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.

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 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 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 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 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.

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.

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.  

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 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 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 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 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 29 September lasted approximately three hours, not including a 2-hour recess when the judge entered chambers to deliberate.

At the beginning of the hearing, the judge ruled rejecting the Iuventa lawyer’s request in the previous hearing to suspend the preliminary proceedings in Trapani pending the ruling of the Court of Justice of the European Union (CJEU) on relevant questions of il/legitimacy related to the “facilitation” offense (see report from 8 September 2023). The CJEU referral was made in relation to a different case before the Court of Bologna, but deals with the same substantive legal questions posed by Iuventa defense counsel in Trapani on 12 May 2023, and hence, the ruling may impact the case. Although the judge declined to pause the proceedings in Trapani, the Iuventa defense’s request and the Bologna judge’s decision were placed on record.

After confirming that the Court of Cassation (Corte di Cassazione) had still yet to provide the legal reasoning (motivazioni) behind its ruling of 6 July 2023 regarding the “territorial competence” (competenza territoriale) of the Court of Trapani (see reports from 15 March 2023 and 14 July 2023), the judge asked all parties to submit any further issues to be dealt with in the preliminary hearing phase.

Defense counsel for Save the Children (STC) requested to hear two expert witnesses, who had been appointed during the investigation phase as part of a team of experts to listen to and make transcripts in Italian of wiretapped communication authorized by the preliminary investigation judge (GIP) from STC’s rescue ship, Vos Hestia. As the experts were only appointed shortly before the investigation phase closed, the reports were not ready at the time of closing, and as a result, defense counsel was not able to question the experts during the standard period for doing so. Hence, defense counsel insisted on the opportunity to question the experts on their transcription methodology as well as the English-Italian translation.

Specifically, STC defense noted the importance of questioning the misrepresentation of the literal English meaning of a key word identified by STC’s external expert consultant as having been translated into Italian in a manner that potentially prejudiced STC defendants. The lawyer singled out one excerpt of the transcription of the wiretapped communications where the English words “drive man” spoken by one of the defendants, had been translated as “scafista” – an Italian term colloquially used for a boat driver that already connotes criminal activity, often used in conjunction with the term “trafficanti” (traffickers) – rather than using the more literal Italian term for a driver, “conducente.” Iuventa defense counsel, Nicola Canestrini, joined in this request.

Defense counsel for MSF requested to examine the legal representative of the company that conducted the wiretapping, as well as additional information on the time parameters a wiretap conducted on 26 March 2017. The lawyer also asked the judge to compel the Italian Maritime Rescue Coordination Center (MRCC) to produce its records of all calls (“interlocuzioni telefoniche”) made on 25 and 26 March 2017 with the vessels present in the SAR locations related to MSF’s rescue ship Vos Prudence.

Defense counsel for Iuventa asked the judge to compel the MRCC to produce its records of all communications (“comunicazioni”) regarding events that occurred on 10 September 2016 and 18 June 2017 with the vessels present in the SAR locations in which the Iuventa rescue ship had been involved. The request was made as such documentation is believed to include exculpatory evidence in relation to a number of the alleged charges, namely proof of coordination and cooperation with Italian authorities. Iuventa’s lawyer also requested Lorenzo Pezzani be heard and examined as an expert witness in relation to his organization’s expert forensic analysis of the Iuventa crew’s rescue operations, which claims to disprove the accusations against them. Iuventa defense counsel also announced that some of the Iuventa defendants would like to make statements to be submitted into the record.

The lawyers for MSF and STC also asked the judge that some of their defendants be examined on specific dates at the Court of Trapani.

The prosecution agreed to the STC defense’s request to hear and question the expert witness on the methodology used during the listening to and transcribing into Italian of the wiretapped communications but opposed the request to hear and question the expert witness who carried out the English-Italian translation. As motivation, the prosecution expressed their opinion that the translation of words such as “drive man” to “scafisti” should have no bearing on the assessment of transcript’s accuracy, as they believe the terms mean the same thing. The prosecution also objected to: (i) MSF defense counsel’s request to examine the legal representative of the company that conducted the wiretapping referred to above; (ii) the acquisition of the conversations between the MRCC and the NGO search and rescue boats; and (iii) Iuventa defense’s request to hear Lorenzo Pezzani as an expert witness, citing their irrelevance. 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 – joined the prosecution in its requests and conclusions.

