Rescue operations at sea which result in the return of survivors to Libya constitute a breach of the principle of non-refoulement and violate the rights of the people rescued who should be taken to a place of safety where their lives are no longer in danger and respect of their fundamental rights is guaranteed.
(automatic not official translation)
Court of Cassation
VI criminal section
hearing November 23, 2021 - December 16, 2021 (filed April 26, 2022), n. 15869
President Mogini - Rapporteur Silvestri
Facts
1. The Court of Appeal of Palermo, reforming the sentence of first instance, has convicted T.I.M.B. and A.I. of the crimes provided for by articles 336, 337 and 339 of the Criminal Code and Legislative Decree no. 286 of July 25, 1998, art. 12, paragraphs 2 and 3 bis.
The defendants, in conjunction with each other and with others, allegedly used violence and threats to oppose the crew and the captain of the Italian-flagged boat "Vos Thalassa", in order to force the latter to perform an act contrary to their official duties. In particular, after 67 migrants of different nationalities had been rescued in the Libyan Sar area, informing Rome - which in turn had interested the Libyan Coast Guard - and after having been given the directive to head towards the African coast in order to tranship the migrants on a Libyan patrol boat, the defendants surrounded and threatened to kill the sailor on watch Lu. and the first officer P.. Such conduct forced the captain of the tugboat to reverse his course, to return to the rescue point, to request the intervention of the Italian authorities - in order to avoid the encounter with Libyan patrol boats and avert the dangerous situation created - and, therefore, to head towards the Italian coasts to receive assistance from the military ship "Diciotti" (as charged in chapter a).
In this way the defendants would have carried out acts aimed at illegally procuring the entry into the territory of the State of an unspecified number - but in any case more than five - of illegal migrants of various nationalities, "transhipped", because of the illegal conduct described, on the military ship "Diciotti", which arrived at the port of Trapani (Chapter b).
The Court acquitted the defendants on the grounds of legitimate self-defense pursuant to art. 52 of the Criminal Code; the defendants had reacted in order to avoid being sent back to Libya, where they would have been exposed to the danger of violence and inhuman and degrading treatment.
2.T.I.M.B. appealed for cassation, articulating five reasons.
2.1. The first plea alleges infringement of procedural law provided for under penalty of inadmissibility; the notice of appeal proposed by the Public Prosecutor with reference to chapter b) should have been declared inadmissible, given the lack of indication of the reasons that could justify the responsibility of the defendants. The Court of Appeal would have considered the appeal for "different reasons" as unfounded, thus violating the principle of devolution, taking also into account that the Court had made it clear that the two defendants were not smugglers but only passengers and, therefore, not responsible for the crime.
2.2. With the second reason it is deduced violation of art. 603 c.p.p., paragraph 3 bis, with regard to both charges. The Court of Appeal would have erroneously considered unnecessary the renewal of the preliminary hearing where, argues the appellant, just the different assessment on the configurability of the absence of liability would have required a further investigation regarding the statements made during the proceedings by other migrants, valued by the Court to exclude that the danger arising from the delivery to the Libyan authorities could be voluntarily caused by the defendants.
2.3. The third plea alleges violation of the law and failure to state reasons as regards the non-recognition of the offence of self-defense with reference to the requirement of voluntary determination of the danger. According to the Court of Appeal, the situation of danger would have been voluntarily created by the migrants having planned a crossing in dangerous conditions and having asked for help in order to be "recovered" from the rescue boats: in particular, the situation of danger and necessity would have been artificially organized in order to "stimulate" (so the appeal) an intervention of support leading to the landing of illegal immigrants and the pursuit of the aims of the criminal organization. The action of the tugboat (omissis) and the rejection, according to the Court, would not be separable and autonomous from the previous conduct, deliberately aimed at creating a state of necessity by the smugglers and by the migrants themselves; therefore, a global situation of danger originated also by the migrants as connected to the "reasonable hope that they would be brought to the European coasts, under the protection of the rescue action". According to the appellant, however, this would be an incorrect statement because the intention of the migrants was only to reach the Italian coast with the means available to the traffickers; the Court would have erred, on the one hand, in extending to self-defense the requirement of the danger not voluntarily created, provided only for the state of necessity by art. 54 c.p., and, on the other hand, in the same identification of the situation of danger with respect to which to assess the reaction exempt from liability. Reference is made to the conduct of the defendants when they were aware that the tugboat (omissis) had reversed course in order to head towards the Libyan coast: the assessment and verification of the legitimacy of the reaction by the plaintiffs and, therefore, of the invoked exemption should have been made in relation only to the danger of refoulement to Libya and not also with respect to the risk of shipwreck, which, in fact, when the conduct of resistance was committed, had already been averted and was no longer present as a result of the rescue operation.
The migrants, it is assumed, would have been entitled "not to be sent back to a country, Libya, where they would have been exposed to the risk of torture and degrading and inhuman treatment; the rejection in Libya would have been "a development completely unrelated to the natural course of events in the rescue operations" and this would have caused the reaction.
The Court, it is added, also erred in stating that the migrants had accepted the danger of shipwreck when they undertook the crossing of the Mediterranean Sea; in fact, the Appeals Judges did not consider the state of coercion to which people were subjected in Libya and in the countries of origin, nor did they take into account:
(a) the note of UNHCR -valued instead by the Tribunal- describing the situation of migrants in Libya at the time when the events occurred - in July 2018-;
b) of the jurisprudence of the European Court of Human Rights which had recognized the state of subjection to which migrants were subjected in Libya;
c) of the statements made by some individuals who were on the boat (reference is made to R.T., E.G. and others). The defense argument is that the migrants would have preferred to jump into the sea and drown themselves rather than return to Libya and that this would have legitimized their reaction.
2.4. With the fourth plea it is deduced violation of law and failure to state reasons as to the existence of the subjective right "their own or others" endangered and placed at the base of the defensive activity under Article 52 of the Criminal Code. The Court did not express an opinion on the existence of the right for the protection of which the conduct was carried out, erroneously considering the question absorbed in that, mentioned above, of the lack of the assumption of the involuntary causation of danger. The right to be returned to a safe place, argues the applicant, does not protect the migratory aspirations of individuals, but represents a subjective right recognized at a national level (art. 19 Consolidated Immigration Act) and supranational level (articles 4-10 Charter of Fundamental Rights, art. 3 European Convention on Human Rights and art. 4 prot.)
