The inconvenient case of the Sea Watch 3: a dangerous precedent

(To Avv. Marco Valerio Verni)
03/07/19

Yesterday evening the judge for the preliminary investigations of Agrigento issued his order on the validation of arrest and request for precautionary measure made by the Public Prosecutor at the Court of the same city against the commander of the Sea Watch 3, Carola Rackete, under investigation for the notorious events of these days, for the crimes of Resistance or violence against warship (art. 1100 cod. Nav.) And resistance to a public official (art. 337 cp).
On the merits, the magistrate in question, in essence, has not only not validated the arrest of the suspect but, even, has declared:

1) the crime referred to in art. 1100 of the navigation code since, according to him, a unit of the Guardia di Finanza that operates in territorial waters cannot be considered a warship, according to an advanced interpretation, according to him, according to the Constitutional Court, with a sentence of the 2000;

2) the one referred to in art. 337 of the Criminal Code, because accomplished in the fulfillment of a duty, or that deriving from the respect of international treaties concerning the rescue of shipwrecked people at sea.

However, if the jurisdictional measures, as they say, must be respected, it does not mean, however, that they cannot be criticized, despite the necessary premise - obviously - of reasoning in the absence of the entire case file, but based only on the provision referred to, published by some press agencies.

As for the first point, in the opinion of the undersigned, the magistrate of Agrigento misinterpreted the sentence he referred to (the n. 35 of the 2000), which also intervened on the request for a referendum on the reorganization of the Guardia di Finanza.

In fact, the Agrigento magistrate wrote that "Indeed, by shared hermeneutical option of the Judge of Laws (see Court of Constitution, sent. N. 35 / 2000), the naval units of the Guardia di Finanza are considered warships only" when they operate outside territorial waters or in ports foreign countries where there is no consular authority ".

Well, going to read well, and in full, the text of the aforementioned sentence, in it, seems to affirm itself other: namely that "The naval units supplied by the Guardia di Finanza are qualified military ships, registered in special roles of the State's military fleet (...), flying the 'war flag' and are similar to those of the Navy (art. 63 and 156 of the rd 6 November 1930, No. 1643 - Approval of the new service regulation for the Regia Guardia di Finanza -); they are therefore considered military ships for the purposes of the military criminal law (art. 11 of the military penal code of peace); when they operate outside territorial waters or in foreign ports where there is no consular authority, they perform the police functions of the "warships" (art. 200 of the navigation code) and the articles are applicable to them. 1099 and 1100 of the navigation code (refusal of obedience or resistance and violence to a warship), referred to in articles 5 and 6 of the 13 law December 1956, n. 1409 (Rules for maritime surveillance for the purposes of suppressing tobacco smuggling) ".

In summary, the naval units of the Guardia di Finanza are always considered as military ships, flying the war flag and are assimilated to those of the Navy. In addition (but it is an addition, in fact), when they operate outside the territorial waters or in foreign ports where there is no consular authority, they perform the police functions of the "warships", with all that follows.

This does not mean, therefore, as erroneously assumed, that, on the contrary, when they are found in territorial waters, they are not, instead, to be considered "not from war", especially when certain conditions are met.

In order not to bore too much, it is enough to remember, among many, a sentence of the Court of Cassation, the n. 31403, section III, of 14 June 2006, according to which, also for the purpose of the existence of the crime pursuant to art. 1100 of the Cod. Nav., Is undoubted (the reference is to the case treated here, but it is clearly extensible to similar cases), “The status of a warship attributed to a patrol boat, not only because it was in the capacity of maritime police, and was commanded and equipped by military personnel, but above all because it is the legislator himself who indirectly registers the Navy of the Guard of Finance in this category, when in the 13 L. December 1956, n. 1409, art. 6, (rules for maritime surveillance for the purposes of suppression of tobacco smuggling) punishes acts of resistance or violence against this ship with the same penalties established by art. 1100 cn, for resistance and violence against a warship ".

In the same sentence cited, however, the judges themselves recalled that “Also for the purposes of the application of the art. 1099 cn (refusal of obedience to a warship), this Court has already had occasion to state that an armed patrol boat of the Guardia di Finanza, in maritime police service, must be considered a warship" (Cassation Section 3 ^, No. 9978 of 30.6.1987, Morleo, rv. 176694).

