Police cannot arrest somebody when, having regard to the circumstances of the case, there are in the concrete causes of justification suitable to exclude criminal relevance of behaviour, in terms of reasonableness, such as a mandatory rule requiring duty to rescue and carry to a place of safety of rescued people in distress at sea.
(unofficial automatic translation)
Italian Supreme Court
Criminal Sent Sent. Sec. 3 No. 6626 Year 2020
President: LAPALORCIA GRAZIA Rapporteur: GAI EMANUELA
Hearing Date: 16/01/2020 - Filing date 20/02/2020
On the appeal brought by the Public Prosecutor at the Court of Agrigento in the proceedings against.
Rackete Carola, born in ** on **/1988
against the order of 02/07/2019 of the Judge of Preliminary Investigation of the Court of Agrigento
Having regard to the acts, the contested order and the appeal;
Hearing the report delivered by Councilor Emanuela Gai;
read the indictment of the Public Prosecutor, in the person of Deputy Prosecutor General Delia Cardia, who concluded by requesting that the order be annulled without referral;
read the defense brief filed by attorneys A. Gamberini and L. Marino, dated December 20, 2019.
1. The Public Prosecutor of the Court of Agrigento appeals for 4 the annulment of the order of the Judge of Preliminary Investigations (GIP) of the Court of Agrigento of non-validation of the arrest in flagrante delicto of Carola Rackete, carried out by military personnel of the Guardia di Finanza, for the crimes referred to in articles 1100 cod. nav. and art. 337 cod.pen., fact committed in Lampedusa on 29/06/2019.
2. The appellant's first ground of appeal alleges violation of art. 606 paragraph 1 lett. b) and e) cod.proc.pen., erroneous application of art. 391 paragraph 4 cod.proc.pen. and illogicality/contradictory nature of the reasoning regarding the illegitimacy of the arrest.
The appellant argues that, having established the flagrancy of the crime for which the arrest can be made, taking into account that the crime titles allowed it, and that the procedural deadlines had been respected, the Judge would have exceeded the cognitive limits of that phase, proceeding to an autonomous assessment of the data in his possession and arriving at a substantive judgment on the circumstantial gravity.
He would have erred on the requirements of his review. He should only have assessed, in the presence of the precondition of flagrancy and compliance with time limits, the legitimacy of the actions of the judicial police, carrying out a reasonableness check on the same, since appreciations regarding criminal responsibility or the existence of serious indicia of guilt are precluded at this stage.
The Judge of Preliminary Investigations of the Court of Agrigento would have overstepped the limits of his review, since he would have considered configurable the cause of justification referred to in Article 51 of the Penal Code, based on a regulatory framework that the same judge defined as "complex," an element that alone is sufficient to exclude that the cause of justification was emerging ictu ocu/i. Moreover, Art. 385 of the Code of Criminal Procedure prohibits arrest when, taking into account the circumstances of the case, it "appears" that the act was carried out in the performance of a duty. This should be deemed excluded in the present case, since it took the judge no less than ten pages to prove the existence of the aforementioned cause of justification. The G.I.P.'s own reconstruction would therefore be incompatible with the concept of appearance.
With the second ground of appeal, he alleges violation of Article 606 paragraph 1 lett. b) and e) of the Code of Criminal Procedure, erroneous application of Article 1100 of the Naval Code, and lack, manifest illogicality and contradictory motivation regarding the quality of warship.
According to the appellant, the judge erroneously ruled out the nature of warship of the patrol boat V.808 of the Guardia di Finanza, and on the basis of this erroneous interpretation, he found that the crime under Article 1100 of the Code of Naval Procedure did not exist.
In particular, the judge would have supported this thesis by referring to Constitutional Court ruling No. 35/2000, which was called to rule on the admissibility of the referendum abrogating the Guardia di Finanza's character as a military corps, which, contrary to the judge's assumption, would not contain the limitation he had drawn from it (Guardia di Finanza units are considered warships war only when they operate outside territorial waters or in foreign ports where there is no consular authority).
On the contrary, the jurisprudence of legitimacy in several cases would have qualified the patrol boats of the Guardia di Finanza as "warships," and this in that they perform maritime police functions and are commanded and equipped by military personnel, as well as in that the legislature itself indirectly would enroll them in this category (Law No. 1409, Dec. 13, 1956, Art. 6). Such confirmation would be drawn from the most longstanding jurisprudence of legitimacy according to which an armed patrol boat of the Guardia di Finanza in maritime police service must be considered a warship (Sec. 3 No. 9978 of 1987).
In the case at hand, the patrol boat V.808 of the Guardia di Finanza would have all the requisites of a warship: it is registered as a state military naval vessel pursuant to Article 243 of the Code of Military Ordinance; it bears the military insignia of the corps to which it belongs, such as color, inscription, flag and guidon; the commander is an ordinary marshal of the Guardia di Finanza and holds military status; and it is armed with individual and departmental military-type armament devices.
