The case, explained

The Open Arms Trial: Political Act Immunity and Kidnapping Charges

7 min read · Updated September 2026 · Editorial oversight: Avv. Federico Papa

The Open Arms trial has reached a decisive turning point with the Palermo Prosecution's request for a six-year prison sentence against the former Interior Minister. As reported by national media, including Rai News and Adnkronos, the closing arguments delivered in September 2024 emphasized the administrative and potentially unlawful nature of the delay in granting a place of safety to the NGO vessel in August 2019. This case represents a key legal watershed in defining the boundaries between executive discretion in border management and the inviolability of fundamental human rights. While similar proceedings ended in dismissals or acquittals, the Open Arms case is distinguished by the allegation of unilateral conduct that allegedly bypassed cabinet collegiality, bringing to the courtroom the delicate balance between Article 95 of the Constitution and the international UNCLOS and SAR conventions.

The Open Arms Trial: Political Act Immunity and Kidnapping Charges

In brief

The article examines the Open Arms trial, focusing on the six-year sentence request for kidnapping. It analyzes the conflict between non-reviewable political acts and reviewable administrative acts, exploring ministerial liability under Art. 95 of the Constitution and international obligations (UNCLOS, SAR) requiring rescue and disembarkation, while highlighting the factors that distinguish this case from prior judicial precedents.