2.5. With the fifth reason it is deduced violation of the law with regard to the crime referred to in Legislative Decree no. 286 of 1998, art. 12, with regard to: a) the irregularity of entry into the territory of the State; b) the non-punishability of self-help - with respect to which it is complained the failure to renew the declarative evidence-; c) the applicability of the humanitarian exemption. It is assumed that: - the transport of undocumented foreigners into the territory of the State at the end of rescue operations at sea, carried out in compliance with supranational legislation, does not constitute, as stated by the Court of Cassation, irregular entry; - until the rescue operations are completed with the landing in a safe port, the legal status of the shipwrecked persons is prevailing over the possible status of irregular migrants: - the defendants would not be punishable because it would not be punishable those who self-procure the illegal entry; - it would still be configurable in this case the humanitarian justification of art. 12, paragraph 2, T.U. immigration.
3. A.I. has appealed for cassation articulating six reasons.
3.1. With the first one it is deduced violation of the law in the part in which the Court has excluded the offence of self-defense on the assumption that, otherwise, it would justify the use of violence against rescue crews. This would be an erroneous assertion and in conflict with numerous provisions; the right to return to a place of safety would constitute a "full" subjective right to which would correspond a duty of the States.
3.2. With the second and sixth plea, the violation of art. 603 c.p.p., paragraph 3 bis, is alleged, with reference, as to item a), to the omitted renewal of the declarative evidence taken during the investigative incident. The issue is the one already mentioned: the conduct would have been moved by the intent to prevent the return to Libya and not, instead, to facilitate the landing in Europe (it is indicated the testimonies that would not have been evaluated by the Court of Appeal or that would have been evaluated differently than the Court, without however proceeding to the renewal of the evidence).
3.3. The third ground complains about a defect of motivation with regard to the voluntary causation of danger by the defendants. 3.4. With the fourth plea it is alleged, in relation to both charges, failure to state reasons and distortion of evidence as to the nature of the danger and the violation of human rights in Libya, in relation to both charges. 3.5. In the fifth plea it is complained of a lack of motivation with reference to the order of return to Libya: the issue is that of the right to return to a safe place.
Considered in law
The appeals are founded.
2. The appeals raise several issues that relate to the right of States to control borders and ensure security in the exercise of their sovereignty, to the obligation to combat and punish the smuggling of migrants and trafficking in human beings, to human rights standards that require to rescue those who risk their lives at sea - including migrants-, to the protection of fundamental rights of every person, to the principle of non-refoulement. These are issues that require a reconstruction of the regulatory framework within which the facts of the case are placed, which is necessary to verify the "tightness" of the judgment appealed against not only with regard to the verification of the criminal relevance of the facts challenged, but also, from a more strictly procedural point of view, to the compliance with the obligation to strengthen the motivation to which the Court of Appeal was bound in order to reform the sentence pronounced at the end of the first instance.
3. It is useful to refer first of all to the factual reconstruction carried out by the Court and to the reasoning underlying the acquittal sentence.
According to the Court:
- on 8.7.2018 the National Maritime Rescue Coordination Center (IMRCC) received a phone call from a Libyan user with which it was reported the departure of a boat from the Libyan coast with about sixty people on board;
- at 15. at 18.00 hrs of that day the tug boat (omissis), flying the Italian flag, reported to have rescued about sixty migrants on board of a small wooden boat which was about to sink;
- the event was related to the communication received that same day, as mentioned above, and was communicated to the Libyan SAR authorities;
- in the absence of communication from the Libyan authorities, the IMRCC invited the tug to sail towards Lampedusa to meet another naval unit;
- at about 22. at about 22.00 hrs the tug informed IMRCC that it had received orders from the Libyan Coast Guard (LNGC), evidently informed of the incident, to proceed towards the African coast in order to tranship the migrants on a patrol boat of that State;
- following the communication received, the tug proceeded towards the meeting point indicated by the Libyan authorities, about 15 miles off the African coast, in international waters;
- at 23.34 hrs the captain of the (omissis) requested the IMRCC the immediate dispatch of an Italian military vessel, informing it of the existence of a serious situation of danger for the crew, who had been subjected to threats and violence by some of the rescued migrants;
- the conduct of the migrants was carried out when they realized that the tugboat had started navigation towards the Libyan coast: said circumstance caused the state of agitation and induced the migrants to head towards the sailor on watch, Lu. , asking him, in an aggressive and threatening manner, to speak to an officer or to the captain;
- similar conduct was shown towards the First Officer, P.C., during these agitated moments the migrants continued to repeat "No Libya" and threatened to throw themselves into the sea if the ship did not turn around "because it is better to die drowning than to return to Libya"; during the course of the events, the gesture of "cutting the throat" was actually made (it was explained that this gesture could be interpreted both as a threat to the crew, and as a treatment that the migrants feared to be subjected to back in Libya - in this sense, descriptive statements of the serious violence suffered on Libyan territory before the departure of the migrants were reported) - after having informed the captain of the situation created, he changed course and adopted safety procedures in order to prevent the persons on board from taking command of the vessel;
- the situation created determined the dispatch of the naval unit (omissis) of the Italian Coast Guard. On the basis of this factual framework, the Court had reconstructed the regulatory framework of reference, valued the general prohibition to expel, reject or extradite if there is a real, personal, concrete and current risk of subjecting the person to torture or degrading or inhuman treatment, had recognized the right to non-refoulement the rank of jus cogens and considered this right in force in the domestic system pursuant to art. 10 of the Constitution.
According to the first instance court, for the purposes of the assessment of the facts at trial, the memorandum of understanding entered into between Italy and Libya in 2017 would not be of decisive importance either because Libya, at the time of the commission of the facts, could not in any case be considered a safe place in which to take people; at the time the conduct was carried out, the defendants "were seeing their right to be taken to a safe place violated by reason of an order. ...contrary to the Hamburg Convention": there was a situation of concrete and actual danger not voluntarily determined which legitimized the proportionate reaction of the defendants (so the Court).
3. The overruling of the acquittal sentence required the Court of Appeal to adopt an enhanced motivation.
3.1. The Unified Sections of the Court have highlighted how the obligation of reinforced motivation is imposed on the appellate judge every time he considers it necessary to overturn the decision of the judge of first instance, whether acquittal or conviction. This principle is now well-established and is an integral part of the living legal system; this obligation does not apply in the case of confirmation of the judgment of first instance, because, in this case, the reasoning of the appeal decision is welded with the previous one to form - almost always - a single argumentative complex.