The patrol boat in question would therefore qualify as a warship in the service, at the time of the arrest, of maritime police or activities aimed at ensuring the peaceful, orderly and safe conduct of port activities and the territorial sea (Art. 524 reg. cod. nav.).
With the third ground of appeal, he alleges violation of Article 606 paragraph 1 lett. b) and e) cod.proc.pen., erroneous application of Article 51 cod.pen. and lack, manifest illogicality and contradictory motivation relating to the existence of the cause of justification for the performance of duty.
According to the appellant, the judge erroneously motivated the subsistence of the fulfillment of the duty, in particular the duty to rescue at sea and the obligations that flow from it, on the erroneous assumption that the affair was to be evaluated as a whole, from the initial moment of the rescue of the shipwrecked sailors in the Libyan SAR zone, to continue with the stay in territorial waters in front of the island of Lampedusa, and to conclude with the conduct of entering the port of Lampedusa. In the appellant's opinion, the first part of the affair in question would be the subject of different and autonomous criminal proceedings, and therefore only the final conduct of entering the port in a violent manner should have been considered here, at a time when the duty to rescue the migrants would have already been fulfilled and could be said to have ended, also in light of international sources (Articles 18 and 19 of the Montego Bay Convention). The latter do not require that rescue at sea must take place with transshipment of the shipwrecked people ashore, since the rescue activity would consist of conducting the shipwrecked people in a piace of safety and not in a "safe haven."
On this point, the Judge's confusion in interpreting the concept of piace of safety would be evident.
The piace of safety would not, according to the appellant, require that the shipwrecked persons be brought ashore. The Sea Watch3 vessel itself should have been considered a "piace of safety," since the shipwrecked persons were adequately secured and assisted there pending final identification of the place of disembarkation. Although bringing the shipwrecked persons ashore constitutes the optimal option, nonetheless, it could not be excluded, as the Judge would have apodictically done, that they had been adequately secured in the concrete case already at the time of their transshipment onto the naval unit, with the consequence that the duty to rescue had to be considered, at that moment, already fulfilled.
The concrete assessment of the fact and the balancing of the interests at stake should have led the judge to the evaluation of the circumstance that the migrants, once secured on board the vessel, were no longer exposed to imminent danger to their lives, so that the conduct of the suspect could not have been considered justified by the fulfillment of the duty to rescue, which had already occurred. Secondly, the judge would not have considered the alternative ways in which the duty to rescue could have been fulfilled, through the trans-shipment of the shipwrecked people ashore with the lifeboats on board. Finally, there would be no finding of any state of necessity in the present case.
Moreover, in the case at hand, the conduct of resistance would also have occurred in violation of the internal regulations prohibiting the ship from entering the port, exposing the Guardia di Finanza servicemen to risk to their own safety.
The contested order would, then, have made an erroneous reference to Art. 10 ter of Legislative Decree 286 of 1998, a provision directed to the national authority and not to the commander of a private vessel, and to Art. 11 paragraph 1 ter of Legislative Decree 286 of 1998 in the part in which it stated that the prohibition posed by the interministerial order could not be considered legitimate if it was issued without respect for the state's international obligations.
3. The Attorney General's Office filed a written indictment in which it requested that the contested order be annulled without referral. Argues the Attorney General of the Court of Cassation that, as to the first ground, the Judge would have overstepped the limits of cognition proper to that stage, ending up descending into the assessment of the circumstantial gravity, which is not permitted in the judgment on the validation of the arrest; shares, for the rest, the reasons of the appellant Public Prosecutor.
4. Carola Rackete's defense counsel, in the brief filed, argued, as to the first ground, the correctness of the control of reasonableness carried out, in the present case, by the validation judge, having regard to the existence of a prohibition of arrest, pursuant to art. 385 cod.proc.pen., in the presence of the fulfillment of the duty to rescue, as emerging from the documents produced and the statements made by the arrested woman; the correctness of the interpretation of the law regarding the applicative presupposition of art. 1100 cod. nav, not being, the patrol boat of the Guardia di Finanza, a warship; the contradictory nature of the request for a review of the existence of the duty to rescue in the light of international conventions, the proportionality of the conduct of the suspect, incompatible with the limits of the validation judge's review, limits whose respect was invoked, as a demonstration of the illegitimacy of the non-validation order, in the same first ground of appeal.
CONSIDERED IN LAW
1. With the first ground of appeal, the appellant censures the contested decision not to validate the arrest in flagrante delicto, alleging violation of the law in that the judge exceeded the limits of his review in this area.
