Italien - Seenotrettung - Iuventa

Seenotretter*innen unter Druck: Italien kriminalisiert Iuventa-Crew

Italien - Seenotrettung - Iuventa

Seenotretter*innen unter Druck: Italien kriminalisiert Iuventa-Crew

Das Schiff Iuventa ist 2016 in See gestochen, um Menschenleben auf dem Mittelmeer zu retten und gegen Europas abgeschottete Grenzen zu protestieren. Innerhalb von nur einem Jahr barg die Freiwilligen-Crew mehr als 14.000 Geflüchtete und Migrant*innen in Seenot. Doch 2017 beschlagnahmte die italienische Regierung das Schiff. Nach mehrjährigen Ermittlungen folgte 2021 die Anklage: Beihilfe zur illegalen Einreise von Migrant*innen.

Der Fall der Iuventa steht beispielhaft dafür, dass überall auf der Welt Solidarität kriminalisiert und ziviler Widerstand eingeschränkt wird.

Fall

Im Mai 2022 begann das Vorverfahren gegen vier Mitglieder der Iuventa-Crew, 17 weitere Personen und drei Organisationen: die NGOs Save the Children und Ärzte ohne Grenzen sowie die Reederei, der die Schiffe Vos Hestia und Vos Prudence gehören, mit denen die beiden NGOs ihre Seenotrettungseinsätze fahren. Sollten die Beschuldigten verurteilt werden, drohen ihnen bis zu 20 Jahre Haft und Strafen in Millionenhöhe.

Doch das Vorverfahren darf nicht hinter verschlossenen Türen stattfinden, denn er hat große Auswirkungen auf Geflüchtete, Migrant*innen und die zivilgesellschaftliche Arbeit. Deshalb beantragten das ECCHR und andere Menschenrechtsorganisationen, das Verfahren zu beobachten.

Die Anschuldigungen gegen Seenotretter*innen wie die Iuventa-Mitglieder sind ein schwerer Angriff auf zivilgesellschaftliche Akteure, die die Grundrechte von Geflüchteten und Migrant*innen verteidigen. Deshalb reichte das ECCHR bereits im November 2019 eine Beschwerde beim UN-Sonderberichterstatter zur Lage von Menschenrechtsverteidiger*innen ein. Das zentrale Argument: Die strafrechtlichen Ermittlungen gegen die Iuventa-Crew und die damit einhergehende mediale Schmutzkampagne, angefeuert durch die italienischen Behörden, verletzen die UN-Erklärung zu Menschenrechtsverteidiger*innen und den Internationalen Pakt über bürgerliche und politische Rechte (UN-Zivilpakt). Im Oktober 2020 verurteilte die UN-Sonderberichterstatterin Italiens Vorgehen gegen die Seenotretter*innen öffentlich und forderte, die Anklagen fallenzulassen.

Kontext

2014 hatte Italien seine eigene Seenotrettungsmission auf dem Mittelmeer, Mare Nostrum, eingestellt. Daraufhin schritten zivilgesellschaftliche Organisationen ein, um Menschen in Seenot zu retten. Die Geflüchteten und Migrierenden, die über das zentrale Mittelmeer fliehen, wollen oft auch den brutalen Zuständen in Libyen entkommen – Zuständen, die als Verbrechen gegen die Menschlichkeit qualifiziert werden könnten.

Seenotrettung ist kein Verbrechen. Im Gegenteil: internationales See- und Menschenrecht verpflichtet Schiffe dazu, Menschen in Seenot zu retten. Die zivilen Seenotretter*innen wurden aktiv, weil nationale und europäische Behörden ihrer völkerrechtlichen Pflicht nicht mehr nachkamen. Doch europäische Staaten wie Italien verschärften ihre Einwanderungsregelungen massiv und unterstützten etwa die libysche Küstenwache mit Ausrüstung und Trainings, um Menschen von der Flucht aus Nordafrika abzuhalten, während sie gleichzeitig die zivile Seenotrettung zunehmend kriminalisierten.

Grundlagen

Das ECCHR und weitere Menschenrechtsorganisationen – Giuristi Democratici, Swiss Democratic Lawyers, European Democratic Lawyers and the European Association of Lawyers for Democracy & World Human Rights – haben sich zusammengetan, um das Vorverfahren in dem Seenotrettungsfall zu dokumentieren. Hier lesen Sie unsere Berichte.

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.

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.

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.

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 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 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.

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.

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