The preliminary hearing on 8 September was the first after the summer judicial recess and lasted less than two hours. Two Iuventa defendants were in attendance.  

The hearing began with the judge informing all parties that the Court of Cassation (Corte di Cassazione) has still yet to provide the legal reasons (motivazioni) behind its ruling of 6 July 2023 regarding the “territorial competence” (competenza territoriale) of the Court of Trapani (see report from 15 March 2023). In the previous hearing (see report from 14 July 2023), the judge had noted that no decision on the determination of territorial competence had been made regarding one of the defendants with respect to one of the charges. Pending the Court of Cassation’s reasoning, this still remains to be clarified.

Next, the judge shared updates concerning the transmission of the material of the case file to the other judicial authorities now ruled competent according to the Court of Cassation’s decision. In the previous hearing (see report from 14 July 2023), the judge had announced he would be sending a copy of the prosecution’s entire case file, as well as all material filed so far in the preliminary hearings, to each of the other four competent judicial authorities. To do so, however, he said he had requested the purchase of hard drives to copy and transfer all relevant material in digital format. He reported that this request is still being processed and, hence, the transfers have not yet taken place. 

The main substance of the hearing dealt with the matter of wiretapping (intercettazioni ambientali), which had been ordered by the Trapani preliminary investigation judge (GIP) on the MSF ship Vos Prudence (see report of 14 July 2023). In the previous hearing, MSF’s lawyers argued the invalidity (invalidità) and non-usability (inutilizzabilità) of some wiretapped interceptions on the basis of: (i) insufficient statement of reasons in the GIP decree of 7 March 2017, by which the wiretaps had been authorized; and (ii) the manner in which the wiretapping had been carried out by the prosecution. 

The Trapani judge first gave the floor to the prosecution to respond to the MSF challenges. On admissibility, the prosecution argued that the forum to discuss these issues should have been before the GIP, based on reasons of procedural economy. Accordingly, they considered the defense claims inadmissible as late-filing exceptions. Concerning the merits, the prosecution submitted that the GIP decree of 7 March 2017 (so-called “RIT n. 29/17”) provided adequate and relevant reasons for the “absolute indispensability” (assoluta indispensabilità) of wiretapping for investigative purposes, as required by Italian law under article 267 of the Code of Criminal Procedure (CPP). They expressly refuted MSF defense lawyers’ claim that the wiretapped interceptions were carried out to search for allegations of crimes against MSF personnel instead of, as the law requires, being used as a means to identify evidence. Concerning the manner in which the wiretapping had been carried out, the prosecution considered the defense challenges to be unfounded. Specifically, they stated that no data had been recorded on equipment outside the premises of the prosecutor’s office for downloading and listening to it later. To the contrary, they said that the wiretapped communications were listened to as they took place via equipment installed within the premises of the prosecutor’s office. Accordingly, they asked the judge to dismiss all defense exceptions. 

After the prosecution’s remarks, the judge announced a half-hour suspension of the hearing to deliberate on the matter. Prior to this suspension, however, Iuventa defense lawyer Francesca Cancellaro asked to place on record the 17 July 2023 decision of a Bologna judge who referred to the Court of Justice of the European Union (CJEU) some questions of compatibility – in terms of both legality (validità) and interpretation (interpretazione) – of the EU Facilitators’ Package and Article 12 of Italy’s Consolidated Immigration Act (Testo unico sull’immigrazione, TUI) with the rights and obligations stemming from the EU Charter of Fundamental Rights (preliminary ruling procedure). Iuventa defense pointed out that the Bologna judge’s decision concerned the very same questions of il/legitimacy of the “facilitation” offense previously raised by defense lawyers and rejected by the Trapani judge (see report from 12 May 2023). Cancellaro argued that the CJEU’s future ruling would be of fundamental relevance to the ongoing proceedings in Trapani and, accordingly, requested that the Trapani judge suspend the proceedings pending the CJEU’s ruling. The prosecution opposed the defense’s request and considered the matter settled in the present proceedings, as the judge had already ruled on the issue (see report from 23 June 2023). Ultimately, the judge indicated that he would deliberate and communicate his decision in due course.

After the suspension, the judge returned to deliver his decision (ordinanza) on the wiretapping issue. Upon agreement with the two Iuventa defendants, they left the courtroom together with the interpreter, who had received a written copy of the decision to translate for them. The judge explained that if the defendants wanted to remain in the courtroom, he would have to authorize consecutive interpretation for the reading of his decision, which would greatly lengthen the duration of the hearing. 

The judge then read out the text of his decision. From a procedural point of view, the judge considered the exceptions raised by MSF’s defense lawyers to be admissible, citing relevant case law from Italy’s Court of Cassation. Concerning the merits, the judge held that the GIP decree of 7 March 2017, which had authorized the wiretapping, was adequately reasoned and substantiated the existence of serious indicia of crime. With respect to the manner in which the wiretapping had been carried out by the prosecution, the judge noted that the MSF ship Vos Prudence could not be considered a “private residence” (luogo di private dimora), which would have required a higher threshold of justification for the authorization of wiretapping. He also agreed with the prosecution’s arguments that the wiretapped communications had been listened to as they took place via equipment installed inside the premises of the prosecutor’s office. He found that data had only “momentarily” (momentaneamente) been recorded on the equipment and that there was no evidence that the prosecution downloaded and listened to it later. Ultimately, the judge rejected all defense challenges.

The next preliminary hearing is scheduled to take place on 29 September 2023, where the judge aims to fix the future schedule for the questioning of defendants and expert witnesses in the coming hearings. 

The preliminary hearing on 14 July lasted approximately two hours.

The judge reported on the 6 July 2023 ruling of Italy’s Court of Cassation (Corte di Cassazione) regarding the “territorial competence” (competenza territorial) of the Court of Trapani (see report from 15 March 2023). The Court of Cassation determined that territorial competence over the charges brought against the various defendants belongs to five judicial authorities, located in Trapani, Castrovillari, Palermo, Ragusa and Vibo Valentia, and that the proceedings will be split accordingly. The competent judicial authorities were identified for different incidents on the basis of where the disembarkation took place after the conclusion of SAR operations.

The legal reasons (motivazioni) behind the ruling have not yet been provided by the Court of Cassation, and therefore were not communicated by the Trapani judge. Notably, however, the Trapani judge mentioned that no decision had been made on the determination of territorial competence concerning one of the defendants with regard to one of the charges. On this point, the judge asked all defense lawyers if they had any comments. A defense lawyer for Médecins Sans Frontières (MSF) suggested waiting to receive the reasons for the ruling on territorial competence to get more clarity. All parties, including the prosecutors, agreed to this suggestion and the judge had it noted accordingly in the minutes of the hearing.

A defense lawyer for MSF asked the judge to provide clarification regarding the transmission of the material of the case file to the other four judicial authorities now ruled competent according to the Court of Cassation’s decision. The judge emphasized that the manner and content of the transmission of the relevant case files is solely his responsibility and that the parties may not submit observations on the matter. However, for transparency’s sake, he announced he will send a copy of the prosecution’s entire case file, as well as all material filed so far in the preliminary hearings, to each of the other four competent judicial authorities. He added that everything will likely be sent in digital format, and that they hope to complete the transfers by the end of July.

The judge then gave the floor to defense lawyers of MSF, who submitted challenges concerning wiretapping (intercettazioni ambientali) ordered by the Trapani preliminary investigation judge (GIP) on the MSF ship Vos Prudence. The lawyers asked the judge to declare a series of wiretap interceptions “unusable” (inutilizzabili) on the basis of both: (i) serious flaws in the GIP decree of 7 March 2017, by which they were authorized; and (ii) the manner in which the wiretapping had been carried out by the prosecution.

Firstly, the defense argued that the GIP decree of 7 March 2017 (so-called “RIT n. 29/17”) failed to provide adequate reasons for the “absolute indispensability” (assoluta indispensabilità) of wiretapping for investigation purposes, as required by Italian law under article 267 of the Code of Criminal Procedure (CPP). Specifically, the lawyers pointed out that in order to justify the authorization of wiretapping, in the decree the GIP referred to: (i) alleged offences committed on another boat, chartered by a different NGO, and (ii) the presumption of a possible future commission of crimes on the MSF boat by its crew members. Most notably, there was no mention in the decree of activities carried out by personnel of MSF or on the ship Vos Prudence. In fact, the defense highlighted that at the time of the authorization, the Vos Prudence had not yet begun SAR operations, none of the defendants were yet under investigation, and there was no evidence of any criminal conduct on their part. MSF defense lawyers argued, therefore, that the wiretapped interceptions were carried out as a means to search for allegations of crimes against MSF personnel instead of, as the law requires, being used as a means of identifying evidence. On this point, they referenced relevant case law from Italy’s Court of Cassation (Corte di Cassazione).