The fact
In August 2019, as reported by outlets such as Il Sole 24 Ore and Rai News, the vessel of the Spanish NGO Open Arms remained stationary for nineteen days off the coast of Lampedusa with 147 people on board following three rescue operations. Despite the suspension of the entry ban into territorial waters ordered by the Lazio Regional Administrative Court (TAR) on August 14, the Ministry of the Interior did not assign the so-called Place of Safety (POS). This standoff ended only on August 20 through the intervention of the Agrigento judicial authority, which ordered an emergency disembarkation and the seizure of the vessel on health grounds. The trial is currently in its closing stages of first instance before the Court of Palermo. The Prosecution has requested the conviction of the defendant Matteo Salvini, arguing that the deprivation of the migrants' liberty was used as a political bargaining chip against European institutions. The defense, led by attorney Giulia Bongiorno, contends that the governmental choices were legitimate measures to safeguard national borders and constituted a non-reviewable political act.
The norms at play
The core of the prosecution rests on Art. 605 of the Italian Criminal Code (kidnapping), aggravated by the perpetrator's status as a public official acting with abuse of power under paragraph 2, no. 2, which prescribes imprisonment from one to ten years. Furthermore, Art. 328 of the Criminal Code is charged for refusal of official acts, specifically concerning the omission of an act that must be performed without delay for public health and hygiene reasons. On the constitutional plane, Art. 95 of the Constitution is central as it governs ministerial responsibility for acts of their respective departments. The pivotal legal issue concerns the hierarchy of sources: Art. 117, paragraph 1, of the Constitution mandates compliance with international legal obligations, including the UNCLOS Convention (duty of assistance at sea) and the Hamburg SAR Convention (duty to coordinate disembarkation in a place of safety), which according to the prosecution cannot be overridden by domestic legislation or political acts.
What the jurisprudence says
Established case law has long defined the category of non-reviewable political acts as extremely narrow, limiting it strictly to measures concerning the supreme direction of the State. Constitutional Court jurisprudence has consistently affirmed that no area of political discretion can exist outside the rule of law when fundamental human rights are at stake, particularly personal liberty under Art. 13 of the Constitution. Supreme Court rulings distinguish non-reviewable political acts from acts of high administration; the latter remain fully subject to judicial review if they breach statutory provisions or principles of reasonableness and proportionality. In immigration matters, precedents establish that while the State retains authority to regulate migration flows, this power yields to the paramount duty to safeguard human life and ensure humane treatment for shipwrecked individuals. Consequently, withholding authorization to disembark is reviewable under criminal law if it constitutes an arbitrary or unjustified deprivation of personal liberty.
Analysis drafted and verified with edit.legal
To verify the provisions cited in this article, we used edit.legal. Test our legal AI on official sources and apply it to your own matters.
Try edit.legal AI
The twin case
Meanwhile, in Roccamesta…
The Hon. Ottavio Perdoni, energetic Mayor of Roccamesta, decides to protest against regional funding cuts for public transport. During a day of unrest, he issues an emergency order locking the gates of the municipal depot where a shuttle freshly arrived from the station with Basim Casba and ten other workers on board is parked. Perdoni claims that his action is a high-strategy political act to defend the municipal budget and that his choice to hold the vehicle until the Region responds is exempt from judicial review. Attorney Prudenzia Cavillo, intervening to assist the passengers kept locked within the perimeter for hours without basic facilities, argues that protecting public accounting cannot justify the physical restriction of individuals who have the right to disembark and return home. The case comes before Judge Giusto Gavelio, who must determine whether Perdoni's protest constitutes a free governmental choice or an abuse of power entering criminal jurisdiction.
1. Qualification of the facts: the physical restriction of passengers inside the depot materially constitutes the deprivation of personal liberty, the objective element of kidnapping.
2. Analysis of the political defense: the court assesses whether Perdoni's order constitutes a non-reviewable political act. However, since it impacts constitutionally protected individual rights (freedom of movement), the order is reclassified as an administrative management act.
3. Evaluation of the mens rea: the judge verifies whether the mayor possessed the awareness and intent to detain the individuals or whether his action was strictly necessary for a superior public interest.
4. Assessment of conduct: the court analyzes whether less restrictive alternative means of protest existed without preventing disembarkation, evaluating the proportionality of the action. Potential outcomes:
5. Conviction: if the judge finds that the deprivation of liberty was an arbitrary choice and not dictated by an urgent security necessity, Perdoni faces imprisonment for aggravated kidnapping.
6. Acquittal: if it is proven that the restriction resulted from an unavoidable collective decision for depot safety or if evidence of specific intent to deprive individual passengers of their liberty is lacking.
7. Reclassification: the charge could be downgraded to a lesser offense if the deprivation of liberty is considered merely an incidental, momentary effect of another administrative violation. Warning: the practical case is a hypothetical educational reconstruction and does not correspond to the real case nor does it anticipate its outcome; any reference to real persons or entities is purely coincidental; the analysis is based exclusively on cited rules and interpretations and constitutes general legal information, not legal advice.
From the twin case to the real case
The Roccamesta case highlights how the defense of political immunity fails when administrative action directly impinges upon personal liberty. In the actual Open Arms trial, the Court of Palermo must determine whether the delay in authorizing disembarkation constituted a high-level executive strategy or ministerial conduct that crossed into criminal liability. A key element is ascertaining whether such conduct was an isolated initiative or shared collegially within the government, while respecting the presumption of innocence until a final, non-appealable judgment. The legal principle established by the court will clarify whether border control can ever justify the temporary suspension of fundamental human rights protected by international conventions.
Meet the cast of the columnGaio Sventura and the other inhabitants of Roccamesta return in every practical case.Read their stories
What it teaches professionals
1. Always distinguish between general political direction and executive administrative acts impacting fundamental rights, given that only the former enjoy limited immunity from ordinary judicial review.
2. Respect the hierarchy of legal sources, bearing in mind that international rescue obligations prevail over subordinate internal directives or administrative instructions.
3. Assess the collegiality of decision-making processes in public administration contexts, as individual criminal liability becomes more acute when conduct appears to be a unilateral initiative lacking formal endorsement from the collective body.

References: Articolo 605 Codice PenaleArticolo 328 Codice PenaleArticolo 95 CostituzioneArticolo 117 CostituzioneConvenzione UNCLOS 1982Convenzione SAR Amburgo 1979

Editorial oversight: Avv. Federico Papa·ICAMUpdated 30 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction

Frequently asked questions

What is the penalty for kidnapping committed by a public official?

Under Art. 605, paragraph 2, no. 2 of the Criminal Code, if kidnapping is committed by a public official abusing their powers, the statutory penalty is imprisonment from one to ten years.

Can a political act ever be reviewed by a criminal court?

Yes. Although political acts are generally exempt from judicial review, they cannot violate non-derogable fundamental rights guaranteed by the Constitution, such as personal liberty. In such cases, the act loses political immunity and becomes subject to criminal court review.

What do the UNCLOS and SAR conventions mandate regarding sea rescue?

They are international treaties that require States to render immediate assistance to persons in distress at sea and to coordinate operations ensuring the disembarkation of survivors in the nearest Place of Safety within the shortest possible time.