As for the obligation to provide a stronger motivation - autonomous with respect to the provision of art. 603 c.p.p., paragraph 3 bis when the appellate court must give a rationally different explanation with respect to the justification of a sentence, must indicate "in a reinforced way" why it believes to overturn it and clarify the reasons why a certain evidence assumes a demonstrative value completely different from that held by the judge of first instance (for all, Sez. U, no. 14800 of 21/12/2017, dep. 2018, Troise, Rv. 272480; but also Sect. U, no. 45276 of 30/10/2003, Andreotti, in motivation; Sect. U, no. 33748 of 12/07/2005, Mannino, Rv. 231679).
The question then is what is meant by "reinforced motivation". It is correctly noted in doctrine that a reinforced motivation is that which has a "superior persuasive force", i.e. capable of giving the "new" decision the greatest possible solidity. Reinforced motivation means constructing a more robust, more solid, more reasoned justification in relation to the issues - legal and factual - that in that matter and in relation to the concrete case are decisive for the logical correctness and legitimacy of the criminal investigation. This is a subject, that of the perimeter of the obligatory steps to be taken by the appellate judge, which involves central themes of the penal process, such as those of reasonable doubt, of the features and aims of the appeal judgement, of the principle of cross-examination, of the tendency for appeals to be paper-based, and, above all, of the inexistence of a rule whereby, in the event of reform on appeal, it can be affirmed that the judgement of the second judge is, by position, "better", more correct and more reliable than that of the first judge.
While, in fact, the so-called double conforming decision, as it is textually noted in doctrine, carries in itself a reassuring value on the expectation that the process has really come closer to the truth, the existence of radically different decisions conveys an asymmetrical message because it leaves in the background an unsolved decisive question, that which concerns the identification of the legally correct decision between the two differences. This is a question that finds its solution not in a general and preventive rule, but in some guarantees aimed at sterilizing the risk that with the second decision regressive effects and serious errors are realized with respect to the first sentence, now reformed. This explains the need for the judge of appeal, in reforming a sentence - of acquittal or conviction-, to adopt a "strengthened motivation".
Therefore, it is noted, "the judge of second instance who intends to change (in whole or in part) the decision of first instance must start from his reasoning and return to it while re-evaluating the whole story.
The reasoning of the appellate court, that is, must move and develop from the judgment appealed against because there is "a close relationship between the quantity and quality of the reasons expressed in the reasons of the judge with the quantity and quality of the arguments and reasons expressed by the appellant, and, consequently with the duty of reinforced motivation of the appellate court in case it decides to reform the decision appealed against.
Fulfilment of the obligation to provide a stronger statement of reasons means: a) demonstrating that a stringent, in-depth and complete analysis of the contested decision has been carried out; b) explaining, also in view of the grounds for appeal and the cognitive perimeter to which it has been assigned, why the decision was not shared; c) clarifying what the underlying reasons are - on a logical, probative and legal level - for the new decision taken. In reforming a judgment it is necessary to demonstrate having examined all the elements acquired, to have studied the grounds of the judgment of first instance, to have made, on the basis of the devolved, a close argumentative comparison with it in order to highlight the critical (see, Sez. U., no. 33748 of July 12, 2005, Mannino, Rv. 231679) in order to then proceed to form a new reasoning that is not limited to include in the argumentative one of the first judge mere critical notes of dissent, "in a sort of ideal assembly of evaluations and arguments between them dissonant, but re-examines the evidentiary material screened by the judge of first instance, consider what may have escaped his deliberation and the further acquired, to give, regarding the parts of the first judgment not shared, a new and complete argumentative structure that explains the different conclusions" (cf, Sez. U., no. 6682 of 04/02/1992, Musumeci Rv. 191229).
The appellate court must "outline the main lines of its own, alternative evidentiary reasoning and specifically refute the most relevant arguments of the reasoning of the first judgment, giving reasons for the relative incompleteness or inconsistency, such as to justify the reform of the measure" (Sez. 2, No. 57765 of 20/12/2018, not maximized; cf, Sec. 6 no. 1253 of 28/11/2013, dep. 2014, Ricotta, Rv. 258005; Sec. 6, no. 46742 of 08/10/2013, Hamdi Ridha, Rv. 257332; Sec. 4 no. 35922 of 11/07/2012, Rv. 254617; Sec. 6, no. 2004 of 16/01/2019, not maximized in which reference is made to an "obligation to specifically demonstrate the untenability on the logical and legal level of the most relevant arguments of the judgment of the first judge, with rigorous and penetrating critical analysis followed by a complete and convincing reasoning that, overlapping to the full extent to that of the first judge, gives reason for the choices made and the greater consideration given to evidence different or differently evaluated").
The overturning of the decision must not result from a mere "horizontal" criticism, i.e. only from a different assessment of the same evidence, but, rather, from the ascertainment of an "error" of judgment committed by the judge of first instance in the light of the circumstances put forward by the appellants and in relation to the specific subject matter. A plausible reconstruction of the first judge, can not, as mentioned, simply replace an equally plausible - but different - "reconstruction operated in the appeal; the judgment of appeal must necessarily measure itself with the reasons given in support of the decisum by the first judge and critically highlight the elements, in hypothesis, underestimated or neglected, and those which, on the contrary, are irrelevant or, worse, in contradiction, with the reconstruction of facts and responsibility placed at the base of the judgment appealed" (Sez. 2, no. 50643 of 18/11/2014, Fu, Rv. no. 261327; these are principles then implemented by Sez. U, no. 14800 of 12/12/2017, dep. 2018, Troise, Rv. 272430; in a conforming sense, Sez. 4, no. 16/06/2021, Frigerio, Rv. 281404).
3.2. The obligation to provide stronger motivation assumes a different argumentative content depending on whether the appeal judge, in reforming the sentence of the first instance, convicts or acquits. The subject concerns the relationship between reinforced motivation and the principle of beyond all reasonable doubt. While, in fact, in order to pronounce a sentence of conviction in the appeal judgement in the face of a sentence of acquittal in which a reasonable doubt has emerged, it is necessary to remove the doubt with a reasoning that demonstrates its non-existence, in the case of acquittal that reforms a previous sentence of conviction, it is instead sufficient to argue in the positive, in the sense that it is necessary and sufficient to represent the existence of reasonable doubt. It is sharedly noted that, while in the case of pejorative reform of a judgment of acquittal, the appellate court must first demolish the reasoning culminated with the deliberation of the first judge and then structure its own reasoning that demonstrates, beyond a reasonable doubt, the basis of the opposite argument, in case instead, integral reform of an ameliorative judgment of conviction, the appellate court, albeit with a reinforced reasoning - in the sense indicated-, must only de-structure the reasoning of the first judge, in the sense of configuring the existence of a reasonable doubt that in itself is intended to dismiss the foundation of the perspective received by the first accusatory judge (on the subject see. , Sec. 2, no. 41571, of 20/06/2017, Marchetta, in motivation).
