The obligation to provide assistance at sea corresponds to an ancient customary rule, it represents the basis of the main international conventions, as well as Italian maritime law, and constitutes a precise duty for all subjects, public or private, who have news of a ship or person in danger in any area of the sea where such a necessity exists. As such, it must be considered to take precedence over all bilateral regulations and agreements aimed at combating illegal immigration: the international conventions on the matter, to which Italy has adhered, therefore constitute a limit to the legislative power of the State and, based on articles 10, 11 and 117 of the Constitution, cannot be subject to derogation based on discretionary choices and evaluations of the political authority, since they assume, based on the principle ‘pacta sunt servanda’, a higher hierarchical rank with respect to internal regulations.
The failure to promptly indicate the POS, together with the decision not to let the 177 migrants disembark for five days even though the ship was already moored in the port of Catania, constitutes a clear violation of the aforementioned international regulations.
Personal freedom, as well as being protected by art. 13 of the Constitution as an inviolable right of the person, safeguarded by the reservation of jurisdiction and the absolute reservation of the law, is recognised as a minimum and essential guarantee of every individual in accordance with art. 3 of the 1948 Universal Declaration of Human Rights, has found detailed protection at a regional level within the Council of Europe, in accordance with art. 5 of the ECHR: the lack of a judicial provision or subsequent validation of government decisions is in itself sufficient to affirm the arbitrariness of the detention of migrants pursuant to art. 5 of the ECHR, given that art. 13 of the Constitution prescribes the cumulative satisfaction of both reservations, of jurisdiction and of law, in order for it to be considered a legitimate restriction of personal freedom. This has significant implications for the right, as per art. 5 par. 4 of the ECHR, to appeal to a court to challenge the legitimacy of the restrictive measure and obtain, in case of illegitimacy, its immediate cessation. The lack of provisions aimed at categorising a particular type of detention and the lack of an individual, reasoned and notified provision, exclude the possibility of ensuring immediate judicial control over the requirements justifying the measure.
The regulatory uncertainty regarding the identification of the competent State cannot be considered a sufficient reason for justifying the conduct, in terms of guilt, the regulatory uncertainty regarding the identification of the competent State, nor the purely permitted flexibility on the decisions to be adopted when identifying the POS and authorising disembarkation, since such flexibility cannot in any case be exempt from reasonable time limits without otherwise translating de facto into a measure restricting personal freedom, which is intolerable for the constitutional and supranational legal system.
It must be ruled out that the restriction of personal freedom that took place on board the Italian Coast Guard ship ‘U. Diciotti’ from 16/08/2018 to 25/08/2018 integrates the typological features of the ‘pure’ political act, so to speak, as such removed from jurisdictional review: it is considered a political act not the administrative act that has been issued on the basis of specifically political evaluations, but only the act that is the exercise of a political power.
It must certainly be excluded that the refusal of authorisation for the disembarkation of migrants rescued at sea for ten days can be considered a political act removed from jurisdictional control. It is not because it does not represent an act with a free end, as such attributable to supreme choices dictated by political criteria concerning the constitution, the safeguarding or the functioning of the public powers in their organic structure and in their coordinated application. In other words, we are not dealing with an act that pertains to the supreme general direction of the State considered in its unity and in its fundamental institutions. Rather, it is an act that expresses an administrative function to be carried out, albeit in implementation of a political policy, in order to reconcile the interests at stake and which, for this very reason, is grafted onto a regulation that marks its boundaries at various levels, international and national. The political motivations behind the behaviour do not distort its qualification, that is, they do not make political an act that is, and remains, ontologically administrative.
The notion of a political act is strictly interpreted and has an exceptional character, because otherwise the guarantee of jurisdictional protection, which the Constitution ensures as indefectible and with the characteristics of effectiveness and accessibility, would be emptied of its content. The principle of justiciability of acts of public power, of the subjugation of power to the law whenever it comes into contact with citizens, constitutes a basic feature of the Italian Constitution. The challenge of the act is the rule: a rule aimed at offering the citizen concrete protection of his individual subjective sphere against the multiple expressions of power in which the action of the public administration is realised. Living law confirms the recessive nature of the notion of political act, which coincides with the acts that pertain to the supreme general direction of the State considered in its unity and in its fundamental institutions. The existence of areas removed from jurisdictional union is confined within strict limits: therefore, only an extremely limited number of acts are not subject to jurisdictional control, where choices of specific constitutional and political importance are made; acts that it would not be correct to qualify as administrative and in relation to which the intervention of the judge would determine an interference of the judiciary in the sphere of other powers.
(unofficial machine translation)
SUPREME COURT OF CASSAZIONE
JOINT CIVIL DIVISION
CC – 18/02/2025 – filed 6/03/2025
has pronounced the following
ORDER
on the appeal registered under no. 17687/2024 R.G. brought by ***, represented and defended by AF – appellant –
against
Presidency of the Council of Ministers and Ministry of the Interior, represented and defended ex lege by the Attorney General – counter-defendants and cross-claimants – against sentence no. 1803/2024 of the Court of Appeal of Rome, filed on 13 March 2024.
Having heard the report made in the council chamber on 18 February 2025 by Councillor Emilio Iannello.
FACTS OF THE CASE
1. By appeal pursuant to art. 702-bis c.p.c., filed on 13 December 2018, ** , together with other Eritrean compatriots, he applied to the Court of Rome requesting the condemnation of the Italian Government in the person of the President of the Council of Ministers p.t. and the Ministry of the Interior, in the person of the Minister p.t., to pay compensation for the non-pecuniary damages suffered during the unlawful restriction of personal freedom that occurred on board the Italian Coast Guard ship ‘U. Diciotti’, from 16/08/2018 to 25/08/2018: in the first four days due to the lack of consent for the ship to dock in Italian ports; in the following six days, once the ship was allowed to dock in the port of Catania, due to the lack of consent for disembarkation on the mainland; alternatively, limited to this last period, due to the forced and arbitrary detention on the ship ‘U. Diciotti’ in the port of Catania without being allowed to disembark on the mainland.
The Ministry of the Interior and the Presidency of the Council of Ministers, appearing in court, objected on a preliminary basis that there was an absolute lack of jurisdiction as it was a so-called ‘political act’ removed from it; they contested the merits of the claim, noting that the well-known affair of the ship ‘Ugo Diciotti’ was part of an international context of strong tension between Italy and Malta and had also involved the EU authorities in Italy's attempt to stop landings on its own coasts or at least to obtain a redistribution at European level of the migrants rescued by the Italian authorities in international waters and disembarked on the Italian coasts.
2. By order dated 9 July 2019, the Court declared that it had no jurisdiction, deeming that the behaviour in question was political.
3. With sentence no. 1803/2024, made public on 13 March 2024, the Court of Appeal of Rome, while considering that ordinary jurisdiction existed, because it was not a political act, but an administrative act, fully open to review, nevertheless rejected the merits of the appellants' claim in the absence of fault on the part of the public administration (not alleged by the appellants and in any case to be excluded “in light of the concrete modalities with which the fact was realised, as well as the complexity and the non-univocal nature of the reference legislation”) and, in any case, in the absence of allegation and proof of consequential damage.
4. An appeal was lodged against this sentence with the Court of Cassation, based on a single ground.
The Presidency of the Council of Ministers and the Ministry of the Interior filed a counter-appeal, with the same act proposing an incidental appeal ‘possibly conditional’ on the basis of two grounds.
5. By decree dated 10 October 2024, the appeal was referred to the Joint Divisions in relation to the proposed challenge to jurisdiction with the first ground of the ‘possibly conditional’ cross-appeal.