It is necessary, first of all, to recall the principles, repeatedly affirmed by this Court, to which the appellant Public Prosecutor also shows to adhere, according to which, on the subject of arrest in flagrante delicto, the validation judge must limit himself to verifying the existence of the legal prerequisites for arrest and the reasonable use of powers by the judicial police, to which is institutionally attributed a discretionary sphere in the appreciation of the same, in a key that must concern neither the circumstantial gravity and the precautionary needs, an assessment this reserved for the applicability of coercive precautionary measures, nor the appreciation on responsibility, reserved for the cognitive phase of the judgment on the merits.
On the subject of arrest in flagrante delicto, the validation judge must make a check of mere reasonableness, placing himself in the same situation as the person who made the arrest and basing his judgment on the elements at the time known (ex multis Sez. 6, no. 7470 of 26/01/2017, Lattarulo, Rv. 269428 - 01).
In order to carry out this reasonableness check, the judge must verify, on the basis of the elements at the time known, whether the assessment of making the arrest remained within the limits of the judicial police's discretion.
2. According to the appellant prosecutor, in the present case, the aforementioned limits were largely exceeded. The judge would have made a penetrating assessment of the lack of circumstantial seriousness, deeming configurable the cause of justification of Article 51 of the Criminal Code, namely the fulfillment of the duty to rescue at sea, on the basis of a complex path of argumentation that made extensive reference to international sources, where Article 385 of the Criminal Code, by referring to the concept of "appearance," would implicitly exclude the possibility of arriving at non-validation of arrest on the basis of complex arguments or reasoning.
3. It should be, further clarified, for its relevance to the case under scrutiny, that the procedure for validation of arrest and application of precautionary measures constitutes a complex procedure characterized by the presence of two distinct phases. The first constituted by the extraordinary intervention by which, as a precautionary measure and in the only exceptional cases of absolute necessity and urgency peremptorily indicated by law (as provided by Art. 13 of the Constitution), the judicial police or the public prosecutor - substituting themselves for the judge, who is only permitted, by ordinary law, to operate limitations on personal freedom - adopt a restrictive measure, which must, however, be subject - within very narrow time limits - to control by the Judge, and a subsequent one, properly precautionary, through which, independently of the validation of the work of the judicial police or the prosecutor, the judge, at the request of the public prosecution, decides whether or not to adopt a precautionary measure on the prerequisites of circumstantial seriousness and the existence of precautionary needs.
Within the ambit of this scheme outlined by the code, in implementation of the constitutional dictate in Article 13 Const. the validation measure is directed exclusively at legitimizing the emergency intervention of the judicial police.
The judge is only required to assess the existence of the elements that legitimized the adoption of the measure with an "ex ante" verification, having to take into account the situation known to the judicial police or knowable by the latter with ordinary diligence at the time of the arrest or detention, and with the exclusion of investigations or information acquired subsequently, to the exclusion of the arrestee's statements, which are instead fully usable for the further pronouncement on the "status libertatis" (ex multis, Sez. 3, no. 37861 of 17/06/2014, Pasceri, Rv. 260084 - 01; Sec. 3, no. 2454 of 20/11/2007, Nowosielski; Rv. 238533 - 01; Sec. 3, no. 15137 of 15/02/2019, Rohani, Rv. 275968 - 01).
It follows that, as effectively stated by Sec. 3 n 15137 of 2019, validation looks to the past and, therefore, for the future, an autonomous measure capable of constituting a self-sufficient title to ground a limitation of the right to liberty is required in order for a limitation of personal freedom to persist.
4. In the present case, the judge adopted a single measure in which he ruled not to validate the arrest for the offenses under Art. 1100 cod nav. and Art. 337 of the Criminal Code, and simultaneously rejected the request for precautionary measures due to the absence of serious indications of guilt.
In the part of the motivation of the order by which he reasoned the reasons for not validating the arrest, the judge ruled out, as to the first offense charged, that it was a warship and, as to the second, he found the existence of the cause of justification under Article 51 of the Criminal Code in the case of the fulfillment of the duty to rescue at sea.
5. All this being said, it is the opinion of the College that the reasonableness check carried out by the validation judge, from which the legitimacy or otherwise of his decision derives, must have as its parameter Article 13 Const. The latter, in its first paragraph, stipulates that personal freedom is inviolable; in its second paragraph, that no form of detention, personal inspection or search, or any other restriction of personal freedom is allowed, except by an act justified by the judicial authority and only in the cases and ways provided for by law; in the third paragraph, it allows only in exceptional cases of necessity and urgency, exhaustively indicated by law, that the public security authority may take provisional measures, which must be communicated within forty-eight hours to the judicial authority and, if the latter does not validate them within the next forty-eight hours, they are understood to be revoked and remain without any effect.