Secondly, the lawyers argued that the manner in which the wiretaps had been carried out violated Italian law. They explained that the wiretapping on the Vos Prudence had been carried out by recording conversations on equipment installed in a number of places on the ship, including in the canteen hall. The intercepted audio data was subsequently downloaded to the prosecution’s servers. The defense argued that the law, clarified by Italian Supreme Court jurisprudence, requires the prosecution to provide adequate written justification of the need to record data on any equipment outside the premises of the prosecutor’s office for downloading and listening to it later (see article 268(3) and 271(1) CPP).

The next preliminary hearing is scheduled to take place on 8 September 2023. In that hearing, the prosecution will have the chance to respond to the MSF defense lawyers’ challenges. This is anticipated to be the last of the so-called “preliminary” issues dealt with, before addressing the merits of the case.

The preliminary hearing on 23 June lasted less than two hours. The judge delivered two decisions (ordinanze) rejecting several recent challenges raised by Iuventa defense lawyers and supported by other defense counsel.

The first decision dealt with the defense lawyers’ constitutional complaint challenging the legitimacy, on several grounds, of Article 12 of Italy’s Consolidated Immigration Act (Testo unico sull’immigrazione (TUI), based on Legislative Decree 286/1998), as well as the EU Facilitators’ Package. In his reasoning, the judge presented separate observations related to: (i) the “facilitation” offense under Article 12(1) TUI; (ii) the aggravating elements under Article 12(3)(a) and (d) TUI, namely those linked to the number of people who commit the offense and the number of people transported; (iii) the so-called “humanitarian exemption” under Article 12(2) TUI; and (iv) the EU Facilitators’ Package. On the first three issues, the judge denied referral to the Italian Constitutional Court, and on the last issue, denied referral to the Court of Justice of the EU (CJEU).

The judge ruled the Iuventa defense lawyers’ challenges regarding the constitutional legitimacy of the offense of facilitating irregular entry of non-EU nationals to Italy and its aggravating elements to be “manifestly ill-founded” (manifestamente infondate). He stressed the legislator’s discretion to establish criminal policy, including related punishments or sanctions. In explaining his decision, he cited case law from Italy’s Constitutional Court (Decision No. 63 of 10 March 2022) interpreting the legal and public interests protected by Article 12 TUI, namely the “orderly management of migratory flows” (unofficial translation) for the purpose of safeguarding the balance of the national labor market, social security system resources, public order and security. Without elaborating his position on the interaction and balancing of these various interests or explicitly addressing the fundamental rights of migrants and refugees at stake, the judge concluded that the protection of the “orderly management of migratory flows,” the public interests mentioned, and the intent to combat migrant smuggling by organized crime groups, justified the penalties established by the legislator for both the basic “facilitation” offense and cases involving aggravating circumstances. For both the basic offense and cases involving aggravating circumstances, he found the prescribed penalties to be proportionate and consistent with the punishment’s purported aim of rehabilitation (finalità rieducativa della pena), even when applied to instances of facilitating irregular entry for humanitarian/solidarity purposes. In this regard, he noted that mitigating circumstances and other general defenses under Italian law may apply to cases where the aim of the conduct is to provide humanitarian assistance to the person(s) concerned.

The judge considered the defense counsel’s challenge regarding the constitutional legitimacy of the applicable scope of the “humanitarian exemption” under Article 12(2) TUI, which only applies to acts carried out for the benefit of foreigners in need who are already on Italy’s territory, to be “irrelevant” (irrilevanti). Without addressing the legal questions posed by the defense’s arguments, the judge derived this conclusion from the factual description of the defendants’ conduct listed in the indictment. He noted that the “wording” of the indictment “does not reveal the humanitarian intent of the conduct […], rather it appears that the conducts were committed by the defendants in complicity with the Libyan traffickers [...]” (unofficial translation). The judge also noted that the “humanitarian exemption” under Article 12(2) TUI applies to foreigners “in need,” but stated that in the case at hand, it is unclear whether the transported people were in a situation of need, as the Iuventa defense contends. Moreover, he declared that the territorial limitation of the applicability of the “humanitarian exemption” is not “unreasonable” (irragionevole), given the possible applicability, without territorial limitation, of the necessity defense (state of necessity justification) as well as other defenses under Italian law.

The judge also rejected the Iuventa defense lawyers’ request for a referral to the CJEU to assess the alleged illegitimacy of the EU Facilitators’ Package and the provisions of Article 12 TUI that constitute its national implementation. He held that the criminalization of the facilitation of irregular entry to Italy and to the EU is fully compatible with the fundamental rights of the alleged offenders and the migrants themselves. Specifically, he declared that the limitations on the exercise of the rights of both the persons who carry out the “facilitation” of irregular entry and those who are assisted are proportionate in comparison to the interests protected through the “facilitation” offense, and hence do not violate provisions under Article 52 paragraph 1 of the Charter of Fundamental Rights of the European Union. He stated that such criminalization “must be considered absolutely necessary” to protect the aforementioned public interests, “as less afflictive measures are not identifiable that would be equally effective in achieving the protection of the interests in question” (unofficial translation). Furthermore, he found that the current EU and Italian legal frameworks governing the exemption of humanitarian assistance from criminalization suffice to counterbalance the choice of such broad criminalization.

The second decision delivered in the hearing dealt with the Iuventa defense lawyers’ requests concerning German-language translation of “essential documents” from the prosecution’s case file. In the previous hearing (see report from 26 May 2023), Iuventa defense lawyers requested that the prosecution provide the full translation (traduzione integrale) of 446 investigative documents (audio, video, documentary, etc.), which constitute the annexes to the previously translated police summary report. They also submitted a request for a preliminary ruling by the CJEU on the question of what qualifies as so-called “essential documents” under Article 3 of the Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings. 

The judge rejected the first request by referring to his previous decisions (e.g. from 14 April 2021 and 3 October 2022). In short, he held that such documents are not among those deemed “essential” under Article 143 paragraph 3 of Italy’s Code of Criminal Procedure (CPP), which provides the option for the judge to order the translation of “other documents or even only part of them, considered essential for the defendant to understand the charges against him/her” (unofficial translation). The judge reasoned that such written translation was not necessary because the defendants had interpreters available who could provide – unlimited and free of charge – oral translation of all the material contained in the prosecution’s file and, hence, effectively exercise their defense rights. Ultimately, he held that Article 143 paragraph 3 CPP correctly transposes the provisions and rationale of the European legislation laid down in Article 3 of the Directive 2010/64/EU. Given this conclusion, he rejected the Iuventa defense’s request for a preliminary ruling by the CJEU interpreting the meaning of “essential documents” under Article 3 of the Directive 2010/64/EU. Iuventa defense lawyer Nicola Canestrini noted that “the judge missed an important opportunity to delve deeper into fundamental rights guarantees and failed to address all of the defense’s arguments and considerations.”

The next hearing is scheduled to take place at the Court of Trapani on 14 July 2023. The judge will report on the ruling of Italy’s Court of Cassation, expected on 6 July 2023, regarding the “territorial competence” (competenza territoriale) of the Court of Trapani (see report from 15 March 2023).

The preliminary hearing on 26 May 2023 lasted less than two hours. The prosecution presented its arguments for dismissal of the constitutional complaint filed by Iuventa defense lawyers in the previous hearing.

In the complaint, the defense challenged the legitimacy, on several grounds, of Article 12 of Italy’s Consolidated Immigration Act (Testo unico sull’immigrazione (TUI), based on Legislative Decree 286/1998) (see report from 12 May 2023).

In response, the prosecution asked the judge to dismiss all questions of constitutional illegitimacy concerning the “facilitation” offense and related aggravating circumstances on the basis that the challenges are manifestly ill-founded. The prosecutors stressed that these are specific criminal policy choices which fall within the legislator’s discretion. They cited case law from Italy’s Court of Cassation (Corte di Cassazione) interpreting Article 12 TUI and Article 10 bis TUI, which protects the integrity of Italian borders and fines foreigners who cross the border in an irregular manner. Yet, the prosecution did not elaborate further on how the legislator’s choice to criminalise such different conduct was in line with the constitutionally mandated principles of reasonableness and proportionality in law, which constituted the core of the defense’s challenges on the point. The Prosecution also refuted issues of illegitimacy raised by the Iuventa defense regarding the scope of application of the “humanitarian exemption” under Article 12 paragraph 2, which limits criminal accountability to acts that are carried out for the benefit of foreigners who are already on Italy’s territory. They argued that defense’s challenges were irrelevant since this ground for exclusion from the criminal offence is deemed not applicable to the present proceedings.

The lawyer representing the State Legal Service of Palermo (Avvocatura dello Stato) endorsed all of the prosecution’s submissions on behalf of the Ministry of the Interior, who has been admitted by the judge as civil party in this case (see report from 25 February 2023).

Following the presentation of the prosecution’s arguments, the judge gave the floor to Iuventa defense lawyer Nicola Canestrini to submit requests concerning German-language translation of essential documents from the prosecution’s file.