6. The Attorney General filed a brief, concluding for the rejection of the main appeal with the consequent absorption of the question of jurisdiction.
The appellant has filed a brief.
REASONS FOR THE DECISION
1. With the sole ground for the main appeal, complaint, with reference to art. 360, first paragraph, num. 3, cod. proc. civ., ‘violation and/or false application of articles 2043 and 2059 c.c. in relation to articles 13, 24, 111 and 117 of the Constitution, article 5 of the European Convention on Human Rights and article 6 of the Charter of Fundamental Rights of the European Union and articles 7 and 14 of directive 2008/115/EC’.
He maintains that the Court wrongly attributed importance to the complexity of the legislation regarding the rescue of migrants in the SAR zone, omitting to consider that the basis of the claim was a purely material conduct, without any administrative or judicial provision, thus violating articles 13, 24 and 111 of the Constitution.
He disputes that the guilt of the Italian authorities had not been alleged, noting that the alleged non-pecuniary damage had not been caused by the failure to grant the so-called POS (Place of Safety), but by the restriction of personal freedom not justified by administrative or judicial measures.
In this perspective, he emphasises (citing precedents of this Court on the subject of extending the detention of migrants: Cass. no. 2789 of 2012, no. 9596 of 2012, no. 22788 of 2012, no. 22790 of 2012, as well as Constitutional Court no. 105 of 2001) that ‘in the absence of an express administrative measure, let alone its judicial validation, the conduct of the Public Administration. No. 105 of 2001) that ‘in the absence of an express administrative measure, let alone the relative judicial validation, the conduct of the Public Administration which deprives an individual of his personal freedom for ten whole days, forcing him into the cramped confines of a military ship, constitutes arbitrary detention, which does not in any way constitute the exercise of administrative power, since this is not a case of mere material conduct that is carried out outside and above the law and above all above the Constitution’.
He also complains that the trial court erroneously held that non-pecuniary damage had not been proven, noting that the deprivation of personal liberty for ten days is in itself an injury to human dignity sufficient to constitute non-pecuniary damage and that the judge may resort to simple presumptions to assess its negative impact on living conditions.
2. With the first ground of the ‘possibly conditional’ cross-appeal - entitled ‘on the absolute lack of jurisdiction and on the configurability of the political act: violation and/or misapplication of art. 7 c.p.a. in relation to art. 360, co. 1 n. 3 c.p.c.’ ─ the Administrations in the epigraph complain that the Court of first instance erroneously held that the conduct of the Ministry of the Interior in the case in question did not constitute a political act, but an act of high administration as such open to review.
They argue that the political act has both a subjective element (originating from a government body) and an objective element (expression of the function of political direction).
They argue that:
─ ‘the only real reason that led the Italian State to authorise the disembarkation is to be found in the exclusively political decision to suspend the – serious and blatant – non-fulfilments of the State of Malta and to intervene, nevertheless, immediately, in a supplementary manner to the same, in order to provide assistance to the migrants, continuing, at the same time, to urge the Maltese authorities to release the POS, as it was essentially a matter of finding a
‘solution to the international dispute that had arisen’;
─ ’the legal obligation: i) to provide for rescue in the SAR zone;
ii) to indicate the port at which they should have landed, the vessel that was transporting them, first, and the ship Diciotti, later; iii) to proceed with the consequent operations of disembarkation, identification, etc., was the responsibility of Malta; therefore, the government initiative was adopted following the - or rather imposed by - the violation of obligations by Malta’;
─ on the other hand, it cannot be established that the ship ‘U. Diciotti’ docked at the port of Catania, given that:
a) this circumstance cannot overturn the legal principle of responsibility and primary reception obligations of the States;
b) in relation to these responsibilities, the ship ‘Diciotti’ could well have remained in the middle of the sea in an equidistant position for a long time to come, as the other State certainly could not have avoided the obligations imposed on it by international law simply because of the passage of time, which, on the contrary, would have aggravated its position;
c) the technical stopover in Catania was a choice made by the maritime authority exclusively for reasons of convenience related to the supply of food, water and other provisions, supplies that could easily have been provided in the middle of the sea;
─ in this context, the extension of the ‘technical stopover’ was determined by the ‘objective need to await the resolution of the international dispute’ until the day (24 August 2018) on which the meeting at European level, set for this purpose after Italian requests, was held;
─ it was therefore no coincidence that, only after the outcome of the European negotiations, on 24 August 2018 the Harbour Master's Office (IMRCC) made a formal request for a POS to the Department for Immigration and Civil Liberties (a division of the Ministry of the Interior) which, ‘given the novelty of the situation resulting from the European decision, it was then promptly issued, consequently leading to the disembarkation of the migrants during the night between 25 and 26 August 2018’;
─ the monitoring and control of migratory flows are also essentially connected with the protection of the national public interest, as there are clear issues relating to public order and security, in particular in relation to ’ in order to avert the possibility that Islamic extremists ... may enter/pass through Europe using the routes used by human traffickers or travelled by refugees seeking international protection’.
They note from another point of view that the overall conduct of the government as described above “did not directly affect migrants, but at most indirectly affected them”.
3. With the second plea - entitled ‘on the lack of standing of the plaintiffs and the irregularity of the power of attorney: nullity of the sentence in relation to art. 360, co. 1, n. 4 c.p.c.’ ─ the defendant administrations complain that the Court of Appeal did not examine the preliminary objection they raised regarding the lack of standing of the alleged migrants and, therefore, of the current appellant, with repercussions also on the validity of the power of attorney.
4. The scrutiny of the stated reasons makes it necessary to proceed with a joint examination, for obvious reasons of mutual logical dependence, of the first reason of the incidental appeal, even if proposed as ‘possibly conditional’, and of the sole reason of the main appeal.
This is not precluded by the principle, consolidated in the case law of these United Sections (see, among others, Cass. U. Sect. 06/03/2009, no. 5456; Id. 04/11/2009, no. 23318; Id. 25/03/2013, no. 7381; Id. 30/11/2022, n. 35308; Id. 07/12/2023, n. 34318) and evoked by the P.M. in his conclusions, according to which ‘the incidental appeal proposed by the totally victorious party in the judgement on the merits, which involves preliminary questions of procedure, including those relating to jurisdiction, or preliminary questions of merit, is in the nature of a conditional appeal, regardless of any express indication by a party, and must be examined as a priority only if the preliminary procedural or preliminary substantive questions, which can be raised by the court of its own motion, have not been the subject of an explicit or implicit decision (where the latter is possible) by the court ruling on the merits. If, on the other hand, the said decision has been made, this incidental appeal must be examined by the Court of Cassation, only in the presence of current interest, which exists only in the event that the main appeal is well-founded.
This principle does, however, justify postponing the examination of the second ground of the cross-appeal, given that on the question it raises (failure to rule on the alleged lack of standing to bring the action and on the also alleged nullity of the power of attorney) the Court of Appeal, as will be highlighted below, has in fact implicitly ruled.
On the other hand, it cannot be used to justify the postponed examination of the question of absolute lack of jurisdiction, although the Court (...) has also ruled on this, moreover expressly The inclusion of the question of jurisdiction among the preliminary questions evoked by this principle was affirmed by the Court of Cassation. Sez. U. n. 5456 of 2009 ─ overcoming a previous conflict on the point that had arisen within the jurisprudence of the same United Sections ─ with arguments clearly referring to (only) cases of relative lack of jurisdiction, as a consequence of the rules of division between special courts and ordinary courts or of those of international law on the division of jurisdiction between courts of different countries. From the first point of view, it has been particularly emphasised (see cited sentence, in motivation, paragraphs 9.1 – 9.3) the principle of the incommunicado detention of judges belonging to different orders has been superseded in favour of the principle of unity of jurisdiction for the purposes of the justice service for the community (Constitutional Court no. 77 of 2007) and that of the reasonable duration of the trial, with the consequent
‘approximation to a system of detection of the type of that of jurisdiction, based on the will of the party to keep the issue alive, giving preclusive importance to phenomena of tacit acquiescence, which previously had no relevance": this trend - it can be added here - is finally also endorsed by the legislator with the provision of art. 59 of law no. 69 of 18 June 2009.
