On March 3, 2023, Decree-Law No. 1 of January 2, 2023 (D.L. No. 1), containing urgent provisions for the management of migratory flows, entered into effect in Italy.
Background to the Decree Law
D.L. No. 1 amends Decree-Law No. 130 of October 21, 2020 (D.L. No. 130), which includes provisions on immigration and on international and complementary protection. It also amends certain provisions of the Penal Code. This decree was converted into law by Law No. 173 of December 18, 2020.
Non-Refoulement Provisions
The new legislation exempts from refoulement (forcible return) refugees or asylum seekers who are found in certain circumstances in Italy. In particular, refoulement provisions do not apply in the case of rescue operations that are immediately communicated to the competent coordination center for maritime rescue and to the flag state, when such operations are carried out in compliance with the instructions of the pertinent authorities issued on the basis of the obligations arising from international instruments binding on Italy. (D. L. No. 1, art. 1(b), adding D.L. No. 130, art. 1, para. 2(2-bis).)
These international instruments include international conventions on the law of the sea; the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953; domestic, international, and European standards on the right to asylum; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of 2000; and the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime. These instruments were implemented in Italy through Law No. 146 of March 16, 2006. (D. L. No. 1, art. 1(b), adding D.L. No. 130, art. 1, para. 2(2-bis).)
D.L. No. 1 lists stringent requirements for the application of its non-refoulement provisions:
- Vessels that systematically perform search and rescue activities at sea must operate in compliance with the appropriate authorizations or qualifications issued by the authorities of the flag state, and with the applicable technical-nautical suitability requirements for safe navigation.
- Initiatives are promptly taken to inform the persons taken on board of the possibility of their requesting international protection and, if appropriate, that the relevant information from those persons has been taken and made available to the pertinent authorities.
- Immediately after the event at sea, a port of unloading is requested.
- The port of unloading is reached without delay for the completion of the rescue operation.
- Italian authorities for search and rescue at sea, or public security authorities for the case of assignment of the port of unloading, are provided with the information required to obtain a detailed reconstruction of events surrounding the rescue operation.
- The search and rescue operations at sea did not contribute to creating dangerous situations on board or prevent the vessel from promptly reaching the port of unloading. (D.L. No. 130, art. 1, para. 2(2-bis)(a)–(f), added by D.L. No. 1, art. 1(b).)
Additional Provisions concerning Search and Rescue Vessels
The decree includes additional norms concerning vessels that are used for search and rescue missions in the seas adjacent to Italian territory, including the following:
- The transit of vessels in the Italian territorial sea and their docking on Italian land are allowed for the sole purpose of ensuring the rescue and assistance on land of persons taken on board in order to protect their safety, without prejudice to the penalties applied in case of violation of the applicable provisions. (D.L. No. 130, art. 1, para. 2(2-ter), added by D.L. No. 1, art. 1(b).)
- Without prejudice to the criminal offenses that might exist, in the case of administrative violations, fines ranging from 10,000 to 50,000 euros (about US$10,596 to $52,983) apply jointly to the shipmaster and the shipowner. (D.L. No. 130, art. 1, para. 2(2-quarter, para. 1.), added by D.L. No. 1, art. 1(b).)
- Additionally, the vessel used to commit the violation is subject to the additional administrative sanction of administrative detention for two months, and the shipmaster and the shipowner must pay jointly for the costs generated for the custody of the vessel during the detention. (D.L. No. 130, art. 1, para. 2(2-quarter, para. 1.), added by D.L. No. 1, art. 1(b).)
- An administrative appeal within 60 days may be lodged against the measure ordering the detention of the vessel. (D.L. No. 130, art. 1, para. 2(2-quarter, para. 2.), added by D.L. No. 1, art. 1(b).)
- In the case of a recurrence of the violation by the same vessel, the respective investigating body applies the accessory administrative penalty of confiscation of the vessel. (D.L. No. 130, art. 1, para. 2(2-quinquies), added by D.L. No. 1, art. 1(b).)
- The refusal by the shipmaster or shipowner to provide the information requested by the competent national authority for search and rescue at sea or to comply with the orders received is punishable by an administrative penalty ranging from 2,000 to 10,000 euros (about US$2,119 to $10,596). (D.L. No. 130, art. 1, para. 2(2-sexies), added by D.L. No. 1, art. 1(b).)
- In such cases, the vessel used to commit the violation is subject to the additional administrative sanction of administrative detention for 20 days, and the shipmaster and the shipowner must pay jointly for the costs generated for the custody of the vessel during the detention. (D.L. No. 130, art. 1, para. 2(2-sexies), added by D.L. No. 1, art. 1(b).)
- In the case of a recurrence of the violation by the same vessel, the respective investigating body increases the administrative measure of detention to two months, or orders the confiscation of the vessel if the violation persists. (D.L. No. 130, art. 1, para. 2(2-sexies), added by D.L. No. 1, art. 1(b).)
Dante Figueroa, Law Library of Congress
March 17, 2023
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