4. The content and limits of the obligation to rescue at sea were discussed at length in the trial.
The obligation to rescue at sea is provided for by a generally recognized rule of customary international law in force directly in the Italian legal system by virtue of art. 10, paragraph 1 of the Italian Constitution.
It is a functional obligation to protect the fundamental rights of all persons. The United Nations Convention on the Law of the Sea (UNCLOS), opened for signature in Montego Bay on December 10, 1982, entered into force on November 16, 1994, ratified by Law no. 689 of December 2, 1994, which, in art. 98, paragraph 1, provides that the captain of the ship must provide assistance "to anyone found at sea in danger of life as quickly as possible", within the limits of the reasonableness of the intervention; paragraph 2 of the same article clarifies that each coastal State is required to "promote the establishment, activation and maintenance of an adequate and effective search and rescue service relating to safety at sea and, where circumstances require it, to cooperate for this purpose through regional agreements with neighboring States".
The above mentioned obligation of cooperation for the purpose of rescue at sea set forth by the UNCLOS Convention is an expression of two international agreements previously drawn up within the International Maritime Organization (IMO), ratified by a large number of countries, and still in force today: the International Convention for the Safety of Life at Sea (with Annex -Safety of Life at Sea - SOLAS-) opened for signature in London on November 1, 1974, entered into force on May 25, 1980, to which Italy adhered with L. May 23, 1980, n. 313 and the International Convention on Maritime Search and Rescue (with Annex - Search and Rescue - SAR), opened for signature in Hamburg on April 27, 1979, entered into force on June 22, 1985, to which Italy acceded with L. April 3, 1989, n. 147 (since 2005, Libya is also part of the SAR Convention and since 2018 a SAR zone of it is established).
With regard to the SOLAS Convention, under Chapter V, Regulation 33, of the Annex, the master of a ship in a position to render assistance, who has received information about the presence of persons in a dangerous situation at sea, is obliged "to proceed with all speed to their assistance." At the same time, under Chapter V, Regulation 7, of the Annex, States Parties are required "to ensure that the necessary arrangements are made for distress communications and coordination within their area of responsibility and for the rescue of persons in distress at sea along their coasts." Search and rescue are governed by the SAR Convention, which is based on the principle of cooperation and provides for a division of search and rescue areas in agreement between the States concerned, which are required to prepare operational plans that provide for the various types of emergency and the powers of the centers responsible.
According to the SAR Convention, the authorities of a coastal State having jurisdiction over the area of intervention under the agreements entered into, which have received information from the authority of another State of the presence of persons in danger of life in the SAR sea area under their jurisdiction, must intervene immediately; according to par. 2.1.10 of the Annex, they must ensure "... that assistance is provided to any person in distress at sea... without regard to the nationality or status of such person or to the circumstances in which he was found". According to paragraph 1.3.2 of the Annex to the SAR Convention, rescue means "an operation designed to recover persons in distress and to provide them with the first medical or other assistance they may require and to transport them to a place of safety". The term "safe haven" is also used in paragraph 3.1.9 of the Annex, where it is provided that the party responsible for the search and rescue area in which the operation takes place "shall exercise primary responsibility for ensuring that coordination and cooperation are carried out, so that the assisted survivors are disembarked from the assisting vessel and delivered to a place of safety" and that "disembarkation is carried out as soon as reasonably practicable".
Therefore, it is clear from the wording of the SAR that the rescue operation can be considered completed only when the survivor is disembarked, which must be done as soon as possible and in a "safe place".
Neither the SOLAS Convention nor the SAR provide a definition of the notion of "place of safety" (piace of safety, or POS).
However, the contents of the International Maritime Organization - Maritime Safety Committee (IMO) Guidelines for the Treatment of Persons Rescued at Sea are relevant, although they cannot be considered as sources of international law according to art. 38 of the Statute of the International Court of Justice and are not binding. For these guidelines, a "place of safety" is to be understood as "a location where rescue operations are considered to have ended ... where the safety of survivors or their lives is no longer threatened, where basic human needs (such as food, shelter and medical care) can be met. It is, also, a place from which transportation of survivors to the near or final destination can be arranged" (para. 6.12).
On a provisional basis, as long as the shipwrecked persons have not been disembarked, the ship rendering assistance can also be considered a safe place, as provided for in paras. 6.13 and 6.14 of the Guidelines (on this subject, clearly, Sez. 3, no. 6626 of 16/01/2020, Rackete, in motivation).
5. On the basis of the factual reconstruction carried out and the regulatory framework indicated, it is then possible to verify whether the Court of Appeal has fulfilled its obligation to state reasons and has correctly applied the criminal law.
5.1. The points devolved to the Court's cognition concerned: (a) the existence, affirmed by the Court, of a fundamental right of a person to non-refoulement to an unsafe place; (b) the definition of "safe place"; (c) the identification of the Authority that should have coordinated the rescue actions; d) the issue of the application of the Treaty of Hamburg and the memorandum signed between Italy and Libya in 2017; e) the existence of a current danger of the injury of a subjective right "since at the time when the migrants had put in place the violent and threatening conduct, at most the principle of non-refoulement would have been violated which. .. constitutes an obligation for the state and not a subjective right for those rescued at sea, many of whom had freely decided to entrust themselves to dangerous criminal organizations in order to realize their European life project" (as the Court of Appeal stated on page 4 of the sentence).
From the judgment under appeal it emerges that the Court of Appeal has not substantially addressed and resolved any of the issues and points referred to it, on which the judge at first instance, the appellant Public Prosecutor and the parties had long been engaged; having limited itself to showing doubts and perplexities - in reality not made explicit - both on the legal reconstruction acknowledged by the Court of First Instance, and on that brought to its attention by the appellant Public Prosecutor; The Court held that, even if you want to accept the prospect that the right to non-refoulement is a real subjective right, there were still reasons to prevent the recognition of self-defense ("If anything, it should be verified whether the articulated and doctrinal arguments presented by the judge at first instance in support of the thesis of a right to shelter immediately protectable by the migrant rescued at sea, are correct in terms of exegetical or not. However, for reasons of procedural economy, considering the lack of the prerequisites for the application of self-defense, we will limit ourselves to deal with this aspect; and, therefore, operating a kind of test of resistance, accessing in an incidental way to the assessments made by the judge in order to the existence of a subjective right of the migrant to shelter. (thus the Court at page 6 of the judgment).