It follows that the aforementioned principle concerns (and is based on) a notion of ‘jurisdiction’ understood ‘not in itself [as] ... the power to hear given disputes, attributed for a specific part to each of the different orders of judges of which the order is endowed, but ... [as] power that the law assigns and that is in accordance with the Constitution that is assigned to the judges so that the effectiveness of the same legal system is implemented in the judgement’, and it is the result of the prevalence to be assigned, “for the purposes of the justice service”, to the need ’that the judicial authority, seen as a whole, gives a substantive response to the request for justice’ (so in the grounds of Cass. no. 5456 of 2009, cit. parr. 9.4 – 9.5).
Therefore, the question of absolute lack of jurisdiction remains extraneous to it, with which what is contested is the very existence, i.e. for any order of judges, of the power to hear the dispute for the purposes of justice.
Indeed, it seems clear that such a question, since it ultimately concerns the very ‘justiciability’ of the interest whose infringement is the basis of the application, is inextricably linked to the substantive question posed by the main action and, in a sense, forms part of it. Indeed, it would not be possible to recognise, in theory, the validity of the claim for compensation without first recognising the susceptibility of that claim to obtain jurisdictional protection.
5. Therefore, moving on from the question – logically preliminary, in view of what has been said – posed by the first ground of the cross-appeal, it must be noted that it is unfounded.
In fact, it must be ruled out that the typological features of a ‘pure’ political act, as it were, can be recognised in the behaviour indicated as the basis for the claim for compensation, as such removed from jurisdictional review.
5.1. The United Sections of this Court recently provided, with sentence no. 27177 of 22/09/2023, particularly clear indications on this notion, which is worth recalling here in its entirety.
The last sentence of Article 7, paragraph 1, of the Administrative Procedure Code ─ taking up a provision already contained in Article 31 of the Consolidated Act of the (..) Council of State (approved by Royal Decree No. 1054 of 1924), and, even earlier, in Article 3, paragraph 2, of the law establishing the IV Section of the Council of State (law n. 5992 of 1889) ─ excludes from the jurisdiction of the administrative judge the acts and provisions issued by the Government in the exercise of political power.
In order to qualify an act as political, case law (Cons. Stato, Sez. IV, 7 June 2022, n. 4636) requires two conditions:
─ from a subjective point of view, the act must come from a body responsible for the direction and management of public affairs at the highest level;
─ from an objective point of view, the act must be free in its aim because it can be traced back to supreme choices dictated by political criteria; in other words, it must concern the constitution, the safeguarding or the functioning of public powers in their organic structure and in their coordinated application.
It is not considered to be such an administrative act that has been issued on the basis of specifically political evaluations, but only an act that is the exercise of political power.
The notion of a political act is strictly interpreted and has an exceptional character, because otherwise the guarantee of jurisdictional protection, which the Constitution ensures as indefectible and with the characteristics of effectiveness and accessibility, would be emptied of its content.
The principle of justiciability of acts of public power, of the subjugation of power to the law whenever it comes into contact with citizens, constitutes a basic feature of the Italian Constitution.
The challenge of the act is the rule: a rule aimed at offering the citizen concrete protection of his individual subjective sphere against the multiple expressions of power in which the action of the public administration is realised.
Living law confirms the recessivity of the notion of political act, which coincides with the acts that pertain to the supreme general direction of the State considered in its unity and in its fundamental institutions.
The existence of areas exempt from jurisdictional control is confined within strict limits (Cass. Sez. U. 02/05/2019, n. 11588, cit.). Therefore, only an extremely limited number of acts involving choices of specific constitutional and political importance are not subject to jurisdictional control; these acts cannot be correctly classified as administrative and the intervention of the judge would interfere with the judicial power in the context of other powers (Cons. Stato, Sez. V, 27 July 2011, n. 4502).
For the purposes of the justiciability of the act, alongside the characteristics of the provision, it is necessary to look at the substantial dimension of legality, which requires that the act of exercising power be susceptible to being compared with the norms that govern it. Furthermore, the presence of legally relevant interests must be evaluated: if there are no qualified differentiated situations or if there are only interests of mere fact, then it is possible to speak of an act that cannot be questioned precisely because it does not directly touch on legal situations.
The keystone for the purposes of judging the unquestionability of an act of public power is, in general, the lack of specific legal parameters aimed at recognising advantageous positions worthy of protection.
In fact, art. 101, second paragraph, of the Constitution is relevant, which, in establishing the principle that judges are subject only to the law, identifies in the law the basis and the extent of the judge's power to pass judgement.
This means that, in the absence of a legal parameter for politics, the review must stop: by constitutional statute, the judge cannot be called upon to do politics in place of the representative bodies. This is precluded by the legal principle of the separation of powers. The ‘free zone’ is the reflection of the claim of a political nature of the act that does not lend itself to a legal reinterpretation.
The unquestionability is the predicate of an act not subjected by the legal system to constraints of a legal nature.
Where, vice versa, there is predetermination of the canons of legality, that same union is revealed to be dutiful.
The judge, whatever the court to which he belongs, is not only respectful of the areas of attribution of powers, but also, again by constitutional statute, guarantor of legality, and therefore does not back down where the spaces of political discretion are circumscribed by constraints placed by norms that mark the boundaries or direct the exercise of government action.
The justiciability of the act depends on the substantial regulation of power. Therefore, if there is a law that regulates power, that establishes limits or rules for its exercise, for that part the act is subject to review.
This approach is consistent with the conclusions of constitutional jurisprudence.
With sentence no. 81 of 2012, the Constitutional Court established that the spaces of political discretion find their boundaries in the principles of a legal nature established by the legal system both at a constitutional and legislative level; and when the legislator predetermines the rules of legality, politics must abide by them in respect of the fundamental principles of the rule of law.
To the extent that the scope of discretionary power, even the very broad one that characterises government action, is circumscribed by constraints imposed by legal norms that mark its boundaries or direct its exercise, respect for these constraints constitutes a requirement for the legitimacy and validity of the act, subject to review in the appropriate forums.
And among these constraints, the respect and safeguarding of the inviolable rights of the individual is certainly of primary importance.
The actions of the Government, even when motivated by political reasons, can never be considered exempt from jurisdictional control when they exceed the limits imposed by the Constitution and the law, especially when the fundamental rights of citizens (or foreigners), constitutionally protected, are at stake.
This methodological perspective informs the development of case law, of the Council of State and of this regulatory Court.
The administrative judge has come to the conclusion that the unquestionability of the act in a jurisdictional context must be excluded in the presence of a norm that predetermines the methods of exercising political discretion or that in any case circumscribes it: the act is contestable, even if it comes from the administrative authority responsible for political direction and management at the highest level of public affairs, whose legislative source recognises the existence of an active legal situation protected by the law referring to a good of life that is the object of the function carried out by the administration (Cons. Stato, Sez. I, 19 September 2019, n. 2483).
5.2. In light of these premises, it must certainly be excluded that the refusal of authorisation for the disembarkation of migrants rescued at sea for ten days can be considered a political act removed from jurisdictional control.
