On 13 December 2018, M. G. K. and other nationals of Eritrea applied to the Tribunal of Rome for an order requiring the Italian Government and the Ministry of the Interior to pay compensation for the non-material damage suffered as a result of the unlawful restriction of personal liberty aboard the Italian Coast Guard vessel 'U. Diciotti' from 16 August 2018 to 25 August 2018. During the first four days, the restriction was due to the lack of consent for the vessel to dock in Italian ports. During the subsequent six days, once the vessel was allowed to dock in the port of Catania, the restriction was due to the lack of consent for disembarkation on land. The migrants alternatively requested compensation for the latter period only, for the forced and arbitrary detention aboard the 'U. Diciotti' in the port of Catania, without being allowed to disembark. On 9 July 2019, the Tribunal of Rome declared that it lacked jurisdiction, on the grounds that the conduct complained of was of a political nature. On 13 March 2024, the Court of Appeal of Rome clarified that the contested act was administrative in nature, and therefore subject to review under ordinary jurisdiction. It dismissed the claim on the merits due to the absence of fault on the part of the public administration, as well as the lack of any allegation or proof of resulting damage. M. G. K., appealed this decision to the Court of Cassation. The sole ground on which the main appeal was based was the allegation of the violation and/or misapplication of Articles 2043 and 2059 of the Civil Code in relation to Articles 13, 24, 111, and 117 of the Constitution, Article 5 of the ECHR, Article 6 of the EU Charter, and Articles 7 and 14 of the Return Directive.

Firstly, the court clarified that the conduct referred to as the basis for the claim for compensation could not be regarded as having the typological features of the so-called "pure" political act, which would exempt it from judicial review. The court affirmed that the scope of discretion, even the very broad discretion of government action, is limited by legal rules that define its boundaries or guide its exercise. Among these constraints, the primary importance lies in respecting and safeguarding the inviolable rights of the individual. The court further emphasized that government action, even if motivated by political reasons, can never be considered exempt from judicial review when it exceeds the limits set by the Constitution and the law, especially when the constitutionally protected fundamental rights of citizens (or foreigners), are at stake. Hence, it concluded that the refusal to authorize the disembarkation of migrants rescued at sea for a period of 10 days could not be regarded as a political act beyond judicial scrutiny. It specified that this is not an act that pertains to the supreme general direction of the State, considered in its unity and fundamental institutions, but rather an act that expresses an administrative function to be carried out, albeit in implementation of a political directive aimed at balancing the interests at stake. The court thus held that there was neither an absolute nor a relative lack of jurisdiction in favour of the administrative court.

Moreover, the court outlined the relevant legal framework, including maritime law and international conventions such as the Convention for the Safety of Life at Sea (SOLAS), the International Convention on Maritime Search and Rescue (SAR), and other applicable provisions. It then held that the Court of Appeal’s assessment regarding the "absence of clear rules on identifying the State that, after providing first aid, must take charge of the rescued persons" was unfounded. The court observed that, in this case, the migrants were rescued by a Coast Guard unit and remained on board when the alleged harmful and unlawful conduct began and continued. It therefore held that, regardless of the complaints concerning the competent State under the SAR zone breakdown, the rescue operations had been carried out under the responsibility of an Italian SAR authority, which was obligated by international regulations to arrange disembarkation "as soon as reasonably possible." The court ruled that the failure to identify a place of safety in a timely manner, coupled with the decision not to disembark the 177 migrants for five days despite the ship being moored in the port of Catania, constituted a clear violation of the aforementioned international laws. The court also noted that political assessments concerning the control of migratory flows were the sole factors behind the postponement of disembarkation, in order to await decisions at the European level. Furthermore, these decisions did not aim to resolve the dispute between Malta and Italy regarding which State would assume responsibility for the rescue operations. Instead, they were focused solely on determining which States and bodies would receive the migrants (a separate phase, unaffected by the completion of the rescue operations), and this process was entirely voluntary.

The court then assessed whether the detention of migrants aboard the ‘U. Diciotti’ constituted an arbitrary violation of their personal liberty. It noted that Article 5(1)(f) of the ECHR allows for deprivation of liberty in exceptional circumstances, such as the lawful arrest or detention of a person to prevent their illegal entry into a territory or a person against whom deportation or extradition proceedings are pending. The court considered that the detention of migrants on board the vessel, who had not yet been fully identified and may potentially be entitled to asylum under Article 10(3) of the Constitution, could not be classified within the context of expulsion or extradition procedures. It further ruled out any supranational legal justification for such detention as a measure aimed at preventing illegal entry into the territory. The court referenced the ECtHR judgment in Khlaifia and Others v Italy (16483/12, 15 December 2016), which clarified that Article 5(1)(f) requires any deprivation of liberty to have a legal basis in national law, particularly in the Constitution, and that, in accordance with the principle of legal certainty, the conditions limiting personal freedom must be clearly defined and the law precise and foreseeable in its application. Similarly, the court found that, in the present case, the absence of a judicial measure or subsequent validation of governmental decisions was sufficient in itself to establish the arbitrary detention of migrants within the meaning of Article 5 ECHR. The absence of a notified and reasoned detention measure also prevented the migrants from challenging the lawfulness of the detention in court and, if found unlawful, from seeking its immediate termination.

Additionally, the Court of Cassation found the Court of Appeal’s reasoning weak, specifically regarding the 'complexity and non-uniqueness of the reference legislation' and the 'uncertainty of the legislation, as well as the factual nature of the division of competences in the general SAR activity in the Mediterranean.’ The court clarified that the relevant legislative framework is sufficiently clear, particularly in outlining the responsibilities of the 'State of first contact,' even when the State responsible under the SAR zone refuses. The court further noted that the lower court wrongly focused on the fact that international rules do not establish a right to disembark. However, the court highlighted that the issue was not about determining whether such a right exists, but rather about assessing whether, under what conditions, and to what extent those rules permitted the detention of migrants on board the State administration unit that had rescued them. Indeed, the appeal was based on an infringement of the inviolable right to personal liberty under Article 13 of the Constitution, caused by unlawful detention on board the vessel ‘U. Diciotti’ first on the Italian military ship and then in the port of Catania. In light of this, the court found that the alleged regulatory uncertainty regarding the identification of the competent State, or the flexibility permitted in the decisions regarding the identification of the place of safety and authorization of disembarkation, could not serve as valid justification for the conduct. Such flexibility, in any case, cannot be exempt from reasonable time limits, as failure to adhere to these limits would effectively amount to a de facto restriction of personal freedom, which is intolerable under both the constitutional and supranational legal order. The court noted the lower court did not consider whether, despite the discretion granted to the Public Administration and the flexibility of the disembarkation procedures, the forced detention on board the ship could still be deemed reasonable. The court emphasized the need to evaluate this in light of the ship’s logistical conditions, the number of occupants, their health conditions, their previous traumatic experiences, and the weather conditions. The court also highlighted that there was a lack of assessment regarding whether the fault attributable to the administration could be considered consistent with the standards of normal prudence and diligence, especially in light of the nature of the rights at stake and the question of whether the prolonged detention of migrants rescued on board the ship could be deemed tolerable.

Conclusively, the court upheld the appeal, overturned the judgment, and remitted the case to the Court of Appeal of Rome, in a different composition, which is also required to rule on the costs of the present proceedings.