So, personal freedom, an inviolable human right, can be subject to limitation by the judicial police only in exceptional cases strictly provided for by law, and only on a strictly temporary basis. The actions of the latter, precisely because of the rank of the protected good, are subject to control within a very short time by a judge, the only body entitled to limit, by reasoned order, the same freedom.
In this context, it has been affirmed that the mechanism of validation in the criminal process derives precisely from the provision, of constitutional rank, whereby an "incompetent" body is authorized, given certain conditions, to substitute itself for a "competent" body and, therefore, to issue, on a provisional basis, an act falling, as a rule, within the powers of the authority legitimized, by ordinary means, to intervention aimed at affecting the sphere of freedom of the individual.
It follows that validation (of arrest), when it intervenes, does not affect the effects of the provisional act validated and, therefore, does not entail the consolidation of those effects, resolving only in a control directed at establishing whether the intervention of the "incompetent" body has been well or badly operated.
6. The validation judge's reasonableness check must therefore be carried out on the basis of an adaptive interpretation of the rules of primary rank - the rules precisely governing the validation of arrest in
flagrancy - to those of constitutional rank that establish strict limits to the power of the judicial police authority to affect the personal freedom of individuals. In the actual case, the Agrigento judge correctly interpreted those legal provisions (Articles 385 and 391 of the Code of Criminal Procedure) in light of the principles of constitutional rank.
He punctually reconstructed the procedural events, retracing in the body of the order the temporal scansion of events, summarizing the antecedents from the day of the rescue of the shipwrecked people until the contacts between the captain and the judicial police in the following days, when the Sea Whatch3 was at anchor in front of the port of Lampedusa, as well as what happened just before entering port, on the night of June 29, 2019. This reconstruction was necessary for the purpose of framing an event that was characterized by its singularity, objectively outside the cases normally addressed in the validation of arrest. In light of all this, the judge found that Rackete's arrest was not legitimate because it was made in the presence of a prohibition established by Article 385 of the Code of Criminal Procedure.
According to what was argued in the contested measure, the precautionary measure had been adopted outside the perimeter of legality, by virtue of the recurrence of a cause of justification, identified in the fulfillment of the duty to rescue. This cause of justification was correctly grounded, contrary to the appellant's opinion, precisely in an overall and not parceled assessment of all the factual elements relevant to understanding the situation that became apparent to the operatives in the phases immediately preceding the conduct of entry into the port, and those preceding them, all of which were known to those who had made the arrest.
Taking into account that Rackete's deprivation of liberty had taken place in that precise factual context, described on pp. 8-11 of the contested order, the judge ruled out the legitimacy of the arrest because it was made, as to the existence of the crime under Article 1100 of the Naval Code, in the absence of the requirement that the patrol boat V.808 be a "warship," and, as to the crime under Article 337 of the Penal Code, in the presence of a cause of justification, pursuant to Article 51 of the Penal Code.
7. Leaving aside for the moment the question of the attributability to the patrol boat of the Guardia di Finanza, in the case at hand, of the quality of "warship" (see below), and taking into account, moreover, the fact that the recurrence of a cause of justification would in any case also operate with regard to the crime hypothesis of Article 1100 of the Naval Code, the contested measure correctly exercised its review of the work of the Guardia di Finanza's military personnel and congruously argued its conviction on the same.
At the outcome of an exegetical path of the normative sources of international rank, which are binding for the Italian state and for all those who are bound in their actions to the observance of Italian law, the judge found configurable in the head of the ship's captain the cause of justification for the fulfillment of a duty of rescue, which, in the mind of art. 385 cod.proc.pen., entails a specific prohibition of arrest in flagrante delicto and detention.
It is well true that, based on the unequivocal textual datum of the procedural rule, this prohibition operates on condition that the cause of non-punishability is recognizable in the context of the facts that required emergency intervention ("when, taking into account the circumstances of the fact, it appears"). Nonetheless, contrary to the appellant's assumption, it is certainly not the presence of an articulated justification of the measure that excludes per se that the exemption "appears" to exist. The articulated motivation, on the contrary, is justified precisely by virtue of the complexity of the case, the delicacy of the compressed legal good (individual freedom), and the consequent need to carefully and precisely reconstruct the normative sources, including those of international rank, suitable for founding the subsistence of the cause of justification of Article 51 of the Penal Code and its exact content.
It is these elements, indicated by the Judge, that constitute the parameter of the assessment of the reasonableness of the actions of those who carried out the arrest.
8. Moving, in the first place, from the interpretation of Article 385 of the Code of Criminal Procedure, it is the opinion of the Collegium that, as also stated by authoritative doctrine, it is not required that the existence of the cause of justification of the fulfillment of a duty or the exercise of a legitimate faculty or the cause of non-punishability "appear evident," but that it "probably exists."