On 17 March 2021, the defense had asked the prosecution to provide translation of investigative documents deemed essential for the Iuventa defendants to exercise their right to effectively understand the charges against them. On 29 March 2021, the Office of the Public Prosecutor had rejected this request by arguing that the documents indicated by the defense were not among those for which Italian law provides for mandatory translation under Article 143 of Italy’s Code of Criminal Procedure (hereinafter “c.p.p.”). Simultaneously, the prosecution had forwarded the defense’s request to the judge for interpretation of the so-called “essential documents” under Article 143 paragraph 3 c.p.p., which provides the option for the judge to order the free translation of “other documents or even only part of them, considered essential for the defendant to understand the charges against him” (unofficial translation). As a result, the judge had decided to partially grant the defense’s request and had ordered the translation of, in particular, a police summary report (but not of its annexes) in the prosecution’s file.

However, to date, the Iuventa defense lawyers claim that they still lack translations of investigative documents essential for the defendants to exercise their rights. Therefore, Canestrini submitted two requests to the judge in Trapani. Firstly, he reiterated the request that the prosecution provide the full translation (traduzione integrale) of 446 investigative documents of various content (audio, video, documentary etc..), which constitute the annexes to the previously translated police summary report. Secondly, Canestrini presented a request for a preliminary ruling by the Court of Justice of the European Union (CJEU) on interpretation of what should constitute so-called “essential documents” under Article 3 of the Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings. Article 3 establishes a duty for EU Member States to ensure that suspected or accused persons who do not understand the language of the proceedings are provided a written translation of all documents that are essential for the proper exercise of their defense. However, the text of the Directive leaves interpretation of what constitutes “essential” content to the discretion of national prosecutors and judges. Therefore, the Iuventa defense raised issues regarding the compatibility of Article 143 c.p.p and the Directive 2010/64/EU, arguing that a pronouncement by the CJEU would be crucial for the meaningful exercise of the defendants’ rights.

The next hearing is scheduled to take place at the Court of Trapani on 23 June 2023. The judge may already decide on both the constitutional complaint and the request for a preliminary ruling by the CJEU brought by the Iuventa defense.

The preliminary hearing on 12 May 2023 lasted nearly six hours. It began with a positive development on the issue of interpretation. The judge announced the Court had purchased the necessary portable equipment for simultaneous interpretation earlier than anticipated, and would make it available in all hearings going forward. For this hearing, however, the Iuventa defendants used their own privately rented equipment, as previously agreed (see report from 14 April 2023).

The judge also acknowledged receipt of a request from the office of the UN Special Rapporteur on the situation of human rights defenders, Mary Lawlor, to authorize one of her staff members and an interpreter to observe the hearing on 12 May 2023. Due to the short time frame, not all parties had had time to consent to the observation ahead of the hearing, meaning the observer was not present on the day. However, the judge verified the consent of all parties in the courtroom and confirmed the authorization of the observer from the Special Rapporteur’s staff for all preliminary hearings going forward.

As the first main point of order, the judge gave a summary reading of his decision (ordinanza) regarding the two prior challenges submitted by Save the Children (STC) defense lawyers, joined by other defense counsel, concerning alleged prosecutorial failures with regard to evidence sharing (see report from 24 March 2023). The prosecution refuted these allegations (see report from 14 April 2023). The judge ruled on both challenges that no violation of law had occurred and, therefore, no remedies were due.

First, the judge agreed with the prosecution that all evidentiary material in the case file had been deposited at the Trapani Court registry at the end of the investigation phase on 2 March 2021, including an index indicating the existence of CDs with audio-visual material. While the defense claimed to have only received the CDs on 4 March 2022, after specifically requesting them from the prosecution, the judge ruled that the evidence was both “knowable” (conoscibile) and “searchable” (consultabile) by STC defense from the time of the end of the investigation phase on 2 March 2021. He noted that the burden of identifying all CDs with audio-visual material present in the case file rested on the defense and that the defense’s “knowability” (conoscibilità) of the existence of such material had not been compromised.

Second, the judge found the prosecution’s seizure of specific IT equipment belonging to main witnesses during the investigation phase and subsequent return of the equipment to its owners without ever having shared it with the defense, to be within the prosecution’s discretionary remit. The judge confirmed that it did not appear the material had been used to substantiate the prosecution’s case. He further noted that it was within the prosecutors’ discretion to analyze material, consider it irrelevant to its case, and therefore decide not to use it as evidence, eliminating the need to share it with the defense lawyers.

The remainder of the hearing focused on a constitutional complaint filed by Iuventa defense lawyers challenging the legal basis of the offense of facilitating irregular entry of non-EU nationals to Italy. This offense is one of the main charges against the Iuventa defendants in the case, alleged in reference to their search and rescue (SAR) work in the Mediterranean. Iuventa defense lawyer Francesca Cancellaro presented the complaint, with elaboration on certain points from lawyers Canestrini and Gamberini.

The complaint challenges the legitimacy, on several grounds, of Article 12 of Italy’s Consolidated Immigration Act (Testo unico sull'immigrazione (TUI), based on Legislative Decree 286/1998). It challenges the legitimacy of the “facilitation” offense itself under Article 12, as well as several aggravating elements, namely those linked to the number of people who commit the offense and the number of people who are transported. These aspects, the complaint argues, violate the constitutionally mandated principles of equality, reasonableness and proportionality in law.

While Article 12 TUI is in line with the relevant European legal framework obligating EU member states to criminalize human smuggling, known as the Facilitators Package, the complaint also challenges the compatibility of the Facilitators Package with states’ obligations under the European Charter of Fundamental Rights (hereinafter EU CFR). It identifies two main problems with the Facilitators Package: (i) its failure to require a profit-motive for the offence of facilitating irregular entry or transit of a non-EU national into or through an EU member state’s territory, and (ii) its failure to explicitly require states to implement a “humanitarian clause” exempting such forms of assistance from the criminal offense. Both issues, the complaint contends, violate rights guaranteed under the EU CFR to both the individuals who would provide assistance and to the assisted themselves.

Cancellaro presented concrete examples demonstrating how the “facilitation” offense under Article 12 TUI punishes diverse conduct and disparate aggravating circumstances with severe penalties, all without distinguishing individuals acting for profit (e.g. people smugglers and members of organized crime groups) from individuals assisting migrants out of solidarity (e.g. family members or NGO-led SAR operations). She specifically noted the deterrent or “chilling effect” that the threat of criminal punishment has on a wide range of people, due to the ambiguity and broad scope for interpretation of the definition of “facilitation of irregular entry” under Italian law.

In support of its arguments, the defense cited recent case law of Italy’s Constitutional Court, the Court of Justice of the European Union (hereinafter CJEU), and the Supreme Court of Canada (R. v. Appulonappa of 27 November 2015). Specifically, Cancellaro elaborated on the legal principles and interpretive criteria that can be derived from: (i) Italy’s recent Constitutional Court decision (N.63 of 10 March 2022), which declared the illegitimacy of specific aggravating circumstances contained in Article 12 para. 3(d) TUI; and (ii) the 2021 CJEU decision on the crime of assisting asylum seekers under Hungary’s legislation (Commission v Hungary - Case 821/19 of 16 November 2021), where the Grand Chamber considered the deterrent effect of the threat of criminal sanction and the impact on the fundamental rights of both the individuals who would provide assistance and the assisted.

Finally, Cancellaro described how in cases of suspected illegitimacy with both the Italian Constitution and the EU CFR – so-called “double conflict” cases – several paths for remedy are possible. The judge in Trapani can decide whether to request a preliminary ruling from the CJEU himself, or to first raise questions of constitutional illegitimacy and potential EU CFR conflicts with the Italian Constitutional Court. While the Constitutional Court has sole jurisdiction over questions of constitutional legitimacy, it can, in turn, choose to refer specific questions regarding the European legal framework to the CJEU.

The judge in Trapani is free to decide which, if any, path to pursue. In all of these possible scenarios, the referring judge (giudice a quo) has sole competency to decide the content, scope and precise formulation of the questions to be referred; he is not obliged to refer the issues as presented in the complaint. In considering questions for referral, the judge must assess whether they are relevant and not manifestly ill-founded in relation to the case at hand. Cancellaro argued the relevance of raising these issues at this stage of the proceedings for reasons of both logical and legal priority.

The defense stressed the importance of the possible erga omnes effects of a ruling by the Italian Constitutional Court or the CJEU. Such a decision would impact all past, present and future cases invoking the provisions dealt with in the ruling(s). “It's time to rethink the whole discipline,” said Cancellaro. “As of today, this criminal case against individuals has taken on broader legal scope, extending beyond this singular case. This is a significant development for us as it fully reflects the nature of the charges, which were never only about the individual defendants but rather an attack on all who have engaged in similar conduct, are currently doing so, or may do so in the future.”

The prosecution will have the opportunity to present its observations on the complaint in the next hearing, scheduled to take place at the Court of Trapani on 26 May 2023.

The preliminary hearing on 14 April 2023 lasted less than two hours. The prosecution presented its arguments for the dismissal of two challenges raised in the previous hearing by Save the Children (STC) defense lawyers and joined by other defense counsel, which concerned alleged prosecutorial failures in relation to evidence sharing (see report from 24 March 2023).  