In particular, beyond the issues addressed, the Court held that the cause of justification, as provided for in Article 52 of the Criminal Code, could not be established through a "different" legal approach, based on the in-depth examination of the issue of the involuntary causation by the applicants of the dangerous situation with respect to which their defensive conduct was directed. In this perspective, in overturning the judgment of acquittal, the Court, after pointing out that this profile had been only hinted at by the Court, valued the principle that "the voluntary determination of the state of danger excludes the configurability of self-defense not for lack of the requirement of the injustice of the offense, but for lack of the requirement of the need for defense" (p. 6 judgment). On the basis of this assumption, the Judges stated that "there can be no doubt about the fact that the migrants have placed themselves in a state of danger voluntarily, both having planned a crossing in conditions of extreme danger, and having then asked for help in order to be recovered by rescue boats (...). ...) Therefore, the criminal organization which organized the voyage, fully accepted by the migrants, artificially created a situation of necessity (the departure on a wooden boat crammed with people and clearly unsuitable for the crossing of the Strait of Sicily) in order to stimulate an intervention of support, which would lead to the landing of illegal immigrants and the pursuit of the criminal organization's purpose; and, therefore, to ensure the landing of migrants on Italian soil.
In essence, the rescue action which proceeded in the first instance the crew of the tug boat (omissis), can not be considered in isolation from the previous conduct, which deliberately created the state of necessity, precisely because it is a condition of danger intentionally caused by traffickers and migrants, which is linked to the reasonable hope that the latter were brought to the European coasts, under the protection of the rescue action "(so verbatim the judgment appealed at pp. 6-7).
The entire reasoning of the Court is developed on a specific factual data, namely that the violent conduct challenged to the two defendants "have not been put in place for the need to defend a right or others from the danger of an unjust offense, but as the final act of a criminal conduct, studied in advance and which ran the risk (for the migrants) of not being carried out because of the fulfillment by the (omissis) of an order given by a sovereign state that had jurisdiction over the SAR area where the rescue operations were carried out".
5.2. The reasoning of the Court of Appeal is objectively flawed, which violates the obligation to strengthen the motivation for several reasons and that does not make correct application of criminal law. First of all, the appellant's Prosecutor's Office did not submit any evidence, as the Court of First Instance did not doubt that the defendants were not responsible for the boat, that they did not collude with the smugglers and that they did not contribute to "artificially create a situation of necessity". The Court of Appeal, however, rewrote this question of evidence ex officio. From another point of view, even if you want to believe that the Court has sought to deepen the issue at hand because of the need to qualify the facts exactly and, therefore, to ascertain the structural requirements of self-defense, it is not at all clear on the basis of what elements and what circumstances were considered proven the assumption that led to the reform of the judgment of acquittal. On this point, the judgment is totally silent and the reasoning is completely omitted, given that no hypothesis was even just suggested as to the involvement and participation of migrants - and the applicants - to the organization of the trip, the conduct of the boat, the illegal traffic that was to lead to the State territory those people. From a further point of view, the Court's legal reasoning is also vitiated in relation to the correct identification of the situation of danger against which to assess the existence of the cause of justification. The Court of Cassation on many occasions, albeit in relation to very different cases from the one under consideration, has made it clear that, although art. 52 of the Penal Code contains no reference to the involuntary causation of danger expressly provided instead in art. 54 of the Penal Code - in order to ascertain the requirement of the necessity of defensive reaction, the involuntariness of the danger must be considered a structural requirement of legitimate defense. Jurisprudence makes use of this requirement in order to exclude the cause of justification in the context of the "scheme" of the challenge, of the brawl, of the duel, that is, in situations in which the subjects are ordinarily animated by the reciprocal intent to offend and accept the situation of danger in which they voluntarily place themselves, with the consequence that their defence cannot be said to be necessary (Sez. 5, no. 33112 of 08/10/2020, Borghi, Rv. 279972; Sez. 5, no. 22040 of 21/2/2020, Rondanini, Rv. 279356; Sez. 5, no. 15090 of 29/11/2019, dep. 2020, Titone, Rv. 279085; Sez. 5, no. 32381 of 19/2/2015, D'Alesio, Rv. 265304; Sez. 5, no. 7635 of November 16, 2006, dep. 2007, Daidone, Rv. 236513); it has also been specified how the disappearance of the aggressive intent in one of the opposing groups entails the application of art. 52 c.p.. - and therefore the exclusion of the crime of brawling - only in the hypothesis in which those defending themselves put themselves in a passive position, limiting themselves to parrying the blows of their adversaries or fleeing, whereas when the defense is actively carried out, the crime exists, since those defending themselves in this way also fight (Sez. 5, no. 10080 of 23/6/1980, Miotello, Rv. 146127).
In this reference framework, the reasoning of the Court, which, moreover, does not address the issue of whether and to what extent the aforementioned principles are also applicable in cases - objectively different - such as those under consideration, appears unstable because, in violation of the obligation to strengthen the motivation, tends to assimilate different legal and factual profiles in an indistinct whole.
5.3. The issue, in particular, concerns the overlap between the danger of shipwreck and the danger arising from a refoulement to an unsafe place, with the consequent risk of inhuman treatment of persons. We have already mentioned how the reasoning of the Court of Appeal, regarding the voluntary causation by the migrants of the danger of shipwreck, is assertive because it lacks any evidentiary evidence. However, even leaving aside this aspect, what is relevant in this case is not the danger of shipwreck, i.e. the danger deriving from a situation which, at the time when the conduct was carried out, had ceased to be present due to the rescue operations, but rather the different situation of danger deriving from the refoulement towards Libya, in order to avoid which the defendants behaved aggressively. What has not been explained by the Court is, on the one hand, why, even assuming that the migrants were "accomplices" of the smugglers in causing the danger of shipwreck, even the second dangerous situation would still be related to the first and both would be attributable to the applicants, and, on the other hand, because, with respect to the refoulement to an unsafe place and to the related situation of danger - in relation to which, alone, the existence of legitimate defense should have been verified - the migrants would have been deprived of rights to assert. Not, therefore, a general condition of pollution, of serial voluntary causation of danger - always attributable to the defendants - structured by automatic derivation from a situation of danger - that of shipwreck - actually ceased; a reasoning flawed in law, but also on the factual level, because it is based on a reconstruction of the events not ordered and on the overlap of different situations, which instead the Court has examined and evaluated as a whole.
At the time the conduct was carried out, what had to be ascertained and explained by the Court of Appeals with an enhanced reasoning was whether: a) the refoulement to Libya caused a situation of "danger of unjust offense"; b) the migrants, in particular, had a right not to be sent back to a country where they would be exposed to the danger of torture and inhuman or degrading treatment; c) whether their reaction was legitimate.