In other words, it is not required that it is "evident," thus interpreting the phrase "appears" in Article 385 of the Criminal Code, that the cause of justification exists, but that it reasonably/likely exists on the basis of the factual circumstances known or knowable with ordinary diligence.
Such an interpretation is necessary, in the opinion of the College, taking into account the constitutional rank of the goods at stake, and the provision, also stemming from Article 13 Const, according to which the restriction of liberty must be adopted by a judge with a reasoned measure, the judicial police being able to intervene only in cases strictly provided for by law and subject to the reservation of jurisdiction, being, the measure restricting personal liberty destined to lose effectiveness if not replaced by the one adopted by the judge.
In this context, the codictic discipline is consistent with the provision idi rank constitutional, of the urgent and temporary nature of police intervention judicial, whether the recurrence of the cause of justification, which constitutes a limit to the urgent intervention of the judicial police in matters of arrest in flagrante delicto, is understood as "likely to exist." In the presence of "plausible" representation of a cause of justification, the prohibition of Article 385 of the Criminal Procedure Code thus operates, and the act of arrest possibly performed is not legitimate.
That this interpretation is the only viable one is derived, in the opinion of the College, from the circumstance that Art. 273 cod.proc.pen. requires the Judge of Preliminary Investigations, who issues an order of pre-trial detention, to assess, when adopting the precautionary measure, whether it "appears" that the act was carried out in the presence of a cause of justification, an assessment that does not require, as affirmed by the jurisprudence of this Court, that the recurrence of the exoneration has been positively proven in terms of certainty, it being sufficient, for this purpose, the existence of a high or relevant degree of probability that the deed is carried out in the presence of such a cause of justification (Sec. 1, No. 72 of 26/11/2010, Bocedi, Rv. 249287 - 01; Sec. 1, No. 6630 of 28/01/2010, Dioodato, Rv. 246576 - 01). If the judge, in adopting a measure of deprivation of liberty, must evaluate the profile in question in the terms indicated above, it cannot be held that the judicial police, in making an arrest in flagrante delicto, have broader powers than the judicial authority that is generally competent to restrict personal liberty.
9. Thus defined the interpretative framework of the case under consideration, the assessment of the Judge of Agrigento, who held that there were no prerequisites to validate the arrest, made in that described factual context, because the prohibition of Article 385 cod.proc.pen. was operating, is correct.
The probable existence of the cause for justification was congruously argued.
In this context, the measure necessarily traces international sources (Convention for the Safety of Human Life at Sea, SOLAS- Safety of Life at Sea, London, 1974, ratified by Italy with Law No. 313 of 1980; Hamburg SAR Convention of 1979, made enforceable by Italy with Law No. 147 of 1989 and implemented by Presidential Decree No. 662 of 1994; UNCLOS Convention of the United Nations on the Law of the Sea, stipulated in Montego Bay in 1982 and implemented by Italy by Law No. 689 of 1994), both for the purpose of identifying the legal basis of the cause of justification, identified in the fulfillment of the duty to rescue at sea, and for the purpose of outlining its content suitable for exculpating the conduct of resistance.
It is precisely the aforementioned covenant sources on the subject of sea rescue and, before that, the customary obligation to rescue at sea, a generally recognized rule of international law and therefore directly applicable in the domestic legal system, by virtue of the provision of Article 10 paragraph 1 Const. - all of which provisions are well known to those who operate rescue at sea, but also to those who, by service, operate at sea carrying out maritime police activities -, are the normative parameter that guided the Judge in evaluating the actions of the military in order to exclude the reasonableness of Rackete's arrest, in a situation in which the cited cause of justification was more than "likely" to exist.
Nor could it be assumed, as the appellant argues, that the activity of rescuing the shipwrecked people had ended with their recovery on board the ship. The obligation to rescue dictated by the Hamburg International SAR Convention, does not end with the act of removing the shipwrecked persons from the danger of being lost at sea, but entails the ancillary and consequential obligation to disembark them in a place of safety (so-called "like of safety").
Section 3.1.9 of the aforementioned SAR Convention provides, "The Parties shall ensure the necessary coordination and cooperation so that the masters of ships rendering assistance by embarking persons in distress at sea are relieved of their obligations and deviate as little as possible from their intended course, without the fact of relieving them of such obligations further endangering the safety of human life at sea. The Party in charge of the search and rescue area in which assistance is rendered assumes primary responsibility for ensuring that the aforementioned coordination and cooperation are ensured, so that survivors to whom assistance has been rendered are disembarked from the ship that picked them up and taken to a place of safety, taking into account the particular situation and the guidelines developed by the (International Maritime) Organization. In such cases, the Parties concerned should make the necessary arrangements for the disembarkation in question to take place as soon as reasonably possible."