The first point addressed by the prosecution was its alleged failure to share all relevant evidence with defense at the conclusion of the investigation phase and therefore before the police interrogation of a particular STC defendant. Defense lawyers noted that it was eventually shared at a later date, but with repercussions not only for that defendant’s ability to defend themself, but also for the defense of two other STC defendants. On this point, the prosecution claimed that there was a fundamental misunderstanding (equivoco di fondo) on the part of the defense counsel. The prosecution argued that it had deposited all evidentiary material on which the charges against the accused are based at the Trapani Court registry at the end of the investigation phase on 2 March 2021, including the CDs of audio-visual material that the defense claimed to have only received on 4 March 2022. The prosecution highlighted that it had not been able to send an electronic version of the specific evidence cited by the defense lawyers at the time of the investigation’s closure, due to the quantity and nature of the audio-visual material. However, the evidence had been accessible, they claimed, in the files at the courthouse. Ultimately, they argued, it had been the responsibility of the defense lawyers to go to the Court of Trapani to access and review all of the shared evidentiary material. The judge specifically asked the prosecution to again clarify that all CDs shared with the defense on 4 March 2022 had already been included in the folders deposited at the Trapani Court registry on 2 March 2021, which the prosecutors confirmed.  

The second point addressed by the prosecution concerned evidence that had been stored on personal IT equipment belonging to main witnesses for the prosecution, which defense counsel argued had not been shared and can no longer be shared, as the relevant IT equipment was returned to its owners with no copy of the evidence retained. On this point, the prosecution acknowledged the accuracy of the facts as presented by the defense lawyers, including that specific material seized during the investigation phase (the IT equipment and its contents) had later been deemed unnecessary by the prosecution and therefore returned to the owners with a release order (dissequestro) dated 15 March 2021. However, the prosecution argued that the evidence had not been included in the case file at the end of the investigation phase because the prosecution had not considered the material to be relevant. The prosecution claimed that there is nothing in the indictment based on the alleged evidentiary material. As such, they argued that no violation of the rights of defense had occurred.   

Following the presentation of the prosecution’s arguments, the judge asked the lawyer for the State Legal Service of Palermo (Avvocatura dello Stato), representing the Ministry of the Interior in its capacity as a civil party in the proceedings (see report from 25 February 2023), if he wanted to add any observations. After the lawyer declared that he had nothing to say, the judge allowed STC defense lawyers to briefly respond to the prosecution’s submissions. As the defense’s views were in stark contrast to those of the prosecution, with both presenting fundamentally different versions of the same events regarding the exchange/communication that took place between them on the aforementioned points, the judge granted the defense an additional time period in which to submit further observations in writing. He announced that he would decide on the matter at the next hearing.  

After this discussion, the judge gave the floor once again to the prosecution, which announced it had submitted a written note containing the reformulation (riformulazione) of three counts of the indictment against the legal entities (two NGOs and a shipping company). The prosecution stated that the note further elaborates on the organizational fault and liability of the legal entities, further clarification of which had been requested by the judge during the hearing on 15 March 2023, when the judge agreed with defense lawyers that the alleged offenses raised by the prosecution against the NGOs in the case were too vague (see report from 15 March 2023). The judge neither read nor assessed the reformulation of the charges in the courtroom, but had it recorded in the minutes that all parties had received a copy of the prosecution’s written note, to which defense lawyers would be able to submit their observations in response. 

At the end of the hearing, Iuventa defense lawyer Nicola Canestrini informed the judge that the Iuventa defendants are in the process of privately renting portable individual equipment for simultaneous translation (see report from 25 February 2023). Before the Iuventa crew confirmed the rental contract, he asked the judge for prior authorization to connect such devices to the microphone system in the courtroom. The judge had it recorded in the minutes that he granted the authorization, and that the president of the Court of Trapani had formally requested that the Italian Ministry of Justice purchase similar equipment for courthouse, clarifying that the tender procedure would take at least a few months to be completed. Although the Iuventa defendants must provide themselves with such equipment privately in the meantime, this development marks a positive step towards guaranteeing the Iuventa defendants’ rights to adequate interpretation and translation. The purchasing of such equipment by the courthouse also promises to have a wider impact on fair trial guarantees in the long term, as this equipment can be used in other criminal proceedings in Trapani beyond the present case. 

The next preliminary hearing is scheduled to take place at the Court of Trapani on 12 May 2023.  

At the beginning of the hearing, on 24 March 2023, the judge acknowledged having received a request from the Ministry of Justice on 22 March 2023, asking him to provide information requested by Italy’s diplomatic mission in Geneva following a formal communication from two UN Special Rapporteurs – the Special Rapporteur on human rights defenders and the Special Rapporteur on the human rights of migrants. The information requested pertained to the numerous postponements of the preliminary hearings, the failure to translate key documents and the failure to provide adequate interpretation for defendants, among other fair trial concerns. The judge confirmed that he had sent a response to the Ministry of Justice.
The judge then informed the parties that he had received additional submissions from defense lawyers – two submissions on 21 March 2023 and a third on 22 March 2023 – in line with previous submissions made (see report from 25 February 2023) requesting a ruling on the territorial competence of the Court of Trapani in the case, in favor of courts in either Rome, Genoa, Siracusa or Ragusa, or the referral of the issue of territorial competence to the Italian Supreme Court. The prosecution responded by referencing its considerations on the point given at a previous hearing (see report from 1 March 2023) and to the judge’s order (ordinanza) communicated at the last hearing (see report for 15 March 2023), in which the judge already requested a ruling on the matter from the Supreme Court.

In response to the new submissions, the judge delivered a new order (ordinanza) on the matter of territorial competence. In it, he referred back to his decision from the previous hearing (see report from 15 March 2023), in which he rejected the request for a ruling on territorial incompetence. He also rejected the reasoning of the defense lawyers who argued for the competence of the courts of Rome, Genoa and Siracusa on the basis of the fact that the territorial competence must be determined according to the gravest offences accused (facilitation of irregular migration and transportation of foreign nationals) and of where this conduct materializes, i.e. the disembarkation ports. The judge also noted that he already submitted a request to the Supreme Court to clarify the issue of territorial competence based on the last place where part of the criminal conduct took place – in accordance with Articles 9.1, 12.1 (a and b) and 16.1 of the code of criminal procedure – as it applies to all of the accused and all of the alleged offences. Therefore, the Supreme Court, he noted, would decide on the possible competence of the Ragusa court. He further noted that the record (verbale) of the present hearing would be sent to the Supreme Court for completeness and reminded the parties that, according to consistent precedent, when the Supreme Court is requested to rule on territorial competence, it is also likely to examine the case more broadly, including merits.
 
Following this discussion, a defense lawyer representing accused members of Save the Children (STC) in the case raised two issues, also presented in a written submission to the judge. These included: 1) the prosecution’s failure to share relevant evidence with defense at the conclusion of the investigation phase and before the police interrogation of a particular STC defendant, which was eventually shared at a later date, but with repercussions not only for that defendant’s ability to defend themself, but also for the defense of two other STC defendants; 2) the prosecution’s failure to share key evidence with the defense at the close of the investigation, which is actually no longer possible to share, as no copy of the material was retained by the prosecution. The STC defense lawyer presented a comprehensive timeline detailing which information was shared with the defense by the prosecution when.

On the first point, the defense lawyer highlighted information that was missing from the 25,000 pages of information shared with the defense at the end of the investigation on 2 March 2021. As the defense waded through the prosecutor’s file over time, they noticed that certain evidence was missing. This led to a sequence of requests from the defense and a slow drip of new evidence shared by the prosecution. On 19 October 2021, when one of the STC defendants voluntarily accepted to be interviewed by police (which lasted 12 hours and comprised a total of 97 questions), significant evidence was still missing from the files that had been shared by the prosecution. Only on 4 March 2022 did the prosecutor order that all the files be shared and the defense received 39 CDs of new evidence. Among other key evidence contained in these files were videos in which it can be clearly seen that the rescue operations being conducted were done so under the instruction and in the presence of the Italian coast guard, Italian navy or Spanish navy, in their capacity as “on scene coordinators” in the technical terminology of the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual, which provides the guidelines that form the basis of all maritime and aviation search and rescue (SAR).

With regard the second point, the defense lawyers noticed on 19 January 2022 that neither the contents of the IT equipment of the main witness for the prosecution, nor that of the partner, who also allegedly saved some of the contents (photos) on personal equipment, were included among the information originally shared with the defense by the prosecution at the closing of the investigation phase. The defense therefore requested this content. However, on 26 January 2022, the prosecution responded that the equipment and its content had been deemed no longer necessary and therefore had been given back to the owners with a release order (dissequestro) dated 15 March 2021 – approximately two weeks after the closure of the investigation phase – and executed in May 2021. Moreover, the prosecutor had never ordered a copy of the contents of the IT equipment to be made.