6. With regard to the right of non-refoulement, the Court limited itself to stating that "the dichotomous perspective between the right (of the migrant) and the regulating principle (for the State that provides assistance) appears excessively rigid and probably ill-posed", thus showing that it was not convinced either of the thesis adopted by the Tribunal or of that expressed in the appeal by the Public Prosecutor.
6.1. The principle of non-refoulement has been the subject of a gradual evolution that has gradually increased its scope of application and that has been completed following the judgment of the Grand Chamber of the Court of Justice in Hirsi Jamaa and Others v. Italy. Italy handed down by the Grand Chamber of the European Court of Human Rights on February 23, 2012. It has been clarified how in its classical meaning the principle in question is recognized in art. 33 of the Geneva Convention of 1951 on the Status of Refugees, according to which "No Contracting State shall expel or return, in any manner whatsoever, a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a social group or political opinion".
In its Note on International Protection of September 13, 2001 (A/AC.96/951, p. 16), the United Nations High Commissioner for Refugees (UNHCR), which is responsible for overseeing the manner in which States Parties apply the Geneva Convention, clarified that the principle set forth in Article 33, called "non-refoulement" constitutes: "a fundamental principle of protection to which no reservations are permitted. In many respects, this principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights.
This right has come to be regarded as a norm of customary international law binding on all States. Moreover, international human rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment. The obligation of non-refoulement is also recognized as applying to refugees regardless of their official recognition, which evidently includes asylum seekers whose status has not yet been determined. It covers any measure attributable to a State which may have the effect of returning an asylum-seeker or refugee to the frontiers of a territory where his or her life or freedom would be threatened and where he or she would risk persecution.
This includes border rejection, interception and indirect refoulement, whether an individual seeking asylum or a mass influx." Therefore, a right functional to prevent any refoulement, of anyone in a certain objective situation, to a country where his life or freedom are at risk, regardless of whether the refugee status of the person concerned - according to art. 1 of the Geneva Convention - has been officially recognized or not.
The prohibition of refoulement to an unsafe place has been explicitly provided for and regulated by several other international sources adopted subsequent to the Geneva Convention.
Commonly referred to are: to the 1967 United Nations Declaration on Territorial Asylum; to the 1969 American Convention on Human Rights; to the 1969 Organization for African Unity (now African Union) Convention regulating specific aspects of refugee issues in Africa; to the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the American Convention on the Prevention and Punishment of Torture of 1985; the Cartagena Declaration on Refugees of 1984; the Charter of Fundamental Rights of the European Union, adopted in Nice in 2000; the Principles for the Treatment of Refugees adopted by the Afro-Asian Consultative Organization in 2001; the Convention for the Protection of All Persons from Enforced Disappearance of 2006.
The jurisprudence of the European Court of Human Rights since the case of Soering v. the United Kingdom (Soering v. the United Kingdom, judgment of July 7, 1989) has consistently held that the refoulement (in whatever form it takes) of a person to a country where there is a risk that he or she will be subjected to torture or similar treatment falls within the scope of Article 3 of the European Convention on Human Rights. The Court, while aware that the article in question does not expressly provide for any obligation of non-refoulement on the part of States parties, has nevertheless made it clear that the Convention needs to be interpreted with particular attention to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms, the object and purpose of which require that its provisions be interpreted and applied in such a way as to render its safeguards consistent with the general spirit of the Convention, as an instrument intended to maintain and promote the ideals and values of a democratic society (see, Soering, p. 87).
Symmetrically aligned with the European Court of Human Rights are the Human Rights Committee, the Committee on the Rights of the Child and the African Commission on Human and Peoples' Rights. The Human Rights Committee, it has been observed, does not consider the scope of the prohibition of refoulement to be limited to the "classic" case of torture and similar treatment, but extends it to all the rights contemplated by the Covenant aimed at protecting the human person against "irreparable harm" (among which the Committee expressly refers to the inherent right to life enshrined in art. 6).
This is a position shared by the European Court of Human Rights itself, which has noted on several occasions that the interpretative construction made in relation to art. 3 in connection with refoulements extends to other norms of the system of the European Convention on Human Rights, and, in particular, to art. 8 (right to private and family life) and art. 4 of Protocol no. 4, which sanctions the prohibition of collective expulsions).
Nor does it seem to be in dispute that this is an "internal" prohibition of a rule of customary international law which is recognized as absolute. While in its original form, the principle of non-refoulement was expressly subject to a series of exceptions (par. 2 of art. 33 of the Geneva Convention aimed at enhancing the possibility of states parties to the Convention to evade the obligation to offer protection to persons who might endanger the security of the country or that of its citizens), there are a series of elements demonstrating the substantially absolute nature of this prohibition.
On this point, the African Convention of 1969, which regulates the specific aspects of refugee problems in Africa, according to which the prohibition of refoulement is exempt from any possibility of derogation, art. 3 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 13 of the 1985 American Convention on the Prevention and Punishment of Torture, and art. 19 of the Charter of Fundamental Rights of the European Union are all relevant. The jurisprudence of the European Court of Human Rights, whose Grand Chamber - unanimously - also in relation to solicitations by some member states of the Council of Europe, aimed at revising the interpretation already given of the prohibition enshrined in art. 3 and to recognize the possibility for States to make exceptions to the implementation of the same in cases where the person seeking protection, because of its terrorist nature, constitutes a threat to the security of the country, however, reaffirmed the principle already expressed in previous judgments regarding the absolute nature of the prohibition (See, EDU Court, Grand Chamber, sentence of February 26, 2008, Saadi v. Italy).
Thus the European Court: "Article 3, which prohibits in absolute terms torture or inhuman and degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. It does not provide for any limitations, and in this respect differs from the majority of the articles of the Convention and Protocols Nos. 1 and 4 and is not subject to any derogation as provided for in Article 15, even in the event of a public danger threatening the life of the nation (Ireland v. Kingdom judgment of 8 January 1978, Series A no 25, p. 163, Chahal cited above, p. 79, Selmouni v. France (GC), no 25803/94, p. 95, ECHR 1999-V, AlAdsani v. United Kingdom (GC), no 35763/97, p. 59, ECHR 2001-XI, and Chamaiev and Others v. Georgia and Russia, no 36378/02, p. 335, ECHR 2005-111).