The Guidelines on the Treatment of Persons Rescued at Sea (Res. MSC.167-78 of 2004) annexed to the SAR Convention, stipulate that the government responsible for the SAR region where the recovery has taken place is required to provide a safe place or ensure that it is provided. For Italy, the like of safety is determined by the SAR Authority in coordination with the Ministry of the Interior.
According to the aforementioned Guidelines, "a place of safety is a location where rescue operations are considered to be concluded; where the safety of survivors or their lives is no longer threatened; basic human needs (such as food, shelter and medical care) can be met; and transportation of survivors to the near or final destination can be arranged" (para. 6.12). "Although an assisting vessel may temporarily constitute a place of safety, it should be relieved of this responsibility as soon as alternative arrangements can be undertaken." (para. 6.13).
Therefore, a ship at sea which, in addition to being at the mercy of adverse weather events, does not allow for the respect of the fundamental rights of the rescued persons, cannot be qualified as a "safe place," due to the obvious lack of this prerequisite. Nor can the duty to rescue be considered fulfilled by rescuing the shipwrecked persons on the ship and keeping them on it, since such persons are entitled to apply for international protection under the 1951 Geneva Convention, an operation that certainly cannot be carried out on the ship. In further confirmation of this interpretation, it is useful to to recall Council of Europe Resolution No. 1821 of June 21, 2011 (The interception and rescue at sea of asylum-seekers, refugees and migrants in an irregular situation), according to which "the notion of 'safe place' cannot be limited to the physical protection of persons alone but necessarily includes respect for their fundamental rights" (point 5.2.), which, while not a direct source of law, constitutes an indispensable interpretative criterion of the concept of "safe place" in international law.
10. In conclusion, the validation judge's review (of the arrest) was correctly made and his decision is correct.
The judge not only found that in the situation described in the order, the cause of justification for the fulfillment of the duty to rescue could be configured, identifying its scope, but also assessed that the existence of this exculpatory nature was perceptible by the operatives who had made the arrest, based on an assessment of the singularity of the event and the concrete factual circumstances, as meticulously summarized.
In fact, a deprivation of personal freedom by the judicial police is not allowed when, having regard to the circumstances of the case, there are in the concrete causes of justification suitable to exclude its criminal relevance, in terms of reasonableness, on the basis of the elements of knowledge in the head of those who operated the measure of deprivation of personal freedom (Sec. 6, No. 49124 of 01/10/2003, P.M. in proc. Todirica, Rv. 227721 - 01).
Finally, the reasonableness check was made on the basis of the data in the judge's possession, which he could legitimately evaluate, namely the elements indicated by the prosecutor in the relevant request and specifically the CNR No. 0369315/2019 of the Guardia di Finanza, dated 29/06/2019, and those derived from the interrogation (Sec. 3, No. 15137 of 15/02/2019, Rohani, Rv. 275968 - 01).
11. The second ground of appeal is unfounded.
The question of law, which is the subject of the second ground of appeal, concerning the qualification of the patrol boat V.808 of the Guardia di Finanza as a "vessel of war," which is a constituent element of the offense under Article 1100 of the Naval Code, must move from the provisions contained in the Code of Military Order, which explicitly defines military and warships in Article 239 D.legislativo March 15, 2010, No. 66 (Code of Military Order) provides the following definitions in Art. 239:
"1. Military ships are those that have the following requirements:
(a) they are registered in the military naval ship list, classified, for the Navy, according to their construction and employment characteristics, into first-line ships, second-line ships and specialized naval ships and placed in the categories and positions established by decree of the Minister of Defense;
(b) are commanded and equipped by military personnel, subject to the relevant discipline;
(c) bear the insignia of the Navy or other Armed Force or Police Force of military order.
2. A warship is defined as a ship belonging to the Armed Forces of a state, bearing the outward distinguishing marks of naval ships of its nationality and placed under the command of a naval officer in the service of the state and enrolled in the appropriate officer's roll or equivalent document, whose crew is subject to the rules of military discipline.
3. The warship constitutes a part of the territory of the state."
The legal framework must be completed by Art. 243 (Registration of units of the Italian Army, Air Force, Carabinieri Corps, Guardia di Finanza Corps and Port Captaincies Corps in the framework of the State's military naval fleet), according to which "Naval units in the possession of the Italian Army, Air Force, Carabinieri Corps, Guardia di Finanza Corps and Port Captaincies Corps are registered in special rolls of the State's military naval fleet."
From all this, it follows that the ships of the Guardia di Finanza are certainly military vessels, but they cannot automatically be deemed to be warships as well. They are also warships only in the presence of the additional requirements mentioned above: if they "belong to the Armed Forces," if they "bear the outward distinctive marks of military ships," if they "are placed under the command of a naval officer in the service of the State and enrolled in the special roll of officers or in an equivalent document," and if their crew "is subject to the rules of military discipline."