Therefore, the STC defense lawyer requested action on both points. On the first point, a remedy was requested so that the defendants could properly exercise their defense rights. On the second point, as a remedy is unavailable, i.e. defense cannot accept accusations based on material that there is no way to verify or counter, the STC defense lawyer requested that the prosecutor strike out anything in the indictment based on this evidence. Lawyers for the Iuventa and MSF defendants joined the STC lawyer’s requests.

In this hearing, no defendants were physically present in the courtroom, only defense lawyers. For the government, a new lawyer was present from the State Legal Service of Palermo (Avvocatura dello Stato), assigned to represent the Ministry of the Interior in its capacity as a civil party in the proceedings going forward (see report from 25 February 2023).

The next preliminary hearing is scheduled to take place at the Court of Trapani on 14 April 2023.

On 15 March 2023, the judge ruled on the defense counsels’ motions to dismiss the case on the basis of lack of jurisdiction in Italy and the territorial competence of the Court of Trapani.  

First the judge decided on the motion to dismiss raised by Iuventa defense lawyer Francesca Cancellaro contesting Italy’s jurisdiction over conducts entirely committed in international waters. The arguments raised by Cancellaro on 25 February, and the Prosecution’s rebuttals made on 1 March, can be read in prior reports. Without significant elaboration in relation to more recent case law raised by the defense lawyers, the judge upheld the Court of Cassation’s 2018 ruling (Cass. pen., sez. I, 23.4.2018, n. 56138,M.T.J. e altro.) confirming Italy’s jurisdiction on incidents that took place in international waters.

The judge then read out an assessment, later provided to the parties, regarding the “territorial competence” (competenza territoriale) of the Court of Trapani. Some of the defense lawyers had previously argued that, on the basis of the alleged crimes, other courts in Italy would be more appropriate forums for the case. For example, the applicability of Article 1240(2) of the Navigation Code was suggested, which states that – under certain circumstances – “jurisdiction belongs to the court of the place of registration of the ship on which the accused was embarked at the time of the commission of the crime” (unofficial translation from Italian by ECCHR). In the 1 March hearing, while acknowledging the complexity of identifying the place of commission of the alleged crimes because of the number of events and subjects involved, the Prosecution had stressed its effort to avoid excessive fragmentation of the proceedings and guarantee the Constitutional principle of trial within reasonable time.  

Ultimately, the judge did not decide on the question regarding territorial competence in this preliminary hearing. Rather, the judge laid out a long and technical analysis of the legal theories through which the case could be split. If this happens, different constellations of the defendants would have their cases transferred to other courts across Italy. Although it falls within the presiding judge’s competence to decide on this question, the judge referred a final determination to Italy’s Supreme Court of Cassation, the country’s highest criminal court.  

The decision by the Court of Cassation as to whether territorial competence is well established in Trapani or if other courts may be more appropriate may take one or more months. In the meantime, the presiding judge decided to continue with the scheduled hearings to address other procedural questions.  

Lasty, the judge agreed with arguments raised by the other defense lawyers that the alleged offenses raised by the Prosecution against the NGOs in the case are too vague. The Prosecution stated that there is likely not enough information in the existing case file to amend the charges without further investigation. It is not clear how long such further investigation might take, but the judge indicated a preference for this issue to be meaningfully addressed in the next hearing as it could impact the expediency of the trial for all defendants.  

The next preliminary hearing is scheduled to take place at the Court of Trapani on 24 March 2023. The judge is anticipating a response from the Prosecution with regards to further investigation and amended offenses against the NGOs.

On 1 March 2023, the Iuventa defendants presented a statement about the shipwreck of migrants and refugees that occurred on 26 February 2023 off the coast of Crotone, Italy, which claimed the lives of more than 60 people. The Prosecution then presented its arguments in response to the defence lawyers’ submissions on the lack of jurisdiction and territorial competence of the Court of Trapani. 

At the beginning of the hearing, the Iuventa defendants asked the judge if they could read a voluntary statement (dichiarazione spontanea) about the recent shipwreck of migrants and refugees off the coast of Crotone, Italy. The judge granted this request in light of the human and analogical relevance to the case, but clarified that the facts fall outside the subject matter of the criminal proceedings.

Iuventa defendant Sascha Girke read out a statement on behalf of the Iuventa defendants in German, which was simultaneously translated in Italian by the two interpreters present in the courtroom. He explained that they were making the declaration in memory of the victims of the shipwreck, and that in a terrible and unequivocal way, the dead remind us of what is really at stake in this criminal proceeding. He recalled the words of Orlando Amodeo, Crotone’s state police medical director and rescuer, that people could have been saved, as it was not true, as claimed by some, that the sea conditions made it impossible to approach the boat. He noted that the Iuventa crew had been able to make rescues in similar sea conditions in the past, as have many others. He declared: “It is possible. It is necessary. It is the only right thing to do. Everything else is wrong.”  

Furthermore, Girke stressed the responsibility of political decision-makers for denying safe and legal means of entry for migrants and refugees, hence forcing them to attempt crossing the Mediterranean in unseaworthy boats. This, he declared, is what creates the conditions for the deaths of hundreds of people at sea. He concluded by expressing profound condolences and respect for the victims and their families, as well as solidarity with those who will have to endure similar journeys in the future. He closed by asking the judge to immediately terminate the criminal proceeding, and to repair and return the Iuventa ship. 

At the end of the reading of the statement, the judge expressed his deep sympathy for the victims of the shipwreck and granted the defense lawyers’ request for a minute of silence in memory of the victims and their relatives. All parties and those present stood up for a minute in silence. 

The judge then gave the floor to the Prosecution, which submitted arguments for the dismissal of all exceptions raised by the defense lawyers in the previous hearing regarding the lack of jurisdiction and territorial competence of the Court of Trapani. Firstly, with respect to the question of jurisdiction, the Prosecution endorsed the findings of the 2018 ruling of the Italian Court of Cassation (Cass. pen., sez. I, 23.4.2018, n. 56138,M.T.J. e altro.), which had confirmed the preventive seizure of the Iuventa ship. In their view, no new normative or jurisprudential elements have arisen that would cause the principle of law enunciated by the court to be considered outdated. Accordingly, the Prosecution reiterated Italy’s jurisdiction based on the Court of Cassation’s 2018 ruling. It submitted that Article 10 of the Italian Criminal Code does not apply to this case, but rather Article 6 of the Italian Criminal Code, as held by the preliminary investigation judge who had ordered the seizure of the Iuventa ship. The Prosecution also reaffirmed Italy’s jurisdiction over the legal entities accused in the case (two NGOs and a shipping company), stating that what matters for the purpose of establishing jurisdiction over the conduct of the legal entity is the commission of the predicate offense (not the administrative offenses or the headquarter of the entity).

Secondly, as for the territorial competence of the Court of Trapani, the Prosecution acknowledged the complexity of identifying the place of commission of the alleged crimes because of the number of events and subjects involved in the case. However, it reaffirmed the territorial competence of the Trapani Court based on the connection between the alleged criminal conducts, pursuant to Article 12 of the Code of Criminal Procedure. It rejected the application of Article 1240(2) of the Navigation Code by considering that it covers only crimes under that code committed abroad. Finally, the Prosecution stressed its effort to avoid excessively fragmenting the criminal proceeding and “traveling all over Italy to follow this case,” as well as to guarantee the Constitutional principle of trial within reasonable time.  

The lawyer representing the State Legal Service of Palermo (Avvocatura dello Stato) endorsed all Prosecution’s submissions on behalf of the Ministry of the Interior, who has been admitted by the judge as civil party in this case (see the 25 February 2023 monitoring report). 

The next preliminary hearing is scheduled to take place at the Court of Trapani on 15 March 2023. 

On 25 February 2023, the judge in Trapani ruled on the Italian government’s request to be added as joint plaintiffs (costituzione di parte civile) in the case. Subsequently, defense lawyers raised preliminary legal issues as to the lack of jurisdiction and territorial competence of the Court of Trapani. Two Italian-German interpreters were present in the courtroom to assist Iuventa defendants. 

At the beginning of the hearing, the judge informed the Iuventa defense lawyers and defendants present in the courtroom (Girke Sascha and Dariush Beigui) that he had transmitted their translation-related request to the Presidency of the Court of Trapani, but noted that it would take a long time before it could be resolved due to lack of funds. Specifically, Iuventa defense lawyers requested portable individual equipment for simultaneous translation, the daily rental of which would cost roughly 30 euros per person/device. Against this background, Iuventa defense lawyer Nicola Canestrini asked the judge whether, in order to surmount the long lead times for the court to purchase such equipment, the defendants could provide themselves with such equipment privately. The judge agreed and put it on record. 

As a first decision, the judge ordered the re-joining of the two separate proceedings, which had been requested by all parties. On 15 June 2022, the judge had ruled in favor of  defense lawyer’s arguments regarding procedural defects and split the case of three Iuventa defendants and one of the accused NGOs from the larger group (see the 15 June 2022 monitoring report). 