Since the prohibition of torture or inhuman or degrading treatment or punishment is absolute, whatever the conduct of the persons involved (Chahal cited above, p. 79), the type of offence for which the applicant is held responsible is irrelevant to the assessment under Article 3 (Indelicato v. Italy, no 31143/96, p. 30, 18 October 2001, and Ramirez Sanchez v. France (GC), no 59450/00, p. 115-116, 4 July 2006)".
Therefore, we can agree with what has been lucidly observed in the doctrine: since the prohibition of torture constitutes a principle of jus cogens and non-refoulement constitutes a component - a segment - of the prohibition of torture instrumental to its implementation, it follows that non-refoulement also rises to the level of a binding norm, insofar as it is functional to protect the person from treatment attributable to torture. This is a principle of customary international law, essentially absolute, which can be invoked not only by "refugees" (art. 33 of the Geneva Convention), but, as clarified by the European Court of Human Rights, by any human being towards any country where the individual concerned runs a real risk of suffering a violation of his/her internationally recognized fundamental rights. A prohibition to which does not correspond the obligation to allow the entry of the person concerned into the territory of the State, but whose content only concerns the non-refoulement to a country where there is a reasonable risk that the person concerned may suffer harm to his or her life, freedom or psychophysical integrity.
6.2. In this framework of reference the question has arisen as to whether or not the prohibition in question includes, in its scope of application, extraterritorial areas where the State exercises its jurisdiction. The issue relates to rejections carried out in the international sea. This is an issue on which the Grand Chamber of the European Court of Human Rights has pronounced itself on February 23rd 2012, following an appeal filed by some Somali and Eritrean citizens who, in May 2009, had tried to reach the Italian coasts; their boats had been intercepted by the Italian Coast Guard and the migrants, on board of Italian military ships, had been brought back to Libya (from where they had left for Italy) and entrusted to the local authorities.
The Court, having reconstructed the regulatory framework, first of all reiterated that, by virtue of the provisions concerning the law of the sea, a ship sailing on the high seas is subject to the exclusive jurisdiction of the State whose flag it flies; This is a principle of international law which, on the one hand, has led the Court to recognize, in cases involving actions carried out on board ships flying the flag of a State, as well as registered aircraft, cases of extraterritorial exercise of the jurisdiction of that State, and, on the other hand, to affirm jurisdiction also in rescue operations on the high seas. Although the Court is aware "that the states located on the external borders of the European Union are currently experiencing considerable difficulties in coping with an increasing flow of migrants and asylum seekers", of the impossibility to "underestimate the weight and pressure imposed on the countries concerned by this situation, all the more heavy as inserted in a context of economic crisis", the awareness "of the difficulties related to the phenomenon of maritime migration, cause for the States of further complications in the control of the southern borders of Europe", it was however clarified as "given the absolute nature of the rights enshrined in art. 3, this cannot exempt a State from the obligations arising from that provision".
On the basis of these assumptions, the ECJ held that Article 3 of the Convention had been violated in this case, on the one hand, because the applicants had been sent back to Libya, although it was known that in that country they would be exposed to the concrete risk of being treated in a manner contrary to the Convention, thus violating the principle of non-refoulement (p. 85-138), and, on the other hand, because the applicants had been sent back to Libya, although it was known that in that country they would be exposed to the concrete risk of being treated in a manner contrary to the Convention. 85-138), and, on the other hand, because the applicants, following their return to Libya, ran the risk of being sent back to Somalia or Eritrea, where they would most likely be subjected to treatment contrary to the Convention (p. 139-158).
It is useful to quote a short passage of the articulated reasoning: "The Court observes that Libya's failure to comply with its international obligations was one of the realities denounced by the international reports concerning that country. However, the Court feels obliged to recall that the existence of internal texts and the ratification of international treaties sanctioning the respect of fundamental rights are not sufficient, by themselves, to guarantee an adequate protection from the risk of ill-treatment when, as in the present case, reliable sources represent practices of the authorities - or tolerated by them - manifestly contrary to the principles of the Convention".
It was added that "none of the provisions of international law cited ... justified the return of the applicants to Libya, insofar as both the rules on rescue of persons at sea and those relating to the fight against trafficking in human beings require States to comply with obligations under international law on refugees, including the "principle of non-refoulement" also enshrined in Article 19 of the Charter of Fundamental Rights of the European Union.
In this regard, the Court gives particular weight to the content of the letter written on May 15, 2009 by the Vice-President of the European Commission, in which he reiterates the importance of respecting the principle of non-refoulement in operations conducted on the high seas by the member states of the European Union". The Court in this case also found violated: a) art. 4 of Protocol no. 4, which prohibits collective refoulement (whose applicability also to cases of refoulement at sea the Court sees no reason to doubt), since the applicants had been transferred to Libya without any assessment of the peculiarities of each individual case (p. 159-186); art. 4 of Protocol no. 4, which prohibits collective refoulement (whose applicability also to cases of refoulement at sea the Court sees no reason to doubt); art. 4 of Protocol no. 4, which prohibits collective refoulement (whose applicability also to cases of refoulement at sea the Court sees no reason to doubt). 159-186); art. 13, in relation to art. 3 and art. 4 prot. 4, considering that the applicants had no possibility to contest before a competent authority the legitimacy of the refoulement to which they were subjected (p. 187-207).
Following the Hirsi judgment, it follows that the area of application of the prohibition of refoulement must also include refoulement operations on the high seas, such as those at issue in this case, and that Libya, at least until 2012, could not be considered a "safe place". Therefore, at least until 2012, refoulement, understood as a component of the absolute right provided by art. 3 ECHR, could not be ordered to Libya.
6.3. There is a further issue, not addressed by the Court of Appeal, related to the verification of a profile that had also engaged the Tribunal and the parties, that is, whether, at the time the events occurred (summer 2018), Libya was still not a "safe place", with the consequent prohibition of refoulement. That is, it was necessary to ascertain whether the reference framework described by the European Court of Human Rights in the Hirsi judgment had subsequently changed. In order to assess this, the Tribunal had formally requested information from the United Nations High Commissioner for Refugees, whose detailed opinion was then amply reported in the judgment at first instance: the Tribunal, in particular, described the content of the information received, relating to the conditions of detention centers for migrants in Libya, where the people held there (and in particular women) were found to be subjected to continuous and serious violations of human rights, with particular regard to the right to life and physical and sexual integrity.
In this context, a further fact arises, namely that on 2 May 2017 Italy and Libya signed a Memorandum of Understanding on migration management, aimed at implementing the agreements on migration previously signed by the Parties. The issue, on which the Tribunal had also dwelt at length, is that of whether the content of that Memorandum could affect the general regulatory framework described and thus legitimize, at the time the facts occurred, the refoulements of the applicants to Libya.