It is not, because it does not represent an act with a free purpose, as such attributable to supreme choices dictated by political criteria concerning the constitution, the safeguarding or the functioning of public powers in their organic structure and in their coordinated application.
In other words, we are not dealing with an act that pertains to the supreme general direction of the State considered in its unity and in its fundamental institutions.
Rather, it is an act that expresses an administrative function to be carried out, albeit in implementation of a political policy, in order to reconcile the interests at stake and which, for this very reason, is grafted onto a regulation that marks its boundaries at various levels, international and national.
The political motivations behind the behaviour do not distort its qualification, that is, they do not make political an act that is, and remains, ontologically administrative.
5.3. There is therefore no absolute defect of jurisdiction, nor even a relative defect, in favour of the administrative judge (which, in truth, is not even objected to by the administrations that have brought the action), as the matter is not reserved to the exclusive jurisdiction of the administrative judge.
6. Having therefore rejected the first ground of the cross-appeal and moving on to examine the main appeal, it must be noted, also in light of the preceding considerations, that it is well-founded with reference to both aspects of the complaint.
7. It should first be noted that the factual circumstances and the arguments put forward in the introductory appeal to substantiate the claim, reported in the one under examination with full discharge of the charges referred to in Articles. 366 n. 6, deprive of foundation, especially in light of the considerations that will be developed below, the finding of insufficient allegation of the administration's fault profiles.
In this regard, it should first of all be noted that, contrary to what is postulated by the defendants in the counter-appeal, the appellant does not fail to indicate the legal parameter to which the alleged violation of the law refers, clearly indicated in the liability for tortious non-contractual liability pursuant to art. 2043 of the Italian Civil Code, nor did he intend to argue that, in the case in question, it is necessary to disregard the requirement of administrative negligence, nor, finally, did he fail to attach the prerequisites in the specific case.
Rather, it criticised the negative assessment made by the Court of Merit regarding the existence of these prerequisites as being invalidated by an error of perspective, that is, the error committed in relating this assessment to the failure to grant the so-called POS (Place of Safety) rather than to the restriction of personal freedom not justified by administrative or judicial measures, in violation of Article 13 of the Constitution.
Violation of which specific factual indications were provided by quoting verbatim (on pages 18-19 of the introductory act and then on pages 66 and 67 of the appeal act, specifically referred to in the appeal, pages 21-22) the contents of two reports sent to the Public Prosecutor's Offices of Agrigento and Catania by the National Guarantor of the Rights of Persons Detained or Deprived of Personal Liberty, who boarded the Nave Diciotti on 23 August 2018, which, among other things, state:
‘persons are not allowed to disembark from the vessel despite the fact that there is no reasoned act of limitation of personal freedom ordered against them by the competent Authority, nor any apparent practical reason for impediment’; ’[there is on board] ... the presence of both an internal surveillance device on board the ship composed of teams of four crew members, one of whom is armed, who take turns to constantly monitor the deck where the migrants are housed, and a group of armed police stationed on the quay at the foot of the gangway leading to the vessel‘;
‘a video surveillance system is in operation on the deck, making every area of the migrants’ living area visible from the bridge’;
‘when boarding the ship, the rescued migrants had their mobile phones and personal belongings taken away from them and ... they were not returned’, thus preventing them from “communicating with the outside world, including the possibility of contacting their families and loved ones”.
8. Having said that regarding the burden of proof, it should be noted that, on the merits, regarding the denied assumption of guilt, the Court's reasoning essentially rests on the following two arguments:
- the national authorities acted in a situation of questionable judgement such that the existence of negligence could at least be excluded or considered completely insufficient; the damaging conduct, essentially consisting of a ten-day delay in indicating the POS (Place of Safety) and the consequent refusal of authorisation to disembark, is part of a context of great uncertainty regarding the international regulations governing the matter of disembarkation following maritime rescue operations: this uncertainty has generated a real ‘conflict’ of responsibilities, especially between coastal countries, and has led to the emergence of real international disputes, such as the one between Malta and Italy; in particular, there is a lack of clear rules regarding the identification of the State that, after first aid, must take charge of the rescued subjects;
- in any case, there does not appear to be a legal obligation on the part of the competent State to issue the POS or to issue it within a certain period of time and according to certain procedures: In the case in question, the POS was denied on 17 August and only authorised on 25 August 2018; a directly enforceable legal obligation can only be recognised with reference to rescue at sea, given the fundamental right to life; the rescue operation at sea does not create a real ‘right of entry to port’ or a ‘right to disembark’; the international SAR and SOLAS Conventions and the IMO Guidelines do not require States to allow unlimited access to their ports for vessels rescued at sea, as they retain the power to regulate entry into the territories over which they exercise sovereignty; there is therefore the possibility of opening an intra-procedural phase aimed at reconciling all the interests at stake, first and foremost that of protecting public order; this procedure must be considered on a case-by-case basis through a not always easy balancing between humanitarian needs, on the one hand, and those of combating the phenomenon of migration by sea, on the other; inevitably, this procedure may result in delays in disembarkation, which must however be minimised.
From both these perspectives, the reasoning of the Court of merit appears to lack argumentative effectiveness capable of contrasting the factual and legal foundations of the claim for compensation, and in some respects even contradictory.
9. Before and in order to explain the reasons, it is useful to briefly recall the essential features of the regulatory framework within which the case must be placed for the purposes of the aforementioned assessment:
— the obligation to provide assistance at sea corresponds to an ancient customary rule, it represents the basis of the main international conventions, as well as of Italian maritime law, and constitutes a precise duty for all subjects, public or private, who have news of a ship or person in danger in any area of the sea where such a need exists;
— as such, it must be considered to take precedence over all bilateral regulations and
agreements aimed at combatting illegal immigration;
— the international conventions on the subject, to which Italy has adhered, therefore constitute a limit to the legislative power of the State and, based on articles 10, 11 and 117 of the Constitution, cannot be subject to derogation based on discretionary choices and evaluations of the political authority, since they assume, based on the principle ‘pacta sunt servanda’, a higher hierarchical rank with respect to internal discipline;
— this obligation is set out in more detail, with regard to the specific activity of rescue at sea, in the Convention for the Safety of Life at Sea (SOLAS Convention, an acronym for Safety Of Life At Sea, of 1974, ratified by Italy with law no. 313 of 23 May 1980), in the Convention for the Safety of Life at Sea (SOLAS Convention, an acronym for Safety Of Life At Sea, of 1974, ratified by Italy with law no. 313 of 23 May 1980), in the Convention for the Safety of Life at Sea (SOLAS Convention, an acronym for Safety Of Life At Sea, of 1974, ratified by Italy with law no. 313 of 23 May 1980), in the Convention for the Safety of Life at Sea (SOLAS Convention, an acronym for Safety Of Life At Sea, of 19 SOLAS Convention, acronym for Safety Of Life At Sea, of 1974, ratified by Italy with law no. 313 of 23 May 1980), in the International Convention on Search and Rescue at Sea (so-called SAR Convention, acronym for Search And Rescue, also known as the Hamburg Convention: ratified by Italy with law no. 147 of 3 April 1989, it was concretely implemented with Presidential Decree no. 662 of 1994, which attributed the search and rescue service to the primary competence of the Ministry of Infrastructure and Transport which, for this purpose, makes use of the Harbour Master/Coast Guard Corps), as well as in the Convention of the
search and rescue service to the primary competence of the Ministry of Infrastructure and Transport, which, for this purpose, makes use of the Harbour Master's Office/Coast Guard), as well as in the 1982 United Nations Convention on the Law of the Sea of Montego Bay (the so-called UNCLOS Convention, acronym for United Nations Convention on the Law of the Sea, ratified by Italy with law no. 689 of 2 December 1994);
