italy. The vessel sank, causing the death of 17 irregular migrants. According to the accusation, the defendant would have deliberately tampered with the engine in order to justify the rescue operation by Italian authorities. Upon being interrogated, the defendant admitted not to be experienced in mastering a vessel and that it was the first time he had actually done so.
In ascertaining the facts, authorities relied inter alia on testimonial evidence.
 
Legal findings:
The Judge for Preliminary Investigations of Catania (Italy) confirmed the precautionary detention of the appellant considering the indicia of (i) causing the wrecking of a vessel, (ii) voluntary homicide (multiple counts), (iii) migrant smuggling. In review, the Court of Catania confirmed the decision of the Judge for Preliminary Investigations regarding migrant smuggling, annulled it in respect of the crime of “causing the wrecking of a vessel” and requalified “voluntary homicide” into “death or harm resulting from other crime” (Article 586 Criminal Code). Following the appeal of the Public Prosecutor, the Court of Cassation annulled the appealed decision regarding the crime of “causing the wrecking of a vessel” and confirmed it otherwise.
 
For further details, see “History of Proceedings” and “Commentary”.
 
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* Note: In this analysis, the UNODC uses the term “vessel” with the meaning it entails for the purposes of the Protocol against the Smuggling by Migrants by Land, Sea and Air, that is “any type of water craft, including non- displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non-commercial service” (Article 3 (d)). Accordingly, it comprises unseaworthy ships and boats in precarious conditions.

Comentario y aspectos destacados

This decision reflects the innovative yet consolidated Italian jurisprudence on the assertion of jurisdiction on the high seas. Specifically, for the lawful exercise of 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. The fact that the transport of migrants by the suspect was interrupted in international waters due to the intervention of the Search and Rescue (SAR) operation does not preclude the Italian jurisdiction. In other words, the causation nexus is not interrupted. This is so because the intervention of national authorities is the aimed result of the articulated plan of the organised criminal group. State authorities are under the national and international obligation to take action and attempt to rescue persons in distress at sea. In this sense, authorities act under a state of necessity (in order to prevent a greater harm, i.e. the death of migrants). In this way, the organised criminal group (autore mediato) instrumentalises authorities so as to ensure that the ultimate goal of the criminal plan will occur in Italian soil. Jurisdiction is affirmed on grounds of Article 54 (3) Italian Criminal Code.
 
The Court of Cassation clarified that Italian jurisdiction persists also in respect of the other crimes the accused was facing for their relationship with the crime of migrant smuggling.
 
The Court of Cassation agreed with the Prosecution that the (i) conditions of the vessel, (ii) number of migrants on board, (iii) circumstances of the trip, (iv) helming inexperience of the de defendant, would suffice to ground a serious probability of wrecking of the vessel even if it was not a wanted consequence. It should be assessed the existence of dolo eventuale” and examined the possible re-qualification of the conduct.Accordingly, the Court of Cassation admitted the appeal of the Prosecution in this respect and sent the case back to the court of review so that it could assess the limits of the crime type of “malicious wrecking of a vessel” (naufragio colposo ex Article 449 (1) and (2) Criminal Code) ).
 
The appeal was otherwise dismissed. The Court of Cassation highlighted that the death of the migrants was related to the crime of migrant smuggling. Indeed, Article 12 (3) (b) Decree Law 286/1998 specifically foresaw the possibility of risk to the life or physical integrity of persons transported with the purpose of obtaining irregular entry in the envisaged country.
 
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)
Fecha de la Sentencia:
2014-12-10

Cuestiones transversales

Responsabilidad

Responsabilidad por

• Delito consumado

Base de responsabilidad

• Intención dolosa

Responsabilidad implica

• Delincuentes principales

Delincuente/Delito

Detalles

• Ocurrió a través de uno (o más) de las fronteras internacionales (transnacional)

Investigación

Organismos interesados

• Criminal Police
• Public Prosecutor

Información sobre el procedimiento

Sistema jurídico:
Derecho continental
Última sentencia judicial:
Tribunal Supremo
Tipo de Proceso:
Penal

The Public Prosecutor of Catania determined the arrest and ordered the precautionary detention of the defendants. The Judge for Preliminary Investigations of Catania confirmed such order. On 9 June 2014, in review (“sede di riesame”), the Court of Catania partially confirmed the decision of the Judge for Preliminary Investigations (Nº. 1105/2014). Specifically, it upheld it regarding migrant smuggling, annulled it in respect of the crime of “causing the wrecking of a vessel” and requalified “voluntary homicide” into “death or harm resulting from other crime” (Article 586 Criminal Code). The Court of Catania found no sufficient evidence that the defendant had purposely tampered with the engine. On the one hand, migrants had given conflicting statements in that respect and no one had actually seen the defendant manipulating the motor of the vessel. On the other, there would be no need for the engine to be hampered for a rescue operation to be triggered. Against this background, the death of the migrants should be understood as an unwanted consequence of facilitating irregular migration. The Public Prosecutor appealed, arguing that the precarious conditions of the vessel transporting the migrants should be enough to justify an indictment for “causing the wrecking of a vessel” and voluntary homicide. In the view of the prosecution, the (i) conditions of the vessel, (ii) number of migrants on board, (iii) circumstances of the trip, (iv) helming inexperience of the de defendant, made predictable and very realistic the risk of harm to the life of migrants and the sinking of the vessel.

 
 

Migrantes

Inmigrante:
234 smuggled migrants. 17 migrants died following the sinking of the vessel they travelled in.

Acusado / Demandado de primera instancia

Acusado:
R.H.H.
Sexo:
Hombre
Edad:
23
Nacimiento:
1991
Also charged with (i) causing the wrecking of a vessel, (ii) voluntary homicide (multiple counts). For further details, see "Facts" and "Commentary".

Cargos/Acusaciones/Decisiones

Acusado:
R.H.H.
Acusación:
Provisions against irregular immigration
Ley:
Decree Law 286/1998Article 12 (3) (a), (b), (d) 3-bis, 3-ter

Tribunal

Corte Suprema di Cassazione

Fuentes/Citas

Corte Suprema di Cassazione
Proc. N. 3345/15 Reg. Gen. 
10 December 2014