The most significant development of the hearing concerned the judge’s decision on the Italian government’s request to join as civil plaintiffs. The judge acknowledged that the government’s request contained errors (refusi) and considered the expressions used by the government to be “eccentric” (eccentriche) in the most troubling and much criticised section of the government’s request that had included extremely serious and false accusations against the defendants (see the 10 February 2023 monitoring report). Yet, since they were mere mistakes, he rejected the defense lawyers’ request to file a counter-claim for defamation (diffamazione aggravata) with the Public Prosecutor’s Office. Furthermore, after noting that he was not allowed to “delete” these sections, the judge asked the lawyer representing the State Legal Service of Palermo (Avvocatura dello Stato), responsible for filing the civil claim on behalf of the government, to delete the relevant parts of the document himself with a pen. Accordingly, the lawyer marked with a pen all sentences/expressions the judge considered to be “errors” or “eccentric” language in the document containing the Italian government’s request, which the judge put on record.  

The basis of the judge’s decision centered on a preliminary assessment of the admissibility of the government’s request, as well as the reasons given for submitting a claim for damages. While the judge rejected the request of the Presidency of the Council of Ministers to join as a civil plaintiff because he deemed it manifestly ill-founded, he granted the request of the Ministry of the Interior (MoI). The judge noted that the fact that the name of the Presidency of the Council of Ministers was included in the declaration to join as plaintiffs at the beginning of the document, but without submitting any specific reasons, nor compensation claims, in the final section and conclusions, invalidated the legitimacy (legittimazione attiva) of the Presidency’s request. Conversely, with respect to the MoI, the judge found sufficient reasons/grounds to establish the admissibility of its request to join as plaintiffs, particularly in light of the MoI’s competence to manage immigration flows, public order and security. He noted that allegations of facilitation of illegal immigration contained in the charges concern public interests safeguarded by the MoI, and that damages may arise from the commission of such crimes, as well as from all other offences charged. The judge did not admit the MoI’s civil claim with respect to the legal entities (two NGOs and a shipping company), based on issues of inadmissibility of civil actions against legal entities in criminal proceedings under Italian law.  

Importantly, the judge’s decision on the admissibility of the MoI’s request to join as plaintiffs did not analyze or assess the merits of the civil claim, which will only take place at a later stage of the proceedings, if the case goes to trial. Only in the event of a conviction at the end of an eventual trial, would the judge rule on the casual link between the conduct (crimes) and the types of damages allegedly suffered by the MoI. For now, the only consequences of the judge’s decision to admit the MoI as a civil plaintiff are procedural. Specifically, the MoI has become a formal party to the proceedings and can now participate in them to the extent provided for in the Italian Code of Criminal Law and Procedure. 

The next issues addressed in the hearing concerned defense lawyers’ arguments on the lack of jurisdiction of the Court of Trapani. These are preliminary matters that are normally raised at the early stage of the criminal proceeding (questioni preliminari). Iuventa defense lawyer Francesca Cancellaro argued the lack of jurisdiction based on the transnational nature of the alleged criminal offence (facilitation of illegal immigration under Article 12 of Italy’s Immigration Act), which would require that the conditions of Article 10 of the Italian Criminal Code be met in order to prosecute the Iuventa defendants for conducts entirely committed in international waters. In this respect, Cancellaro raised the judge’s attention to the 2018 ruling of the Italian Court of Cassation (Cass. pen., sez. I, 23.4.2018, n. 56138,M.T.J. e altro.), which had confirmed the preventive seizure of the ship Iuventa, to show disagreement with the Court’s findings and suggest taking into consideration more recent case law on the same matter. The most critical issue concerns the qualification of the conduct of humanitarian rescuers in international waters and the “link” with Italian territory, which would determine Italy’s jurisdiction on the alleged criminal offences. Moreover, Cancellaro submitted that such conduct is not “unlawful,” but “atypical,” as shipmasters have an obligation to render assistance to those in distress at sea. Accordingly, the entry of migrants into Italian territory cannot be considered “irregular” or “illegal” because they are exercising their rights as rescued persons, including to be put in a position to exercise their right to apply for international protection.

Subsequently, other defense lawyers raised additional issues as to the lack of “territorial competence” (competenza territoriale) of the Court of Trapani. In sum, based on the alleged conducts, the nature of the alleged crimes, and the criteria to establish a court’s territorial competence under Italian law, some of the lawyers submitted that other courts in Italy should instead have jurisdiction in this case. For example, the applicability of Article 1240(2) of the Navigation Code was suggested, which provides that – under certain circumstances – “jurisdiction belongs to the court of the place of registration of the ship on which the accused was embarked at the time of the commission of the crime” (unofficial translation from Italian by ECCHR). 

The next preliminary hearing is scheduled to take place at the Court of Trapani on 1 March 2023. The Prosecution will present its arguments in response to the defense lawyers’ submissions on the lack of jurisdiction and territorial competence of the Court of Trapani. 

On 10 February 2023, the longest preliminary hearing to date in the case of the four Iuventa defendants and others took place in Trapani, lasting nearly ten hours. It covered defense lawyers’ arguments against admissibility of the Italian government’s request to be added as joint plaintiffs (costituzione di parte civile), as well as the quality of Italian-German interpretation provided during Iuventa defendant Dariush Beigui’s questioning by police.

At the beginning of the hearing, the judge appointed a new German-speaking interpreter and Iuventa defense lawyer Nicola Canestrini asked her a few questions to verify her competence. She was appointed for both proceedings, as the case file still remains split (see the 15 June 2022 monitoring report).

The first issue addressed in the hearing was the request made on 19 December 2022 by the Italian government – specifically the Presidency of the Council of Ministers and the Ministry of the Interior – to be admitted as joint plaintiffs in the case. The defense lawyers for all of the accused in the case presented arguments against the motion, raising both procedural and substantive defects in the request as a basis for asking the judge to rule it inadmissible.

Lawyers representing the three entities accused in the case (two NGOs and a shipping company) focused on issues of inadmissibility of civil actions against legal entities in criminal proceedings under Italian law, where the case law on admissibility of compensation claims against legal entities remains contested. Meanwhile, all defense lawyers raised various flaws with the form and drafting of the government’s request.

The most critical and troubling defect raised by all defense lawyers concerned the actual content of the government’s request. Instead of reporting the actual charges brought by the prosecution against the defendants, which constitute the factual and legal basis to bring a civil claim in a criminal proceeding, the Italian government’s request listed inaccurate facts and groups of incidents. Most importantly, a particular section of the government’s request included extremely serious and false accusations of “belonging to a transnational crime organization dedicated to human trafficking”; “organizing the transfer of migrants from Sudan and Libya to facilitate illegal entry in Europe”; and “carrying out illicit money transfers through the hawala system.” Such grave false allegations prompted Iuventa defense lawyers and others to ask the judge to file a counter-claim for defamation (diffamazione aggravata) with the Public Prosecutor’s Office.

In this respect, Iuventa defense lawyer Francesca Cancellaro declared: “This motion has nothing to do with either the indictment or the investigative files, which are, however, the factual and legal basis from which the existence of damage to the Ministry of the Interior are deduced. Rather, it is the imaginary result of an ill-conceived cut and sew, perhaps stemming from another proceeding in which the prosecutor was previously involved. A carelessness in the drafting of the deed that shows little respect to the defendants and to the court.”

Following the defense arguments, the lawyer representing the State Legal Service of Palermo (Avvocatura dello Stato) that filed the civil claim on behalf of the government asked for the chance to make a brief reply, to which defense counsel consented. He apologized to the parties for what he clearly called a “mistake” and asked the judge to “delete” the section of the government’s request containing the false accusations against the defendants. While such a move was made to prevent the defamation claim from being pursued, the judge must still take into consideration this section for the purpose of ruling on the government’s request. At this stage of the preliminary hearings, there is no opportunity available for the government to formally amend its request. The judge informed the parties that he would only rule on the issue during the next hearing, as he required further time to consider the matter.

The next issue addressed in the hearing concerned the contested sufficiency of the interpretation provided to Iuventa captain and defendant Dariush Beigui during his voluntary interrogation with police. During the preliminary hearing on 19 December 2022, the judge appointed four linguistic experts – two for German, one for English, and one for Italian – to transcribe and assess the interrogation recordings to determine if the quality of the interpretation was adequate to ensure Beigui’s ability to effectively participate in the questioning. At the hearing, one of the linguistic experts (Italian to German) presented the results of the assessment.

In response to questioning by Iuventa defense lawyer Nicola Canestrini, the expert declared that he had observed many incomplete, unclear, and grammatically incorrect sentences in German due to the difficulty of translating long and complex sentences from Italian to German. He also noted that the interpreter during Beigui’s questioning used some words and phrases that are not in common usage, but can rather be characterized as “police jargon” (gergo poliziesco). Ultimately, because of such translation issues, the expert stated that he was “not sure” whether Beigui correctly understood the essential content of the interrogation. Defense lawyer Canestrini highlighted that translation issues are a systemic problem in Italy that jeopardize defendants’ due process guarantees, noting that the national criminal justice system lacks the power to check the up-to-date training and quality of interpreters listed in professional registers. The prosecution focused their questions on the issue of so-called “police jargon,” requesting clarification of the meaning and for concrete examples of its usage during Beigui’s questioning.