— in particular, the Hamburg Convention, in accordance with the principle of international cooperation, obliges coastal states to provide a ‘Search and Rescue’ service in the maritime zones under their jurisdiction, divided by agreement between them, and to coordinate the various SAR services among themselves; to this end, each Member State is required to establish a Maritime Rescue Coordination Centre (MRCC) as well as specific operational plans that provide for the various types of emergency and, in relation to these, the competences of the centres in charge; this is in order to ‘ensure that assistance be provided to any person in distress at sea... without distinction of nationality or status or the circumstances in which that person is found’ (Chapter 2.1.10); to
‘[...] provide them with initial medical or other assistance’ and “transfer them to a place of safety” (Chapter 1.3.2);
─ the State responsible for a SAR area, in the event of an emergency at sea in its area of responsibility, has the obligation to intervene by assuming, through its Rescue Coordination Centre (RCC) or Rescue Sub Centre if designated (RSC), the coordination of rescue operations with the use of SAR units, but also with military and/or civilian units;
─ the fact remains that both the SAR Convention (chapter 3.1.9) and the SOLAS Convention, as interpreted by the majority doctrine, provide for a subsidiary duty of activation on the part of the States that are party to them, in the sense that the failure of the competent State to activate the Convention obliges the other States to collaborate to meet the needs of the shipwrecked and to bring them to safety, and this regardless of the nationality of the ship that carries out the rescue and, therefore, the duties of the flag State;
─ it cannot therefore be considered that the responsible State is always the flag State as the holder of jurisdiction over the rescuing ship; and in fact, apart from the fact that this State could be thousands of kilometres away from the intervention area, in the event of a dangerous situation, the application of the provisions of the SAR Convention prevails, based on the principle of maximum speed and efficiency in rescue operations, rather than on the formal fact of the existence of jurisdiction over the rescuing ship (see in this sense, Cons. Stato 25/02/2025, n. 1615, in motivation, par. 33.2);
─ the State responsible for the rescue must organise the disembarkation ‘as soon as reasonably possible’ (SAR Convention, chapter 3. 1.9), providing a safe place in which to finish the rescue operations; it is only with the concrete indication of the POS, and with the subsequent arrival of the shipwrecked at the designated safe place, that, in fact, the Search and Rescue activity can be considered concluded;
— in the context of the SAR Convention, based on the subsequent interventions that have integrated its fundamental principles, ‘place of safety’ means a ‘place’ where not only the ‘safety’ – understood as physical protection – of people rescued at sea, but also the full exercise of their fundamental rights, including, for example, the right of refugees to seek asylum; in the case of rescue operations for migrants, the SOP is determined according to the procedures agreed with the Ministry of the Interior (standard operating procedures no. 9/2015 of September 2015), which is the competent department for immigration matters, also to allow the specific fulfilments referred to in art. 10-ter of the Consolidated Law on Immigration (identification of foreign citizens rescued during sea rescue operations);
─ Resolution MSC.167(78) of 20 May 2004 (Guidelines on the treatment of persons rescued at sea) excludes the ship itself from being considered a POS, if not temporarily (par. 6.13:
‘A rescue ship should not be considered a safe place based solely on the fact that the survivors are no longer in immediate danger once on board the ship. A rescue ship may not have adequate facilities and equipment to support other people on board without jeopardising its own safety or adequately caring for the survivors. Even if the ship is able to safely accommodate the survivors and can act as a temporary safe haven, it should be relieved of this responsibility as soon as alternative arrangements can be made (see in this sense Cass. pen. 16/01/2020, n. 6626, relating to the ‘Rackete case’; see also Cons. Stato no. 1615 of 2025, in motivation, par. 35);
— where the rescue at sea was carried out by naval units of the Italian Coast Guard, the Italian legislation implementing the aforementioned international regulations - namely, the Coast Guard directive SOP 009/15 - provides that the request for assignment of the POS must be submitted by MRCC Rome to the National Coordination Centre (NCC) and subsequently forwarded to the Department for Civil Liberties and Immigration of the Ministry of the Interior, which is responsible, in practice, for the actual designation of the POS; in accordance with the aforementioned SOP directive, the indication of the POS constitutes a due intra-procedural administrative act, without any discretion in the matter;
- in fact, the States retain a margin of ‘technical discretion’ only for the purpose of identifying the most appropriate disembarkation point, taking into account the number of migrants to be assisted, their sex, their psychophysical conditions and the need to guarantee a reception facility and adequate medical care; without prejudice to the obligation to indicate the safe place where the declared SAR event is to be concluded, delays in designating it could therefore be justified (only) in light of the need to identify a place that is adequate for the needs that arise on a case-by-case basis.
10. In the light of these unequivocal indications, the premise from which the Court of Appeal starts, regarding the ‘absence of clear rules regarding the identification of the State that, after first aid, must take charge of the rescued subjects’ is already shown to be unfounded.
In the case in question, according to what is undisputed in the case, the migrants were rescued and received by a unit of the Coast Guard and were on board it when the conduct alleged to be harmful and civilly unlawful began and continued. It must therefore be considered that, regardless of the disputes regarding the competent State according to the distribution in SAR zones, the rescue operations had in fact been assumed under the responsibility of an Italian SAR authority, which was required by conventional rules to complete them, organising the disembarkation, ‘in the shortest time reasonably possible’.
There can be no doubt, therefore, that the failure to promptly indicate the POS, together with the decision not to disembark the 177 migrants for five days even though the ship was already moored in the port of Catania, constitutes a clear violation of the aforementioned international regulations.
Quite correctly, the Court of Appeal (which did not, however, draw consistent conclusions from this) observed that the procedure for the designation of the POS is an administrative act that is procedural in nature, binding in an and discretionary in quomodo, inherent to the identification of the most appropriate landing point on national territory, highlighting that this choice involves technical assessments regarding the location based on the number of migrants to be assisted, gender, psychophysical conditions, the need to guarantee a reception facility and appropriate medical care after disembarkation.
However, he neglected to consider that political assessments related to the control of migratory flows are to be considered extraneous to this context.
However, in the present case, according to the administrations themselves, these are the only factors that have determined the postponement of the disembarkation in order to await decisions at a European level, which, moreover, are in no way intended to settle the dispute that has arisen between Malta and Italy over who is responsible for the rescue operations, but are limited to identifying the States and Bodies between which the migrants are to be distributed (an independent phase that is in no way prejudiced by the completion of the rescue operations), and this, moreover, on an exclusively voluntary basis.
11. However, it is the related aspects linked to the violation of the personal freedom of the migrants that more properly characterise the perspective in which the case in question must be evaluated in relation to the inferred civil liability.
It is worth remembering that personal freedom, as well as being protected by art. 13 of the Constitution as an inviolable right of the person, guarded by the reservation of jurisdiction and the absolute reservation of the law, is recognised as a minimum and essential guarantee of every individual according to art. 3 of the 1948 Universal Declaration of Human Rights, and has found detailed protection at a regional level within the Council of Europe, in accordance with article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, and subsequently, at an international level within the United Nations, in accordance with article 9 of the International Covenant on Civil and Political Rights of 1966. Finally, art. 6 of the Charter of Fundamental Rights of the European Union establishes the right to ‘liberty and security’ of ‘every individual’.
On the basis of this regulatory framework, aimed at guaranteeing the inviolability of the person, it is necessary to evaluate whether the detention of the migrants on board the Diciotti ship constitutes an arbitrary violation of personal freedom.
In this regard, particular importance is given to art. 5 par. 1 lett. f) ECHR which exceptionally allows for the deprivation of personal freedom in the specific case of the regular arrest or detention of a person to prevent them from entering the territory illegally, or of a person against whom an expulsion or extradition procedure is in progress.