It is a Memorandum that makes explicit reference to the Treaty of Benghazi of 2008 and the Declaration of Tripoli of 2012, as well as, in general, to other agreements and memoranda on the subject signed by the parties; it makes explicit "the firm determination to cooperate to find urgent solutions to the issue of illegal migrants crossing Libya to reach Europe by sea, through the provision of temporary reception camps in Libya, under the exclusive control of the Libyan Ministry of Interior, pending repatriation or voluntary return to the countries of origin.
Therefore, a clear willingness to cooperate for the identification of urgent solutions, consisting essentially of the provision of temporary reception camps in Libya. In particular: - according to art. 1: a) the parties are committed to initiate cooperation initiatives to support Libyan security and military institutions in order to stem the flow of illegal migrants; b) Italy is committed to providing support and funding to growth programs in Libyan regions affected by the phenomenon of illegal immigration; c) the Italian State is committed to providing technical and technological support to Libyan bodies in charge of the fight against illegal immigration; - according to art. 2, both countries have committed, among other things, to complete the control system of the land borders of southern Libya and to adapt and finance the Libyan reception centers already active, taking advantage of any Italian and European Union funding. Decree Law no. 84 of July 10, 2018, converted into Law no. 98 of August 9, 2018, authorized the transfer free of charge to Libya of 12 Guardia di Finanza naval units, with the aim of increasing the operational capacity of the Libyan authorities "in control and security activities aimed at combating illegal immigration and human trafficking, as well as in rescue activities at sea".
On May 16, 2019, the Italian government proposed to Libya, which accepted, the transfer of 10 naval units for the purposes indicated in the indicated Decree-Law. Subsequent to the memorandum, new reservations were expressed by the United Nations (UNHCR position on returns to Libya (Update II), September 2018): it is stated that "until the security of the country and the respect for human rights improve considerably, Libya cannot be considered either as a safe third country for rejections of Libyan nationals or coming from it (paras. 37-40), or as a safe third country (para. 41), or as a safe port in which to proceed to disembarkation, after sea rescue operations (para. 42)".
On October 4, 2019, the Minister of Foreign Affairs and International Cooperation, in consultation with the Minister of the Interior and the Minister of Justice, issued a decree stating that "the following are considered safe countries of origin: Albania, Algeria, Bosnia-Herzegovina, Cape Verde, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Senegal, Serbia, Tunisia, and Ukraine": thus, there is no Libya. Leaving aside any consideration of the legitimacy of that Memorandum, which the Tribunal has strongly doubted, it is sufficient to point out that its content has a neutral value with respect to the subject matter of these proceedings because it does not allow at all to affirm that, in practice, at the time the facts were committed, the conditions existed to send back to Libya the migrants and, in particular, that the conditions that had led the European Court of Human Rights to consider, for all the reasons indicated, Libya not a safe place had changed.
7. Libya in July 2018 was not a safe place and the refoulement therefore could not be ordered and executed. There was a situation of real and current danger of an unjust offense: a situation known, documented, ascertained, based on concrete factual data. A situation of danger, the Court had correctly explained, materialized as a result of the order of collective refoulement of migrants to Libya. A situation of danger to the fundamental rights of people, resulting from an unlawful conduct. On this point, the judgment of the Court is silent. Not differently, the judgment is silent as to why, contrary to what the Court of First Instance held, the migrants did not have the right to oppose that situation, to assert their fundamental rights, to react by defending themselves against a refoulement that exposed them to the concrete risk of inhuman treatment; What was neither dealt with nor explained by the Court was why people, who had not colluded with the smugglers and criminal organizations and who had not shown any oppositional behavior up to that moment, could not claim their fundamental rights, but had to remain "still", inert, and accept to return to Libya with the risk of being tortured or inhumanely treated. The people who were on the tugboat (omissis) were subjected to a high degree of constraint with respect to which there was a "necessity" of conduct, understood as not replaceable by alternative conduct.
In the construction of the offence provided for by article 52 of the Penal Code, the duty to retreat is nothing but the plastic manifestation of the requirement of the strict necessity of the use of force on the part of the aggressor: the harmful reaction must be the last and only possibility for the person. In the reasoning of the Court of Appeal it is not even made clear whether in this case there was a viable alternative conduct and, if there was, what it would have been, taking into account that the people on board, even if they had decided to jump into the sea, would have neutralized the danger they were running only with the drowning.
In addition, the Court of Appeals, colored its legal reasoning by reporting, in addition to some general considerations, the statements of public officials who were on board the tug boat and who were faced with the conduct of resistance made by the migrants when they learned of the refoulement in Libya. After describing such conduct, which had also been reported by the Court, the Court - at page. 13 - devotes a few lines to the evaluation of the statements made by many people other than the defendants, also taken during the evidentiary hearing, which instead were examined by the Court to explain how: a) the reaction was originated by the prospect of being taken back to Libya; b) people threatened to throw themselves into the sea and let themselves die rather than be sent back to Libya; c) the meaning of some objectively threatening gestures, such as "to pass the finger around the throat", had a value not only threatening towards the commander of that boat, but evoked a condition and a state of desperation of the people, many of whom had left undertaken that journey to get away from countries of origin in turn unsafe.
In this regard, the Court, in violation of the obligation to strengthen the motivation and the obligation to renew the declarative evidence, pursuant to art. 603 c.p.p., paragraph 3 bis, limited itself to stating that the statements in question were "substantially confirmatory of the threatening and violent actions carried out by the defendants in order to force the commander of the tugboat to reverse the route already set to Libya and head north, i.e. towards Italy" (see page 13). Also in this case a motivation not in conformity with the obligations imposed by the law. Nor has it been explained, contrary to what the Court of First Instance had done, whether and to what extent the reaction was disproportionate; this is a profile not even contested by the appellant, taking into account the goods and rights placed in danger as a result of a refoulement that could not be ordered and that caused the reaction of the people on board that ship. The justification of self-defense would obviously not have been possible if the reaction had been disproportionate. Excluding that the defendants have colluded with the smugglers and considered correct the reason with which the Court has considered the conduct of resistance justified under Article 52 of the Criminal Code, it is unclear why it would be configurable the crime alleged in paragraph b),
7. The contested sentence is flawed in terms of the motivation and the application of the criminal law with regard to both charges, to the founding issues relating to the objective feasibility of the crimes charged and to the responsibility of the defendants. Therefore, a sentence that must be annulled without referral because the facts do not exist.
P.Q.M.
Annul the contested sentence without referral because the facts do not exist.