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Summary(see Masera, 2019)
The tugboat Vos Thalassa (Italian flag, working at Libyan oil platform) informed the Maritime Rescue Coordination Center (MRCC) Rome on 8 July 2018 that it had rescued more than 60 migrants from a small wooden boat about to sink. The communication was forwarded by the MRCC to the Libyan authorities who did not provide any response. In the absence of actions taken from the Libyan side, MRCC Rome initially invited the commander of Vos Thalassa to head for Lampedusa. However, the commander then called the Italian authorities again, reporting that he had been contacted by the so-called Libyan coastguards (LCG), which ordered him to direct the boat to the African coast in order to tranship the migrants to a Libyan patrol boat. The ship then headed south, in the direction of the meeting point indicated by the Libyan authorities. But, after a few miles, the situation became difficult. One of the migrants realized that the ship had changed course and was heading towards the Libyan coast. This prompted a state of great agitation among the migrants, who turned to the members of the crew on deck, asking them to reverse the course and to not bring them back to Libya. Particularly the two defendants in the trial lead the protest, displaying with aggressive behaviours the absolute opposition of all the migrants on the ship to be returned to Libya. The commander reported the dangerous situation to the Italian authorities, asking for them to send a military unit to ensure the safety of the crew. After moments of great tension, the MRCC finally decided to send a naval unit of the coastguards, which took the migrants on board and brought them to Italy. Charges/accusations against T. and I. (considered “heads of the rebellion”) • Crimes of violence or threat and resistance to public officials (Articles. 336, 337 and 339 of the Criminal Code). • Aggravated aiding and abetting irregular immigration (Article 12, paragraph 3 of Legislative Decree 286/1998). Main Court findings/analysis The sentence considered all the objective and subjective elements of the contested crimes to exist. • The Court considered the legitimate defence to exist (and not only the state of necessity) as the aggressors were offended. • The rights that would have been endangered by the return of migrants to Libya (the right to life and physical integrity) “are absolute rights that belong to the person as such” (p. 20), • Libya is not a safe harbour (persons are not only shipwreck survivors but also migrants/refugees/asylum seekers). • The decision to return migrants to Libya conflicts with both international law (and the Hamburg Convention) and EU law. • The Court considered the memorandum of understanding between Italy and Libya as being in conflict with international law, a legally non-binding agreement and not having a legislative nature”. • Existence of migrants’ subjective right to be brought to a POS (Libya is not a POS) • The offense (the return to the Libyan camps) to which the migrants opposed was unjust, because it was contrary to a plurality of normative sources. • Actuality of danger and necessity of a defensive action.