The Code of Military Order approved in 2010, by Legislative Decree No. 66, incorporated the content of Article 29 of the Montego Bay Convention, ratified by Italy, which, in the same terms, defines "warship" as a ship that "belongs to the Armed Forces of a State, bears the outward distinctive marks of military ships of its nationality and is placed under the command of a naval officer in the service of the state and enrolled in the appropriate roll of officers or in an equivalent document, whose crew is subject to the rules of military discipline."
The aforementioned legislative decree repealed Article 133 of Royal Decree No. 1415 of 1938, which provided a partially different definition of a warship: "Warships are those commanded and equipped by military or militarized personnel, registered in the lists of warships, and which legitimize their quality by means of the distinctive signs adopted, for this purpose, by the State to which they belong." It is the latter rule, now repealed, that was referred to by the defense brief of the suspect, which, from the failure to be registered on the warship list, derives the exclusion of warship status for the patrol boat V.808 of the Guardia di Finanza. This reference is also incongruous in light of the succession of laws over time referred to above.
12. Having thus reconstructed the regulations in force, and consequently disregarded the defense projection of the suspect, it is necessary to assess the existence of the requirements of Article 239 cited above in the case of the patrol boat V.808.
The Guardia di Finanza is a "police corps of military order," an integral part of the Armed Forces, dependent on the Ministry of Economy and Finance. The naval vessel assigned to it therefore belongs to the Armed Forces. Such a naval vessel, moreover, bears the outward distinctive marks of Italian military ships (i.e., it flies the Italian flag) and embarks a crew subject to the rules of military discipline. In order to qualify as a "warship," however, the Guardia di Finanza unit must also be commanded by "a naval officer in the service of the state and enrolled in the appropriate register of officers or in an equivalent document," which is not proven in the present case. It is not sufficient that there is a military man in command, in this case a marshal, since the "marshal" is not an officer. Nor, moreover, does the appeal document whether such a "marshal" had the above qualification. Therefore, it has not been demonstrated in the actual case that all the necessary requirements for the qualification as a "warship" of the patrol boat V.808 of the Guardia di Finanza, against which the conduct of resistance was allegedly carried out, were met.
13. The appellants believe, then, that the nature of a warship is undisputedly derived from the jurisprudence of legitimacy. This assertion also requires clarification and is not, on the basis of the considerations set forth below, supportable.
In the jurisprudence of legitimacy, there are pronouncements that go back a long way in time and, in any case, predate the regulations of the Code of Military Order adopted by D.Ivo March 15, 2010, no. 66.
A dating pronouncement had affirmed that "even for the purposes of the application of Article 1099 Navigation Code (refusal of obedience to a warship) an armed patrol boat of the Guardia di Finanza, on maritime police duty, must be considered a warship" (Sez. 3, no. 9978 of 30/06/1987, Morleo, Rv. 176694 - 01) and another later one affirmed that "undoubtedly, in fact, the qualification of warship attributed to such a patrol boat (G.d.F. ), not only because it was in the exercise of maritime police functions, and appeared to be commanded and equipped by military personnel, but above all because it is the same legislator who indirectly enrolls the Guardia di Finanza naval vessel in this category, when in Law No. 1409, Art. 6, Dec. 13, 1956 (regulations for maritime surveillance for the purpose of suppressing tobacco smuggling) punishes acts of resistance or violence against such naval vessel with the same penalties established by Art. 1100 Navigation Code, for resistance and violence against a warship" (Sec. 3, No. 31403 of June 14, 2006, Penzo, Rv. 235748 - 01).
In the statement of reasons, it had been specified that it did not matter that, in the case at hand, the judges of merit had not positively verified - as the appellant complained - whether the patrol boat was concretely registered in the appropriate register of military vessels and whether it bore the distinctive sign of the military corps (flag), but that "an armed patrol boat of the Guardia di Finanza, on maritime police duty, must be considered a warship" (Sez. 3, no. 9978, June 30, 1987, Morleo, Rv. 176694).
14. This conclusion does not appear supportable for multiple reasons.
Both of the cited judgments predate the enactment of the Code of Military Order, which gives a precise definition of the military ship and warship that cannot be disregarded.
So, in the first place, it must be the subject of ascertainment, according to the current legal provisions, the existence of all three requirements set forth in Article 239 paragraph 2: belonging to the Armed Forces of a state, external distinguishing marks of military ships of its nationality, being placed under the command of a naval officer in the service of the state and enrolled in the appropriate register of officers or in equivalent document. In the absence of these normative prerequisites, the ship does not qualify as a "warship" within the meaning and effect of Articles 1099 et seq. of the Code of Navigation.
