On July 8, 2025, the Italian Constitutional Court announced a decision affirming the constitutionality of a statutory provision that provides for monetary penalties and administrative detention of ships that disregard orders of foreign authorities while rescuing migrants at sea.
Constitutional Challenge
The Constitutional Court’s decision arose from a referral by the Ordinary Tribunal of Brindisi, which brought a constitutional challenge against article 1, para. 2-sexies of Decree-Law No. 130 of October 21, 2020, as converted into law by Law No. 173 of December 18, 2020, arguing that it was contrary to several provisions of the Italian Constitution, specifically article 3 (equality before the law); article 10 (adherence to international law principles); article 25 (restrictions on liberty require legally determinate standards); article 27, first paragraph (personal criminal responsibility); article 27, third paragraph (punishment must be humane and aimed at rehabilitation); and article 117 (legislative powers).
The challenged provision provides that:
[W]hen [a] vessel’s captain or owner fails to provide the information requested by the competent national authority for search and rescue at sea and the national agency responsible for coordinating border police activities and combating illegal immigration, or fails to comply with their instructions, an administrative penalty ranging from €2,000 to €10,000 [about US$2,300 to $11,700] applies. Upon notification of the violation, the additional administrative penalty of 20-day administrative detention of the vessel used to commit the violation shall be applied.
Underlying Case
The underlying case before the Brindisi court concerned claims of the captain, the owner, the shipping company, and the charterer (the nongovernmental organization SOS Méditerranée) of the vessel Ocean Viking against the Italian government’s administrative seizure and custody of the vessel on the basis that the captain had failed to comply with “the instructions provided by the [Libyan] competent authority for the coordination of rescue operations, creating dangerous situations,” thus violating the challenged provision. (Considerations of Fact, No. 1.1.)
The Brindisi court requested a ruling on the constitutionality of the provision’s automatic application of detention without any individualized adjustment of the penalty. (No. 1.2.1.) The court also questioned the constitutionality of the penalty applied to the ship’s captain for his failure to comply with the instructions of Libyan authorities. (No. 1.2.2, para. 1.) Lastly, the Brindisi court asked whether the challenged provision violates constitutional provisions affirming Italy’s adherence to international law by presuming the existence of a valid Libyan “search and rescue zone” and the legitimacy of orders of Libyan authorities in rescue operations, which would require recognition of Libya as a “safe port” under international treaties. (No. 1.2.2, para. 3.) It suggested the challenged provision could violate Italy’s obligations under international law regarding the prohibition of refoulement of migrants and torture. (No. 1.2.2, para. 4.)
The Constitutional Court heard arguments that “compliance with the Libyan authorities’ instructions would lead to the rescue operations being concluded with the disembarkation of the shipwrecked in Libya, thus violating both the international law of the sea, which requires disembarkation in a place of safety, and customary international law and treaties on human rights, particularly the principle of non-refoulement.” (No. 2.3.) It was argued that the captain of the private vessel, by disembarking shipwrecked people in a place where their lives and safety would be at risk, would violate his rescue obligations. (No. 6.2.3, para. 2.)
The Italian government opposed the constitutional challenge. It argued that the challenged provision’s overall sanction could be individualized to the circumstances of a case, because while the detention period is fixed at 20 days, the fine has a minimum and maximum range. (No. 3.2.1, para. 1.) The government also argued that the provision’s sanction is administrative rather than criminal, and that the detention affects only the vessel used to commit the violation, and thus it is lenient relative to the seriousness of the sanctioned conduct, namely the “failure to comply with the requests of an authority that operates institutionally to manage and coordinate rescue operations or border control.” (Nos. 3.2.1, para. 2 and 3.2.2, para. 2.)
Constitutional Court’s Analysis
The court rejected the claims that the challenged provision violated Italy’s constitution.
It observed that the challenged provision allows the government to “limit or prohibit the transit and stoppage of ships in the territorial sea . . . based on reasons of public order and safety, in accordance with the provisions of the United Nations Convention on the Law of the Sea, implemented in Italy by Law No. 689 of December 2, 1994. (Considerations of Law, No. 3, para. 2.)
The court found that the contested provision met the requirement of legal certainty in article 25 of the constitution. The provision’s requirement to comply with a competent authority’s instructions is consistent with obligations of shipowners and captains in the International Convention on Maritime Search and Rescue (SAR Convention), which makes governments responsible for coordinating rescue operations in the maritime areas within their jurisdiction. Under the provision, failures to comply with a competent authority’s instructions is sanctionable only if the instructions comply with the SAR Convention and other international law. (Nos. 13.1-13.6.)
The court also determined the provision did not violate articles 10 and 117 of the Constitution on Italian law’s consistency with international law. It explained that the challenged provision should be interpreted in harmony with the international obligations to provide rescue and the prohibition of refoulement. The provision is “inextricably linked to the SAR Convention [and other instruments and regulations] aimed at the objective of safeguarding life at sea.” (No. 19.) The obligations of a ship captain are part of “a system of cooperation which, with a view to more effective protection of life at sea, presupposes mutual recognition and trust [which] can only be undermined by information drawn from official, current sources based on objective data and recognized by the Italian Republic. (No. 31, para. 2.)
Thus “an order that leads to a violation of the primary obligation to save human life and that is capable of endangering it is not binding,” and noncompliance with such an order cannot by punished under the challenged provision. (No. 26.)
Regarding whether the challenged provision violated articles 3 and 27 of the Constitution by making detention of a ship mandatory without an individualized assessment of the particular facts of a case, the court ruled that the provision sanctions only “those transgressions that undermine the very purpose of safeguarding human life at sea, inherent in the SAR Convention, and are likely to compromise, in the absence of legitimate reasons, the system of cooperation” established by the convention. (No. 34.2.) Given the consequences at issue, the court concluded the mandatory application of detention does not constitute an unreasonable and disproportionate” sanction. (No. 34.3.)
Reaction
One of the parties challenging the provision, SOS Méditerranée, the charterer of the Ocean Viking, issued a statement that “[w]hile the ruling allows continued administrative detention of rescue ships under the decree, [it] reinforces our stance and provides firmer legal ground for civil organisations like ours to continue challenging the unlawful detention of humanitarian ships.”
Dante Figueroa, Law Library of Congress
November 14, 2025
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