After two hours of recess for deliberation, the judge returned to the hearing room at around 18:00 to read his decision on the quality of interpretation. The judge rejected the Iuventa defense lawyers’ claim that the quality of the interpretation provided had been insufficient and hence a ground for invalidity. The judge acknowledged that the interpreter made mistakes and errors during Beigui’s questioning, but considered them to be mere “irregularities” that did not preclude or undermine the defendant’s ability to understand the “essential content” (contenuto essenziale) of the interrogation. Thus, he found no violation of Dariush Beigui’s due process rights regarding access to adequate interpretation.

Judges in Italy possess a wide margin of discretion in determining what counts as “essential content” for a defendant to understand in order to effectively exercise their defense rights, as the term is not further elaborated in the Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010 on the right to adequate interpretation and translation in criminal proceedings. For this reason, Beigui’s lawyer had requested that the judge refer the question to the European Court of Justice for clarification, but the judge excluded this option.

The next preliminary hearing is scheduled to take place at the Court of Trapani on 25 February 2023.

On 13 January 2023, the judge announced the postponement of the hearing in response to a request from the court-appointed linguistic experts for more time to complete their assessment of the quality of interpretation provided to Iuventa captain and defendant Dariush Beigui during his voluntary interrogation with police.

In line with Beigui’s rights as a defendant, he requested to be voluntarily questioned by the police, with the understanding that the information would then be added to the case file. Such questioning offers the defendant the chance to clarify essential issues and provide additional information, but also carries the potential risk that this information may be used against them in the proceedings. Beigui and his lawyers travelled to Trapani on three separate occasions – 29 October, 12 November and 2 December 2022 – to complete the questioning, but each time the interrogation was halted prematurely due to inadequate Italian-German interpretation. During the hearing on 19 December 2022, the judge ordered an expert review to assess the quality of the interpretation provided to Beigui during the three attempted interrogations, for which he appointed four qualified linguistic experts – two for German, one for English, and one for Italian – to transcribe and assess the interrogation recordings.

Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010 on the right to interpretation and translation in criminal proceedings, requires that suspects have access to adequate interpretation/translation in order to effectively exercise their defense rights and to protect the fairness of the proceedings. Access to adequate interpretation and translation in accordance with basic fair trial rights has been a recurring concern during the preliminary hearings in the case to date.

The next preliminary hearing is scheduled to take place at the Court of Trapani on 10 February 2023.

On 19 December 2022, the last preliminary hearing for the year, lasting nearly six hours, for the Iuventa defendants and others took place in Trapani. Notable steps were taken by the judge to ensure defendants’ rights to adequate interpretation. In a significant development, the Italian government requested to join as plaintiffs seeking damages in the case.

During the hearing, the judge considered but ultimately further delayed rejoining the two case files, which had been split on 15 June 2022 due to the fact that three of the four Iuventa defendants and the NGO Save the Children had not been properly informed of the termination of the investigation phase (see previous observation reports from 15 June, 29 October and 3 December). When the case file was split, it opened the opportunity for these defendants to avail themselves of specific rights available during a limited time window after being properly notified of the termination of the investigation phase, including the right to request a voluntary interrogation by authorities with the understanding that the information would then be added to the case file. Such questioning offers a defendant the chance to clarify essential issues and provide additional information, but also carries the potential risk that this information may be used against them in the proceedings. On three separate occasions – 29 October, 12 November and 2 December 2022 – Iuventa defendant Dariush Beigui and his lawyers made the trip to Trapani for Beigui to be voluntarily questioned by the police, but on each occasion the interrogation had to be halted due to inadequate interpretation between Italian and German.

During the 19 December hearing, the prosecution argued that the case files could be rejoined and the proceedings progress, as Beigui had been given three opportunities for the voluntary interrogation, but he and his lawyers had obstructed the process. In direct contrast, Beigui’s lawyer argued that the case should not proceed until the issue of adequate interpretation was solved and Beigui was afforded his right to an interrogation with suitable interpretation provided. Beigui’s lawyer also requested that the Court enter his personal phone recording of the third questioning attempt into the case file, because the prosecution had unlawfully shut off the recording during the interrogation. The prosecution objected, but after listening to the recording in chambers, the judge overruled the prosecution’s objection and entered the recording into the case file. In an important development, the judge also ordered an expert review of the three attempted interrogations to date, to determine the quality of the interpretation provided. For this purpose, he appointed four apparently qualified interpreters – two for German, one for English, and one for Italian – to transcribe and assess the interrogation recordings, amounting to over six hours of audio in total, to be completed before the next preliminary hearing in January.  

The judge also made significant strides to improve the interpretation available to the non-Italian speaking defendants in the courtroom. Not only was a qualified, capable interpreter provided for the Iuventa defendants during the hearing on 19 December, but the judge formally ruled that the Iuventa defendants must be provided with additional, qualified linguistic assistance during the future proceedings to “ensure effective participation in the trial.”

In addition to the welcome progress on fair trial rights regarding adequate interpretation for the defendants, another key development occurred in that the Ministry of Interior and the Prime Minister’s Office requested to join the case as joint plaintiffs. In doing so, the government seeks to claim damages – both material and reputational – allegedly incurred by the Italian state as a result of the defendants’ rescue activities at sea. Though permitted by Italian criminal procedure, it is rare for the Prime Minister’s office to make such a move, as opposed to the Ministry of Interior (responsible for public order) or Ministry of Transport (responsible for ports and ships). The court must now consider the application by the Italian government and decide on the matter in a subsequent hearing. 

The latest move by the Italian government seeking to join the case as joint plaintiffs raises concerns regarding the politicization of the trial, as it accompanies a recent escalation in negative public discourse and policy towards civilian sea rescue in Italy. While Italy’s courts are completely independent of the government, these developments reaffirm the need for independent observation to ensure open and informed public debate regarding fair trial rights.   

The next preliminary hearing is scheduled to take place at the Court of Trapani on 13 January 2023.

On 3 December 2022, the judge in Trapani once again announced the postponement of proceedings rather than holding a full hearing, as authorities again failed to provide defendants with adequate interpretation and translation in accordance with basic fair trial rights. However, the hearing marked a welcome development in that independent observers were granted access to the courtroom for the first time. 

Preliminary hearings in Italy are typically closed to the public to protect the presumption of innocence, as well as the privacy and safety, of the defendants. However, as pointed out by ECCHR and its partner organizations in our initial requests to conduct independent observation of the hearings in May 2022, the presumption of innocence in this case was already severely comprised. Legal documents were leaked to the Italian press during the five-year preliminary investigation, including the full names of Iuventa crew members. This resulted in a heavy media smear campaign, surveillance by Italian authorities, as well as threats by far-right movements against those named in the documents. In light of these considerations and the case’s significant implications for human rights defense at sea and civil society action more broadly, independent documentation of the judicial process serves as a crucial resource for ensuring informed public debate and fair proceedings. In response to the independent observers being permitted to enter the courtroom on Saturday, defense lawyer Francesca Cancellaro commented: “As far as we know, this is the first time that a court in Italy has allowed the presence of trial observers in a chamber hearing in order to give civil society the opportunity to be directly informed about what is happening in court. The publicity can contribute to a fair trial, which is a fundamental principle of democratic society that must be guaranteed.” 

Despite this positive development, it remains concerning that another preliminary hearing appointment was squandered without any substantial progress made on the case due to the repeated failure of the authorities to provide defendants with adequate interpretation/translation. On three separate occasions now – 29 October, 12 November and 2 December 2022 – Iuventa defendant Dariush Beigui and his lawyers have made the trip to Trapani for Beigui to be voluntarily questioned by the police. In line with his rights as a defendant, Beigui may request such an interrogation, with the understanding that the information will then be added to the case file. Such questioning offers the defendant the chance to clarify essential issues and provide additional information, but also carries the potential risk that this information may be used against them in the proceedings. Beigui’s questioning has been halted prematurely on each of these three occasions due to inadequate Italian-German interpretation. Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010 on the right to interpretation and translation in criminal proceedings, requires that suspects have access to adequate interpretation/translation in order to effectively exercise their defense rights and to protect the fairness of the proceedings. “We are neither the only ones whose rights are violated, nor the ones who are worst affected,” say the accused Iuventa crew members. “Every day, all over the EU, people face court cases that are not translated and interpreted adequately, making it impossible to defend oneself.”

The judge cannot make further progress in the preliminary hearings until the issue is resolved and Beigui’s questioning is completed, a fact which impacts all accused – 17 individuals and three organizations – in the case. 

The next preliminary hearing is scheduled to take place at the Court of Trapani on 19 December 2022.

The 29 October 2022 hearing lasted only a few minutes, as the judge announced the postponement of the hearing due to the pending questioning by police of Iuventa captain and defendant Dariush Beigui.