Secondly, the 2006 Penzo ruling's reference to Article 6 of Law No. 1409 of December 13, 1956 (Regulations for maritime surveillance for the purpose of suppressing tobacco smuggling), which reads as follows, is not decisive: "The captain of a national ship who commits acts of resistance or violence against a unit of a naval vessel of the Guardia di Finanza, shall be punished with the penalties established by Article 1100 of the Navigation Code."
A first piece of evidence is drawn from this provision of the law, contrary to the conclusions of the aforementioned 2006 ruling, according to which Article 6 attributes the nature of "warship" to the entire naval vessel of the Guardia di Finanza. Precisely because of the fact that, in 1956, the legislature explicitly stipulated that acts of resistance committed against vessels of the Guardia di Finanza were to be subject to the same penalties as those for resisting a warship, it must be concluded that per se such vessels are not counted among "warships." Otherwise reasoning, one would not understand the meaning of this provision of the law, which would be entirely superfluous. In addition, on a careful reading, it follows that the legislature did not even stipulate that the Guardia di Finanza's naval vessel qualifies as a "warship" when operating in the context of anti-smuggling activities, since the law only provides that in the context of "maritime surveillance for the purpose of suppressing tobacco smuggling" the penalties of Article 1100 of the Code of Navigation apply. The mere quoad penam reference is not valid to extend the status of warship to the Guardia di Finanza's naval vessel.
In addition, it should be noted that it would not in any case be susceptible to analogical application of the aforementioned incriminating provision with regard to other types of activities although included in the maritime police, including police activity aimed at combating illegal immigration.
Thus, moreover, Sez. 6, no. 34028 of June 24, 2003, Veronese Rv. 226335 - 01, had already expressed itself, stating that the act committed in the Venetian lagoon against units of the Guardia di finanza (Customs and Excise), inasmuch as, by the express provision of Art. 1087 same code, the provisions of the subsequent articles 1088 to 1160 do not apply to inland navigation (which is not the case under consideration), nor can the extension introduced by art. 6 of Law 1409 of December 13, 1956, which is limited to the sphere of maritime surveillance for the purpose of repressing tobacco smuggling and which, as such, is not susceptible to analogical application, operate (what is relevant for the case under consideration).
On the other hand, the reference aimed at excluding the nature of warship of the patrol boat of the Guardia di Finanza to ruling No. 35/2000 of the Constitutional Court, which, in declaring the inadmissibility of a referendum on the demilitarization of the Guardia di Finanza, affirmed that "the naval units in the endowment of the Guardia di Finanza are qualified military vessels, registered in special rolls of the State's naval navy (art. 1, first paragraph, of Presidential Decree No. 1199 of December 31, 1973); they fly 'war flags' and are assimilated to those of the Navy (Articles 63 and 156 of Royal Decree No. 1643 of November 6, 1930 - Approval of the new service regulations for the Royal Guardia di Finanza -); they are therefore considered military vessels for the purposes of criminal law military (Art. 11 of the Military Criminal Code of Peace); and when they operate outside territorial waters or in foreign ports where there is no consular authority they exercise the police functions proper to "warships" (Art. 200 of the Code of Navigation) and against them are applicable Art. 1099 and 1100 of the Navigation Code (refusal of obedience or resistance and violence to a warship), referred to in Articles 5 and 6 of Law No. 1409 of December 13, 1956 (Regulations for maritime surveillance for the purpose of suppressing tobacco smuggling), are applicable." Not only, in fact, the same reasons stated above regarding the inapplicability of Article 6 cited above to qualify the Guardia di Finanza's ship as a warship are valid and should be recalled, but it should also be noted that this is a decision issued for the limited purpose of the admissibility of a repeal referendum whose object was not the ascribability of the Guardia di Finanza's ship to the normative definition of "warship" for the purposes of Art. 1100 of the Naval Code, and, in any case, it was a pronouncement prior to the enactment of the 2010 Code of Military Order.
15. The third ground of appeal is inadmissible because it proposes a censure that is outside the perimeter of the judge's review of non-validation. The latter remains delineated, as the appellant himself points out in the first ground of appeal, to the review of the reasonableness of the actions of those who carried out the arrest in flagrante delicto. Therefore, alternative assessments of the facts and different interpretations of regulatory sources are not relevant for the purposes of the configuration and boundaries of the cause of justification referred to in Article 51 of the Penal Code, or alternative perspectives regarding the fulfillment of the duty to rescue and its extent, based on a different interpretation of the notion of "like of safety" contained in the Hamburg Sar Convention, which moreover punctually delineates its scope and boundaries.
In conclusion, the plea is directed at requiring a penetrating examination, not permitted here, of the reasoning of the contested order in light of different parameters of assessment regarding the notion and scope of the cause of justification.
The appeal should therefore on the whole be dismissed.
Dismiss the appeal.