call to the Italian authorities can be considered as an essential fragment of this
premeditated criminal design, planned by the smugglers from the very beginning.
23
Hence, the satellite phone call placed to the Italian Maritime Rescue Coordination
Centre (MRCC) constitutes a direct link to the State that allows the exercise of
jurisdiction over ships requesting assistance at sea, including those involved in
migrant smuggling on the high seas.
24 Likewise, the Italian Court also underlined
that pursuant to the legal provisions set forth in its domestic legislation, preparatory
acts aimed at facilitating irregular migration that are committed on the high seas can
also be punishable under Italian criminal law.
25
In this regard, the judge argued that despite the fact that preparatory acts to
facilitate the irregular entry were committed on the high seas, thus outside the
scope of national jurisdiction, these preliminary actions were undoubtedly intended
to compel the Italian border and coast guard authorities to intervene. Therefore, these
conducts could also be prosecuted in accordance with the national legal framework.
This operational approach was further corroborated by the Italian Court of Cassation
and the National Anti-mafia Directorate, both affirming that, along with international
law provisions, domestic laws effectively confer upon Italian authorities the enforcement and adjudicative powers to exercise their jurisdiction over unseaworthy vessels
placing distress calls to the national authorities in order to be transported into the
Italian territory.
Against this operational scenario, since 2013, Italian border police authorities
operating at sea like the Guardia di Finanza
26 have invariably exercised their
enforcement powers to intercept migrant boats, seize the ship and arrest the smugglers, regardless of the fact that these events took place outside Italian jurisdiction.
Following these early-interception techniques on the high seas, judges and prosecutors began to acknowledge this new methodology by extending the application of the
Italian criminal jurisdiction on the high seas. This ad hoc approach adopted by the
Italian magistrates laid its foundations for the so-called phenomenon of “creeping
jurisdiction” at sea, however, this concept was applied mutatis mutandis in the
domain of criminal law. In this regard, it must be noted that the Italian magistrates
tried to bridge a gap through “creeping jurisdiction” in order to exercise their powers
and arrest migrant smugglers on the high seas while disrupting the model adopted by
cross-border criminal organisations.
23 Sentences no. 3345/15 and 6590/2016 of the Italian Court of Cassation. Available at http://www.
cortedicassazione.it.
24 Papanicolopulu (2016), pp. 13–15.
25 See Art. 12 of the Italian Legislative Decree no. 286/1998 (Consolidated Immigration Act).
26 Following the entry into force of the Legislative Decree 177/2016, from January 2017 the
Guardia di Finanza is the only Italian authority responsible for maritime security while the Italian
Coast Guard retains the coordination of all the activities related to the provision of Search and
Rescue services in its area of responsibility.
13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and. . . 227
premeditated criminal design, planned by the smugglers from the very beginning.
23
Hence, the satellite phone call placed to the Italian Maritime Rescue Coordination
Centre (MRCC) constitutes a direct link to the State that allows the exercise of
jurisdiction over ships requesting assistance at sea, including those involved in
migrant smuggling on the high seas.
24 Likewise, the Italian Court also underlined
that pursuant to the legal provisions set forth in its domestic legislation, preparatory
acts aimed at facilitating irregular migration that are committed on the high seas can
also be punishable under Italian criminal law.
25
In this regard, the judge argued that despite the fact that preparatory acts to
facilitate the irregular entry were committed on the high seas, thus outside the
scope of national jurisdiction, these preliminary actions were undoubtedly intended
to compel the Italian border and coast guard authorities to intervene. Therefore, these
conducts could also be prosecuted in accordance with the national legal framework.
This operational approach was further corroborated by the Italian Court of Cassation
and the National Anti-mafia Directorate, both affirming that, along with international
law provisions, domestic laws effectively confer upon Italian authorities the enforcement and adjudicative powers to exercise their jurisdiction over unseaworthy vessels
placing distress calls to the national authorities in order to be transported into the
Italian territory.
Against this operational scenario, since 2013, Italian border police authorities
operating at sea like the Guardia di Finanza
26 have invariably exercised their
enforcement powers to intercept migrant boats, seize the ship and arrest the smugglers, regardless of the fact that these events took place outside Italian jurisdiction.
Following these early-interception techniques on the high seas, judges and prosecutors began to acknowledge this new methodology by extending the application of the
Italian criminal jurisdiction on the high seas. This ad hoc approach adopted by the
Italian magistrates laid its foundations for the so-called phenomenon of “creeping
jurisdiction” at sea, however, this concept was applied mutatis mutandis in the
domain of criminal law. In this regard, it must be noted that the Italian magistrates
tried to bridge a gap through “creeping jurisdiction” in order to exercise their powers
and arrest migrant smugglers on the high seas while disrupting the model adopted by
cross-border criminal organisations.
23 Sentences no. 3345/15 and 6590/2016 of the Italian Court of Cassation. Available at http://www.
cortedicassazione.it.
24 Papanicolopulu (2016), pp. 13–15.
25 See Art. 12 of the Italian Legislative Decree no. 286/1998 (Consolidated Immigration Act).
26 Following the entry into force of the Legislative Decree 177/2016, from January 2017 the
Guardia di Finanza is the only Italian authority responsible for maritime security while the Italian
Coast Guard retains the coordination of all the activities related to the provision of Search and
Rescue services in its area of responsibility.
13 Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and. . . 227