After an approximately two-hour period of time to deliberate, the judge returned to deliver his decisions. He accepted the STC lawyer’s request to examine two expert witnesses responsible for listening and making transcriptions in Italian of the wiretapped communication, which he assigned to take place during the hearing on 6 October. However, he rejected the other requests for evidence submitted by the defense lawyers, citing provisions under Article 422 of the Code of Criminal Procedure (CPP), which states that evidence that may be gathered at the preliminary hearing must meet the requirement of being “clearly decisive” for the purpose of the pronouncement of a judgement of no case to proceed to trial. Specifically, he refused the request to obtain the communication between the Italian MRCC and the defendants for the maritime search and rescue operations cited in the charges, as he noted that both MSF and Iuventa lawyers had not previously submitted such requests directly to the Italian Coast Guard (Comando Generale delle Capitanerie di Porto) and that the lawyers still had the option to do so. He also rejected the Iuventa request to hear Lorenzo Pezzani as an expert witness, saying he had not been appointed as a defense expert consultant and that the evidence referred to in the previous filing relating to the forensic analysis in question had not been included in the records of the proceedings. In sum, as a motivation, he deemed these requests not to meet the “decisive” requirement for the purpose of Article 422 CPP.

Finally, the judge announced the calendar of preliminary hearings until the end of the year. He confirmed that the Iuventa defendants would be able to deliver their statements in the hearing on 13 October and he scheduled the exams of MSF and STC defendants on 27 October and 3 November, respectively.

The preliminary hearing on 6 October lasted around three hours.

In response to the approved request made by MSF defense counsel in the previous hearing (report from 29 September 2023), the judge formally appointed two experts to listen to and make transcriptions in Italian of specific wiretapped communications from MSF’s rescue ship Vos Prudence (RT 29/2017), which had been authorized by the preliminary investigation judge (GIP). Rather than appoint new experts, the judge extended the assignment of the experts who had already done the work for the other wiretapped communications, setting a 30-day deadline.

Subsequently, the judge read the articles of the Italian Code of Criminal Procedure (CPP) to begin the examination of two expert witnesses requested by Save the Children (STC) defense counsel at the last hearing. These experts were appointed to listen and carry out transcriptions in Italian of wiretapped communications authorized by the preliminary investigation judge (GIP) in STC’s rescue ship Vos Hestia (see report from 29 September 2023). STC defense counsel was authorized to hear and ask questions regarding: (i) the methodology used to carry out the listening and transcription of the wiretapped communications; and (ii) the reasons why the English word “drive man” had been translated as “scafista” instead of “conducente” (the literal term for “driver” in Italian). One of the expert witnesses was present in the courtroom, while the other was on video link. The examination was recorded, as expressly requested by the defense.

STC defense counsel started by asking questions on methodology to the expert witness responsible for listening to and making transcriptions of wiretapped communications in Italian, who had also been the expert responsible for preparing the final expert report (“relazione finale”). The defense asked if the team (comprising four experts in total) had used sound cleaning and sound slowing programs. The expert replied that they had not used sound slowing programs, but had used some sound cleaning, though not much because they were aware that such programs can distort the sound. Counsel then asked questions about the extent to which the expert considered the observations, additions, and changes proposed by STC’s external consultant, specifically whenever they diverged from what the experts had heard and transcribed. The expert replied that whenever STC’s external consultant had made comments or proposed changes and additions, the experts had considered them and sometimes re-listened to the communication to make a second check. If they had not ultimately implemented changes it was because they disagreed. STC defense counsel noted with disappointment that the experts had not included in the final report any explanation or analysis of when and how they had dealt with the observations, additions, or changes proposed by STC’s external consultant during the course of their work. Moreover, the defense wanted to verify whether the experts had used the forensic police’s raw notes on the wiretapped communications (“brogliaccio”) in drafting the content of the final expert report. The expert denied having done so, but admitted to having read these notes in the course of their work.

STC defense counsel then turned to the expert on video link, who had been responsible for listening to and transcribing the communications in English as well as translating them into Italian. The STC lawyer also asked this expert if and how she had taken into account the observations, additions and changes proposed by STC’s external consultant. The expert said there had been continuous exchange with STC’s expert consultant, including on any divergences of opinion. She said that whenever the consultant had expressed disagreements, the outcome was then agreed upon together (concordato insieme). She said that she did not remember excluding any observations, additions, or changes from this process of mutual discussion and agreement. The expert also stated that she had translated literally rather than idiomatically, which was her preference because she noted cultural differences and interpretations that might impact on the outcome. The lawyer then asked the expert to explain why she had translated the English word “drive man” as “scafista” instead of “conducente” (the latter being the literal Italian term for “driver” whereas the former is a colloquial term that already connotes criminal activity). The expert acknowledged that she made a mistake and explained how it had happened. She stated that the first time she had listened to the communication in English she had understood the phrase as “trade man” and had decided to translate it with the Italian “scafista.” Later, following observations by and discussion with STC’s expert consultant, who said that she had heard “drive man,” the expert had decided to listen to the communication again and admitted that indeed she could hear “drive man.” So, in the final document, she decided to change the English transcription of the wiretapped communication from “trade man” to “drive man,” but forgot to also correct the translation of the word in Italian (“conducente” instead of “scafista”).

Finally, the judge had it recorded in the minutes that the expert witness admitted that she made a mistake in the transcription of the translation in Italian of that part of the wiretapped communication. As there were no further questions, the judge then thanked the two expert witnesses and closed the examination phase.