From this perspective, however, unless the detention on board the coastal vessel of migrants who have not yet been fully identified (and potentially entitled to the right to asylum pursuant to art. 10, third paragraph, of the Constitution) can be considered as part of expulsion or extradition proceedings, it cannot even be hypothesised that said detention can find supranational coverage as a measure (similar to arrest or regular detention) aimed at preventing illegal entry into the territory.
Such an interpretation of the conventional norm was clearly rejected by the ECHR in the judgement Khlaifia and Others v. Italy, relating to a case — in some respects similar to the one in question — of detention of Tunisian migrants on board ships, moored in the port of Palermo, as a result of an act of the Executive.
On that occasion, the Court of Strasbourg condemned Italy for violating art. 5 of the ECHR, excluding the existence of the exception referred to in paragraph 1, letter f) of art. 5, highlighting that this regulation, in requiring that any deprivation of liberty be carried out in the manner provided for by law, requires that any arrest or detention have a legal basis in domestic law and, as a priority, in the Constitution, it being necessary, in accordance with the principle of legal certainty, that the conditions restricting personal freedom be clearly intelligible and that the law be precise and predictable in its application to citizens. The Court therefore found, in that case, that the restrictive measures were arbitrary due to violation of the absolute reserve of law and the reserve of jurisdiction, prescribed pursuant to art. 13 of the Constitution.
Similarly, in the case under examination, the lack of a judicial order or subsequent validation of the government's decisions is in itself sufficient to affirm the arbitrariness of the detention of migrants pursuant to art. 5 ECHR, given that art. 13 of the Constitution prescribes the cumulative satisfaction of both reservations, of jurisdiction and of law, in order for it to be considered a legitimate restriction of personal freedom.
This has significant implications for the right, as per art. 5 par. 4 of the ECHR, to appeal to a court to challenge the legitimacy of the restrictive measure and obtain, in case of illegitimacy, its immediate cessation. The lack of provisions aimed at typifying a particular case of detention and the lack of an individual, reasoned and notified measure, exclude the possibility of ensuring immediate judicial control over the requirements justifying the measure.
12. The above considerations provide a legal framework of such clarity and consistency as to render untenable the assumption that there are insufficient elements to affirm the fault of the defendant administrations.
12.1. It is well known that, for a harmful event to be attributable to the responsibility of the public administration, this attribution cannot take place on the basis of the mere objective fact of the illegality of the administrative provision, requiring, instead, a more penetrating investigation regarding the assessment of fault, which, together with intent, constitutes an essential requirement of liability in tort.
The existence of this element will refer not to the acting official, but to the public administration as an organisation, and will be configurable if the administrative act has been adopted and executed in violation of the rules of impartiality, correctness and good administration which must inspire the exercise of the administrative function, and which the ordinary judge has the power to evaluate, as external limits to administrative discretion.
Even if we consider not the individual civil servant, but the public administration as an organisation, and therefore as a unit (at least in individual sectors), the fault must be evaluated in the aforementioned terms.
Therefore, in principle, the relevance of an excusable error committed by the public administration cannot be excluded.
The emphasis must be shifted to the excusability of the error in individual cases.
And on this side there is no doubt that the error in the interpretation of the law can be considered, exceptionally, excusable only if it can be traced back to an objective obscurity (attested, possibly, by persistent interpretative contrasts) of the violated norm (Cass. n. 5361 of 1984) or otherwise inevitable according to the indications provided by the Constitutional Court (sent. n. 364 of 1988 and others), operating, in any other case, the rule of inexcusable error iuris (Cass. no. 12839 of 1992; no. 2762 of 1978).
An essential element for the existence of excusable error is, therefore, its inevitability, determined by objective causes, unrelated to the agent, which ends up excluding guilt, understood as a form of qualification of the subjective action in the cases of responsibility.
An excusable error, therefore, makes different behaviour unexigible, emphasising, even if only in the psychological sense, the so-called unexigibility. Although this has an objective nature and is not foreseen in our legal system, but in the German one, it finds, in the context of the relevance of the psychological element, a first recognition in sentence no. 364 of 1988 of the Constitutional Court on the subject of unavoidable error in criminal law.
Since it is a question of assessing the excusability of the error, it can only be done ex ante, that is, by putting oneself in the same position as the acting subject was in when he made the error.
The assessment of the existence of an excusable error, being a factual assessment, falls within the exclusive competence of the judge of merit and cannot be challenged in the Court of Cassation, if adequately motivated (Court of Cassation no. 2424 of 2004).
This evaluation must be all the more rigorous when, as in this case, it deals with behaviour that is harmful to the inviolable rights of the person, protected by norms of a super-primary rank and by international law.
12.2. On this level, the evaluation of the Court of first instance appears completely inadequate and contradictory, so much so that it can be said to be merely apparent.
The reference to the ‘complexity and lack of univocality of the reference legislation’ and to the ‘regulatory and factual indeterminacy regarding the division of responsibilities within the general framework of SAR activities in the Mediterranean’ on the one hand, the justification appears intrinsically weak, since the framework of conventional reference standards, as summarised above, on the contrary appears sufficiently clear, in particular in highlighting the responsibilities of the ‘State of first contact’ even in the case of refusal by the competent State according to the SAR zone, as moreover contradictorily remarked also in the contested sentence.
In any case, it is not exhaustive in relation to the different perspective of reference, represented by the constitutional and supranational norms for the protection of the fundamental right of personal freedom. In another part of the reasoning (page 7), although for other discursive purposes (reviewability of the conduct as an administrative, not a political act), the Capitoline Court correctly observes that ’ the conduct of the Ministry of the Interior, in the person of the minister p.t., has directly and immediately affected the legal sphere of the appellants, resulting in the violation of fundamental, constitutionally protected rights’ and that ‘the power actually exercised, even if it is largely discretionary, is subject to regulatory constraints (also from a procedural point of view) in the face of which individual legal situations emerge that are in abstract terms worthy of jurisdictional protection’. It also states that ‘the procedure for the designation of the POS - under the responsibility of the Department of Civil Liberties and Immigration, which is part of the Ministry of the Interior
- is an administrative act that is procedural in nature and binding in its substance and discretionary in its manner, inherent to the identification of the most appropriate landing point on national territory. This choice involves technical evaluations regarding the location based on the number of migrants to be assisted, their gender, their physical and mental conditions, the need to guarantee a reception facility and appropriate medical care after disembarkation. The political evaluations connected to the control of migratory flows – which, in this case, have resulted in the postponement of the disembarkation in order to await the definition at the European level of the ‘Diciotti case’ – are to be considered extraneous to the aforementioned administrative procedure.
Well, these correct considerations are contradictorily neglected when it comes to examining the assumptions of the alleged liability for tort.
The statement that international regulations do not establish a right to disembark is the result of an erroneous qualifying approach, given that it was not a question of assessing whether or not these regulations established such a right, but rather of assessing whether, under what conditions and within what limits these regulations authorised the detention of migrants on board the unit of the state administration that had rescued them.
As highlighted in the sentence, what is inferred as the basis of the request is the violation of the (inviolable) right to personal freedom pursuant to art. 13 of the Constitution, caused by the unlawful detention on board the ship ‘U. Diciotti’; the appellants complain that they were first detained on the Italian military ship (from 16 to 20 August 2018) and then in the port of Catania (from 20 to 25 August) without authorisation to disembark, consequently claiming compensation for the damages suffered.