As for the second point, instead, for a more complete reasoning it is necessary to premise that, in a dynamic based on the respect of the rules, the latter should not be asserted with acts of force, at the limit, almost, of a private justice, but in the appropriate forums that, in the civilized world, is constituted by the national or international courts.

To simplify, I believe each of us has been taught that, if we boasted a right, and were denied it, it is the jurisdictional authorities we should address, avoiding acting on our own.

In the present case, a non-governmental organization has instead decided to challenge a state, in the name - according to those responsible - of respect for the law of the sea and of the international one.

Well, even if the Italian State, in this case, had violated the aforementioned rules, this should not have justified, automatically, what was then achieved, in terms of actions, by the commander of the Sea Watch: ie forcefully enter a port of that same State referred to above that, however, willy-nilly (net of what could later be the consequences) remains sovereign, despite the international obligations assumed and allegedly violated.

Otherwise, the aforementioned (commander) would have to reach some other port (on the other hand, he could very well have done it, given the many days of navigation that have nevertheless seen her at sea) and then, once hospitality has been found in another destination, take action in the appropriate jurisdictional offices to denounce Italy for all violations deemed committed.

On this point, I would just like to recall that the ship in question beats (va) the Dutch flag and that, therefore, it was as if the migrants had been received in that country, with all the consequences of the case. This too is a concept that - obviously inconvenient for the supporters of uncontrolled immigration against Italy - is often forgotten, although it must certainly be better harmonized and specified in the reference legislation (and who knows - de iure condendo - it cannot be done, in the future: yes, it would be interesting to see if there would still be a race to "rescue" by ships flying the French, German, Dutch and so on).

Moreover - and this is the other punctum dolens of the story - there was no reason for urgency or necessity, as it was also written by someone, also as a justification of the fulfillment of duty, that could justify such an action that - it is repeated -, besides violating the precise dispositions of a sovereign State, seems to have endangered the life of some financiers.

In fact, those who were really in need of care had already been disembarked, and on this point, two courts had already expressed themselves, a circumstance that, barely mentioned in the provision of the magistrate of Agrigento (but not then considered in its consequences) is often ignored: the administrative one of Lazio (TAR Lazio) and, if this were not enough, the same European Court of Human Rights (Rackete and Others v. Italy, application no. 32969 / 19), which, after addressing - I remember - precise questions to all the parties involved1, denied the applicants (ie the same commander of the boat and some migrants) le interim measures, evidently not seeing the existence of an imminent risk of irreparable damage, in the presence of which, on the other hand, they would have been arranged.

That of the Sea Wacth - it should be emphasized - it does not represent, however, a sporadic episode of rescue to the castaways (then, one could also discuss the notion of a shipwrecked person, related to the case in question), but the umpteenth of a systematic and repeated act in time that does not it has nothing to do with the original spirit of the law of the sea or the Dublin Regulation which, clearly, was certainly not created to deal with the transmigration of entire peoples. And that, politically, however, had to be supported by a sharing of burdens and responsibilities, at European level, which, instead, do not seem, in fact, to have been followed.

With all due respect to those who, on these trades, profit us and, for that very reason, continue to promote the waves: the consequences that can be expected in this regard, in terms of a massive resumption of hopeful journeys, are predictable in this regard. Italy, in the belief, even on the part of non-governmental organizations, to be able to safely enter the ports of our country in total autonomy and in disregard of internal political will.

Who knows what, in the meantime, the financiers involved in the affair will have thought and will think, and, with them, all the staff daily employed in patrolling our coasts and search and rescue.

Justice, it is said, is administered in the name of the Italian people: are we really sure that it is still really so?

1 The people who have been dismembered from the boat, their potential vulnerability, the measures envisaged by the Government, the current situation. The questions put to the applicants. The ship and their possible vulnerability.

Photo: Sea Watch (at the bottom of the poster of the international petition - in the German and English version but not Italian ... - launched by the Organization for the release of its commander arrested by a country like Italy "a member of the EU, openly opposed human rights and made entering the port a punishable offense ") / web