After the judge’s decision on 15 June 2022 to suspend the proceedings due to procedural defects, the case files of four defendants – three Iuventa crew members and the NGO Save the Children – were split from the others in the case. The prosecution had to properly notify the four defendants of the termination of the investigation phase, which it had previously failed to do. Following this notification, Iuventa defendant Dariush Beigui then exercised his right to request voluntary questioning by the police, to be included into the case file. However, the police failed to interrogate him on time, leading to the postponement of the 29 October hearing. 

Later in the day on 29 October, Beigui presented himself before the police for voluntary questioning. The interrogation was halted prematurely, however, due to inadequate interpretation from Italian to German, which the police are required to provide Beigui during questioning. While the interpreter was a native German-speaker, registered with and having worked for the Court of Trapani in the past, she reportedly lacked the technical capacity to adequately interpret the interrogation, as she was unfamiliar with requisite legal and investigative terminology, including basic words like “defendant.” Beigui commented: “We are taking the risk of voluntary interrogation that could end up being used against us in order to finally move forward in this case. We believe that sea rescue is not a crime and, therefore, we have nothing to hide. But the quality of the interpretation was totally inadequate to clarify essential issues.” The interrogation is scheduled to resume with a new interpreter on 12 November 2022. 

Inadequate translation and interpretation continue to pose significant fair trial concerns for the Iuventa defendants during the preliminary hearing phase of the case. Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010 on the right to interpretation and translation in criminal proceedings, requires that key documents be translated to ensure that suspects are able to adequately exercise their defense rights and to protect the fairness of the proceedings. The Iuventa crew members and other defendants in this case face serious charges that could potentially result in 20 years in prison and high fines. Yet, to date, the entire case file containing the evidence against the Iuventa defendants has not been translated into German and the interpreters provided by the Court of Trapani – both at the first preliminary hearing on 17 May 2022 and Beigui’s questioning by police on 29 October 2022 – have been inadequate to ensure the defendants’ rights regarding effective participation in the proceedings. The Iuventa crew members’ defense lawyers have announced that they may ask the Court of Trapani to refer the issue to the European Court of Justice if it remains unresolved. 

The next preliminary hearing is scheduled to take place at the Court of Trapani on 3 December 2022.
 

On this day, the judge ruled in favor of the defense’s arguments regarding procedural defects (see previous reports). He issued a 15-page decision finding that three Iuventa defendants and one NGO were not properly informed of the termination of the investigation phase and the date of the first preliminary hearing. As a result, the case of these four defendants has been split from the larger group and the prosecution will have to properly serve each of them with a notice of the termination of the investigation, allowing them to submit additional files or testimony into the investigation. In the meantime, the proceedings for the other 17 co-defendants will remain suspended. The hearings are expected to resume in autumn 2022.

The second preliminary hearing lasted only a matter of minutes. As the trial observers were not permitted to enter the courtroom, we once again gathered information through interviews with defendants and defense lawyers.  

After reviewing the challenges with regards to proper service of process raised by defense lawyers in the 21 May hearing, the prosecution informed the judge of its opinion that any mistakes it made in service of process were, ultimately, irrelevant and did not warrant going back to the end of the preliminary investigation phase. The judge will now consider the prosecution’s position and respond in a hearing on 15 June with a decision. If the judge decides that it should revert to the phase of the closing of the preliminary investigation, then defendants would then have the 20 days allowed by Italian criminal procedure following the termination of a prosecutorial investigation to make certain requests, such as to be questioned by the police or judicial authorities, to have defense counsel interview witnesses in the case file, and to submit further information into the case file. If the judge decides not to send the case back to the phase of the closing of the preliminary investigation, then the next hearing would take place on 5 July.

The first preliminary hearing in the case began at 10:30 at the Trapani courthouse and lasted for approximately three hours. The four Iuventa defendants – Kathrin Schmidt, Dariush Beigui, Sascha Girke and Uli Tröder – were present on-site, though only three entered the courtroom. Dariush Beigui remained outside, as he was in quarantine before heading out on his next search and rescue mission. The other 17 defendants in the case were not present on-site, but represented in the hearing by their lawyers. A few minutes’ walk from the courthouse, around 80 supporters of the defendants demonstrated their solidarity at the Trapani harbor, across from the still-impounded Iuventa ship, flanked by journalists and police officers.

Members of trial observation team waited outside the courthouse for the presiding judge to make a decision regarding access to the hearing for observers. Ultimately, we were not allowed access to the hearing, but base our notes on interviews with and public statements made outside the courthouse by the defendants and several defense lawyers.

In the preliminary hearing, legal counsel for the Iuventa defendants Nicola Canestrini argued for the trial observers to be allowed to enter on the basis of transparency of the proceedings, arguing that “secret justice is a justice of dictatorships, not democracies and the rule of law.” The presiding judge and all present defense counsel consented to the presence of the public, but on the basis of the prosecution’s objection, trial observation was not permitted for this hearing. The prosecution argued that there is no specific role for trial observers contemplated by Italian criminal procedure, and that and European Court of Human Rights jurisprudence only mandates public access where there is a determination of guilt or innocence in the course of the proceeding. Canestrini challenged this reasoning, arguing that: “The pretrial hearing is held in chambers to protect the rights of the defendants, not of the prosecution. It should be the defendants who decide whether they would like to have public observation of the hearing.” The prosecution agreed to reconsider the observers’ request for subsequent hearings.

The Iuventa defense counsel also argued that the prosecutors failed to properly serve the defendants notice of two critical aspects of the proceedings: the termination of the investigation phase, and the date of the first preliminary hearing. In Italian criminal procedure, defendants have 20 days following the termination of a prosecutorial investigation to make certain requests, such as to be questioned by the police or judicial authorities, to have defense counsel interview witnesses in the case file, and to submit further information into the case file.

As defense lawyer Francesca Cancellaro argued, after such a long investigation, the prosecution should have had time to follow proper criminal procedure and it would not be appropriate to now rush the proceedings. “If the cost of a faster trial will be a sacrifice of the defendants’ rights, then this is not fair. Respect of our clients’ rights, and the innocence of the crimes of which they are accused, are two parts of the same issue.” Canestrini added that notice was given to the defense counsel but not the defendants themselves: “If the Italian procedural code says the defendants have to be served personally, then they have to be served personally. It is not in the interest of me, it is in the interest of justice. It is their rules, they have to follow them just as we do.” Ensuring proper notice of defendants is a pillar of fair trial rights, as systemically marginalized groups typically bear disproportionate harm from breaches in such procedure, while more privileged defendants can often rely on their lawyers to relay such crucial information.

There will be two subsequent hearings on 7 and 15 June. On 7 June, the prosecution will be given the opportunity to reply to the defense’s challenges around notice and on 15 June, the judge will decide whether the case should be returned to the stage of the closing of the investigation. If it is, the Office of the Public Prosecutor will have to serve the defendants notice once more and the defendants will again have 20 days to submit additional files into the investigation. If the judge decides to proceed with the preliminary hearing stage, the next hearing is scheduled to take place on 5 July.

If the hearing on 5 July takes place, the defense counsel also intends to challenge the adequacy of the courtroom interpretation provided to the defendants. All three Iuventa crew members present at the first preliminary hearing on 21 May shared a single interpreter who lacked sufficient technical qualifications. While the defense counsel was able to translate key questions for the defendants, Canestrini is concerned that many defendants in Italy do not have this luxury. “In the courtrooms of Italy, every day defendants are tried without even understanding what it is they are accused of.” No further defendants were present in the courtroom on 21 May, but should they be for subsequent preliminary hearings, they should also have access to adequate interpretation.

ECCHR is partnering with other legal human rights organizations – Giuristi Democratici, Swiss Democratic Lawyers, European Democratic Lawyers and the European Association of Lawyers for Democracy & World Human Rights – to closely monitor the preliminary hearings in the sea rescue case.

The purpose of preliminary hearings in Italian criminal procedure is to verify the charges against the accused. Preliminary hearings take place at the end of the preliminary investigation phase, after the public prosecutor has officially notified the accused of the charges against them. The presiding judge can either close the case without the need for a trial; resolve the case on the basis of the evidence already submitted through one of two special procedures (either a plea bargain or an abbreviated trial); or make a determination that the case shall proceed to trial. The judge must also ensure that the defendants’ rights set forth in Italian criminal procedure have been respected in order to ensure a fair judicial process.

According to Italian criminal procedure, preliminary hearings are closed to the public. This is to protect the presumption of innocence, privacy, and safety of the defendants. In this case, however, legal documents were leaked to the Italian press during the five-year preliminary investigation, including the full names of Iuventa crew members. This resulted in a heavy media smear campaign, surveillance by Italian authorities, as well as threats by far-right movements against those named in the documents. Given these existing threats to the presumption of innocence already in the public domain, and in light of the case’s significant implications for human rights defense at sea and civil society action more broadly, ECCHR and its partner organizations submitted applications to the judge in May 2022 requesting permission to conduct independent observation of the hearings on-site. The requests emphasized the fact that independent documentation of the judicial process is a crucial resource for informed public debate.