From this different perspective, it is clear that the regulatory uncertainty regarding the identification of the competent State cannot be considered sufficient reason for excusing the conduct, from the point of view of guilt, nor the flexibility allowed on the decisions to be adopted when identifying the POS and authorising disembarkation, since this flexibility cannot be exempt from reasonable time limits without otherwise translating into a measure restricting personal freedom, which is intolerable for constitutional and supranational law.
The Court itself emphasises that, on the one hand, the IMO (International Maritime Organisation) guidelines of 2004 (which regulate the question of disembarkation following maritime rescue operations), in paragraph 2.6 ‘give the responsible government the necessary flexibility to deal with each situation on a case-by-case basis’, while on the other hand, in paragraph 2.5, they establish that ‘in every case a place of safety is provided within a reasonable time’, making explicit reference to the fact that the procedure must necessarily be concluded within a reasonable time.
It is precisely from this point of view that the assessment of the merits appears incomplete, as the Territorial Court did not in any way assess whether, net of the discretion attributed to the Public Administration and the flexibility of the landing procedures, the forced detention on board the ship (initially due to the lack of consent to docking in an Italian port and then for the lack of consent to disembark, once the ship had docked at the port of Catania) for ten days, also in consideration of the logistical conditions related to the characteristics of the ship itself, the number of occupants, their health conditions, the previous phases of their dramatic experience, and the climatic conditions. The considerations of the Constitutional Court, no. 105 of 2021, cannot fail to be fully considered valid and pertinent also in the scrutiny of the case in question, where it stigmatises — although in the different but contiguous hypothesis of unlawful detention — ‘that mortification of human dignity that occurs’. No. 105 of 2021, where it stigmatises - albeit in the different but contiguous hypothesis of unlawful detention - ‘that mortification of human dignity that occurs in any event of physical subjection to the power of others and which is a sure indication that the measure relates to the sphere of personal freedom. Nor could it be said that the guarantees of Article 13 of the Constitution are subject to mitigation with respect to foreigners, in view of the protection of other constitutionally relevant assets. Although the public interests affecting immigration are many and the problems of security and public order connected with uncontrolled migratory flows can be perceived as serious, the universal character of personal freedom cannot be in the least diminished, which, like the other rights that the Constitution proclaims inviolable, belongs to individuals not as participants in a specific political community, but as human beings’.
Correlatively, from the point of view of the guilt attributable to the administration as an apparatus, it was a question of assessing – and this was not done – whether or not the conviction that such an extension of the detention of the rescued migrants on board the ship was tolerable could be considered ascribable to criteria of normal prudence and diligence, especially in consideration of the nature of the rights at stake.
13. The fact that, in the case of the Diciotti, with a vote on 20 March 1989, the Senate of the Republic denied authorisation to proceed against the Minister of the Interior (Sen. Matteo Salvini) requested by the Court of Ministers of Catania for the crime of multiple aggravated kidnapping (art. 605, paragraphs one, two, no. 2, and three, Penal Code), namely ‘for having, in his capacity as Minister of the Interior, abusing his powers, deprived of personal freedom 177 migrants of various nationalities who arrived at the port of Catania on board the naval rescue unit U. Diciotti of the Italian Coast Guard at 11:49 p.m. on 20 August 2018 [...]. The offence was aggravated by the fact that it was committed by a public official who abused the powers inherent to the functions exercised, as well as by the fact that it was also committed to the detriment of minors’.
The Court of Appeal has already ruled that this decision is irrelevant for the purposes of the decision on the claim for compensation, which was in any case rejected, as mentioned, for other reasons.
This statement is not specifically criticised by the cross-claimants, but nevertheless the issue must be addressed here as well, given that the rejection ruling means that it cannot be said that the internal res judicata has been established on this point.
The reasoning put forward by the Territorial Court on this point does not appear to be acceptable, based on the observation that, in this case, ‘it is not so much the Minister's personal actions that are being contested... as the overall conduct attributable to the Italian Authorities, for which, by virtue of the relationship of organic identification, the Ministry of the Interior is also called to answer’.
The correct approach to the question requires us to examine the legal nature of the refusal to authorise the procedure and in particular whether the unquestionability of the conduct that it determines on a criminal level also has repercussions on the configuration of the civil offence, in the sense of excluding it. In the latter case, in fact, there would be no room to separate the civil liability of the Minister from that of the administration as an apparatus, given that it was the Minister's decision to deny the POS and the authorisation to disembark that resulted in the coastal vessel being detained on board, which is considered a violation of personal freedom.
Well, the investigation in this regard must start from the consideration that the Italian Constitution No. 1 of 1989 is evidently aimed at guaranteeing the government's function by giving Parliament the power to remove certain behaviours from ordinary criminal jurisdiction in the cases provided for by art. 9, paragraph 3 (‘constitutionally relevant interest of the State’ or ‘pursuit of a pre-eminent public interest in the exercise of the function of Government’).
Authorisation by the relevant chamber, according to the rules established by constitutional law, is provided for by art. 96 of the Constitution, as amended by art. 1 of the aforementioned constitutional law, only for ‘offences’ committed by the President of the Council of Ministers and by Ministers in the exercise of their functions, even if they have left office.
The detailed rules regulate the procedure from an exclusively penal perspective.
It is true that, as has been objected in doctrine, an interpretation of the constitutional norm that recognises the ‘unquestionable’ parliamentary vote recognising a ‘constitutionally relevant interest’ or the ‘pre-eminent public interest in the exercise of the government's function’ as an impediment to criminal jurisdiction alone, excluding any relevance in civil law, may appear to be inconsistent with the rationality of the system.
Nevertheless, the reflected importance that the denial of authorisation may have on a civil law level can only be applied to the assessment of the injustice of the damage (basis of liability ex art. 2043 of the civil code) according to a criterion of balancing the opposing interests (that of the public interest underlying the conduct and that of the individual who is harmed as a result) and is therefore destined to be cancelled where the injury affects, as in this case, inviolable personal rights and as such cannot be compressed or subjected to reduced protection of compromise.
If the cardinal principle of a constitutional state of law is the justiciability of any act that infringes the fundamental rights of the individual, even if carried out by the Government and motivated by political reasons, the removal of political action from such scrutiny ─ although provided for, under certain conditions, by constitutional law ─ can only constitute an exception, as such subject to strict interpretation and therefore referable only to criminal liability.
14. The main appeal should be upheld also in relation to the lack of evidence of damage or consequences.
It is certainly true that, according to decades of now well-established case law (see Court of Cassation, Criminal Section, 11/01/2008, nos. 576, 582, 581, 582, 584; Id. 11/11/2008, no. 584; Id. 11/11/2008, no. 584; Id. 11/11/2008, no. 584; Id. 11/11/2008, no. 584; Id. 11/11/2008, no. 584; Id. 11/11/2008, no. 584; Id 11/01/2008, nos. 576, 582, 581, 582, 584; Id. 11/11/2008, nos. 26972 - 26975; but see already Cass. 15/10/1999,
no. 11629 and, subsequently, Cass. 21/07/2011, no. 15991; see also Corte cost. 27 October 1994, no. 372), it is not the injury to the legally protected interest (damage-event or event of damage) that is compensable but the damage-consequence, that is to say the prejudices deriving according to a legal causal link (articles 1223 and 2056 of the civil code) from the injury itself, to be alleged and proven by the damaged party.
In the case of non-pecuniary damage due to the violation of an individual's inviolable rights, what matters for compensation purposes is not the violation of the right itself but the prejudicial consequences that derive from it, in the ‘dual dimension of relational damage/external projection of the being, and of moral damage/intimistic interiorisation of suffering’ (Cass. 17/01/2018, n. 901).
However, it is also true that such evidence can also be offered by means of serious, precise and concordant presumptions.
In particular, in cases such as this one, which involves a restriction of personal freedom, the margins of presumptive evidence are particularly strong, especially for a case with clear factual contours such as this one, without prejudice to the fact that damage cannot be predicted per se.
This is even more the case when one considers the eminently subjective and internal dimension of the prejudice that is to be compensated (moral damage), the existence of which does not always correspond to a phenomenology susceptible to immediate perception and, therefore, to knowledge by the parties opposed to the injured party.
In such cases, a precise burden of allegation - the latitude of which reflects the complexity and multiformity of the concrete alterations in which non-patrimonial damage can externalise, which, in turn, derives from the breadth of content of the rights of the person affected by the unjust injury - does not correspond, therefore, to an equally broad burden of proof.
As has been rightly emphasised (see in motivation Cass. 10/11/2020, n. 25164), ’ there is, in fact, in the realm of proof of the alleged facts, a presumptive line of reasoning, by virtue of which the judge is allowed to recognise a certain prejudice as existing in all cases in which a specific injury occurs - often resorting, to this end, to the category of well-known fact to indicate the premise of this inferential reasoning, while the most correct reference is to the maxim of experience (the well-known facts being concrete and incontrovertible historical circumstances, not subject to proof and therefore removed from the burden of allegation) ....
The maxim of experience, in fact, does not operate on the terrain of historical occurrence, but on that of the evaluation of facts, it is a rule of judgement based on natural laws, statistics, science or experience, commonly accepted in a given historical-environmental context, the use of which in probative reasoning, and the consequent application of which, are a duty for the judge, recognising, in default, the illogicality of the motivation, given that the maxim of experience alone can be sufficient to found the conviction of the judging body.
That said, not only are there no systematic obstacles to the use of probative reasoning based on the maxim of experience, especially in the matter of non-pecuniary damage, and particularly in the matter of moral damage, but this instrument of judgement makes it possible to avoid the party being forced, in the impossibility of proving the prejudice to the being, or the condition of physical and psychological affliction in which they have found themselves following the injury suffered, to articulate exhausting chapters of evidence relating to the significant change in inner states of mind from which it is possible to infer the demonstration of the prejudice suffered’.
The Court's statement regarding the lack of allegation and proof of damage, not taking into account such margins of judgement, therefore appears to apply a paradigm in contrast to that dictated by the aforementioned principle.
15. The second ground of the conditional cross-appeal is inadmissible.
In essence, it alleges a failure to adjudicate (error in procedendo ex art. 360, first paragraph, num. 4, cod. proc. civ.) on the preliminary objection of lack of standing of the appellants and, therefore, of the present appellant.
Considering the observations on which this objection was based, as transcribed in the appeal (‘it is not known whether or not the present appellants are the shipwrecked persons involved in the “U. Diciotti” case’, as ‘no documentation has been attached and produced from which
from which such a circumstance could be inferred») the exception raised a question not of active legitimisation, but of entitlement, on the active side, of the alleged claim for compensation.
In this regard, it should be reiterated (in accordance with the principles affirmed by the Court of Cassation, Criminal Section, no. 2951 of 16/02/2016) that:
- the right to take legal action refers to the right to take legal action, which belongs to anyone who asserts a right in court assuming that they are the rightful owner; what is different from the ownership of the right to take legal action is the ownership of the subjective position, active or passive, claimed in court;
─ the latter is a constituent element of the claim and pertains to the merits of the decision, so it is up to the plaintiff to allege and prove it, except in the case of recognition, or the development of defences incompatible with denial, by the defendant;
─ its challenge by the defendant is a mere defence, which can be proposed at any stage of the proceedings, without any default or late appearance assuming the value of non-contestation or altering the distribution of the burden of proof, without prejudice to any preclusions accrued for the allegation and proof of facts that prevent, modify or extinguish the ownership of the right that cannot be detected from the documents.
The Court of Appeal rejected the claim for damages on the merits, albeit for reasons other than those relating to the existence or otherwise of the ownership of the alleged right, but which were considered to be explicitly easier to evaluate and therefore examined first according to the principle of the most liquid reason (see sentence, p. 9). In fact, as mentioned, it excluded the existence of this right due to the lack of an allegation and in any case due to the absence of the requirement of guilt, as well as due to the lack of proof of damage.
Since there is no necessary logical order in the examination of the facts constituting the claim, its rejection on other grounds does not logically imply the recognition of the other constituent fact (the ownership of the alleged right), nor its opposite, since it must rather be considered that the question has been absorbed (by improper absorption).
This excludes the possibility that a defect of omission to rule may be configured.
In this sense, continuity must be given to the direction already affirmed in the jurisprudence of this Court according to which, in the judgement of cassation, the conditional cross-appeal with which the victorious party in the judgement on the merits raises questions that have remained absorbed is inadmissible, even if by virtue of the so-called principle of the most liquid reason, since no implicit rejection can be recognised, insofar as these questions, in the case of acceptance of the principal appeal, can be re-proposed before the referring judge (Cassation Court, 13 March 2003, no. 3255). of the most liquid reason, since no implicit rejection can be recognised, in that these questions, in the event of the main appeal being upheld, can be re-proposed before the referring judge (Cass. 23/07/2018, n. 19503, Rv. 650157 – 01; 06/06/2023, n. 15893, Rv. 668115 – 01; in convergent terms, see also Cass. 02/07/2021, n. 18832; 03/02/2020, n. 2334; 12/11/2018, n. 28995, according to which, regarding the judge's measures, absorption in the improper sense ─ configurable when the decision of one question excludes the necessity or the possibility of ruling on the others ─ prevents the existence of the defect of omission to rule from being considered, which is recognisable only when a question has not been, expressly or implicitly, considered absorbed by other statements in the sentence).
16. Even less can a defect of failure to adjudicate be recognised on the related exception of nullity of the power of attorney and the introductory act, in the absence of certainty on the identity of the party.
In this regard, the observation that a defect of failure to adjudicate on a procedural question, such as the one in question, is not configurable is decisive.
According to an uncontested approach, in fact, which must be reiterated here, the judge's failure to examine, when requested by the party, a purely procedural question cannot give rise to the defect of failure to rule, which can only occur with reference to the questions of merit, and therefore cannot be an independent reason for the nullity of the sentence, as in this case there could be a nullity (own or derived decision, for the violation of rules other than art. 112 of the Code of Civil Procedure, insofar as the solution implicitly given by the judge to the question raised by the party is incorrect (see, among others, Court of Cassation no. 7406 of 2014; no. 21424 of 2014; no. 2343 of 2019).
17. The main appeal is therefore upheld, while the conditional cross-appeal must be rejected.
The case is to be referred back to the referring court, which is also to be charged with the settlement of costs for the present proceedings.
18. The obligation to pay, pursuant to art. 13, paragraph 1-quater, of Presidential Decree no. 30 May 2002, no. 115, inserted by art. 1, paragraph 17, law 24 December 2012, n. 228, an additional amount as a unified contribution, since the incidental appellants are State Administrations which, through the mechanism of debt reservation, are exempted from paying the taxes and duties levied on the process (see Cass. 29/12/2016, n. 27301; Cass. 29/01/2016, n. 1778; see also Cass., Sez. U, 08/05/2014, n. 9938; Cass. 14/03/2014, n. 5955).
In conclusion
The Supreme Court upholds the main appeal; rejects the conditional incidental appeal; overturns the sentence and refers the case to the Court of Appeal of Rome, with a different composition, which is also asked to rule on the costs of the legitimacy judgement.
So decided in Rome, in the Council Chamber of the United Civil Sections of the Supreme Court of Cassation, on 18 February 2025.
The President (Ettore Cirillo)