Towards the end of the hearing, the judge referred to the calendar of upcoming preliminary hearings and activities. With reference to the examinations of some of the defendants (MSF and STC), the lawyers expressly requested the assistance of English- and French-speaking interpreters.

The Trapani judge also announced that on 3 October 2023 he had received the legal reasoning (motivazioni) behind the Court of Cassation’s ruling of 6 July 2023 (decision No. 40077/2023). He stated that the Court of Cassation provided an indication and some criteria to clarify the territorial competence of the three positions that had initially remained uncertain (see report from 14 July 2023). Such positions involved the uncertainty as to which court had territorial competence in relation to one specific preliminary charge against a defendant, and two administrative offences against the entities MSF and Vroon Offshore Services. On this point, the judge asked all defense lawyers if they had any comments. Defense counsel for Vroon Offshore Services asked the judge a time to comment on this, which was granted.

The next preliminary hearing is scheduled to take place on 13 October 2023. In that hearing, the Iuventa defendants will have the opportunity to deliver their statements (dichiarazioni spontanee).

The preliminary hearing on 13 October lasted approximately four hours.

The hearing began late due to technical issues with the portable individual equipment for simultaneous translation that had been purchased by the Court to guarantee Iuventa defendants’ rights to adequate interpretation (see report from 14 April 2023). When it became clear that the Court could not resolve these issues, the judge ordered consecutive interpretation (German/Italian) be carried out instead by the two interpreters present in the courtroom.

During the hearing, Iuventa defendants had the chance for the first time in the preliminary hearing stage of the proceedings to deliver statements responding to the charges against them by presenting their recollection of the rescue operations and events implicated in the indictment. Their statements also included observations of their experience in the investigation and preliminary proceedings to date. The two Iuventa defendants present in the courtroom, Sascha Girke and Dariush Beigui, delivered their statements (dichiarazioni spontanee) orally, with consecutive interpretation. Meanwhile, a statement by Iuventa defendant Kathrin Schmidt was submitted in writing, to be translated into Italian by the Court’s translator.  

Iuventa defendant Sascha Girke began by introducing himself as a professional paramedic from Germany and detailed his motivation to participate as a volunteer in civil sea rescue missions in the Mediterranean Sea. He emphasized that he had never received any payment to carry out such missions, only reimbursement of expenses for food and accommodation. At this point, the judge interrupted Girke’s statement to introduce and formally appoint an English-Italian interpreter, patched into the courtroom via an online connection, to fulfil functions related to the translation of wiretapped communications from MSF’s rescue ship Vos Prudence discussed in the previous hearing (see report from 6 October 2023). Before Girke resumed, two of three members of the prosecution team present in the courtroom, including the lead prosecutor, got up and left the room. They did not return for the duration of the hearing.

When the judge allowed Girke to resume his statement, he described his role and participation in several missions of the rescue ship Iuventa. He specifically recollected the mission of 2–12 September 2016, in which he had served as mission leader. He provided a detailed recounting of the sea rescue operations carried out on 10 September 2016, which, according to the prosecution, was one of the alleged incidents of collusion with Libyan traffickers to facilitate the unauthorized entry of foreigners to Italy. Girke highlighted that all rescue operations on this day had been coordinated by the Italian MRCC in Rome and carried out in collaboration with other NGO-operated rescue ships, as well as an Irish Navy patrol vessel, a Spanish Airforce plane and an Italian Navy helicopter. Girke noted that the accusations made by the prosecution were based only on the testimony of three security service personnel who were aboard one of the other NGO rescue ships. Given the number of actors involved, as well as the hectic pace and long duration of the multiple, coordinated rescue operations carried out on the day, Girke questioned the quality of the prosecution’s investigation for its failure to verify or corroborate the incriminating testimonies of the security personnel by gathering all available materials by the other actors involved, which he considers to be of critical exculpatory value.

Girke stated: “It is completely incomprehensible to me that the statements by the three authorities that were present on the scene (two military units in the air and one military unit in immediate proximity to the Iuventa during the period in question) have not been used to verify the testimonies of the [security] personnel. Indeed, these statements are not even part of the investigation files. After seven years.”

After Girke concluded his statement, Iuventa defendant Dariush Beigui was given the floor to deliver his statement. He too began by briefly introducing himself, as a German inland waterway skipper from Hamburg, and also described his motivation for joining civil sea rescue missions in the Mediterranean Sea. He noted that he boarded the Iuventa for the first time in 2016 and, since then, has participated in numerous rescue missions at sea. He also emphasized that he has never received money for such work, only meals during missions.

In his statement, Beigui provided a detailed account of the sea rescue operations carried out on 18 June 2017, when he was captain of the Iuventa, which included two alleged incidents of collusion with Libyan smugglers listed in the indictment. Beigui’s statement refuted the prosecution’s version of events, citing not only his own recollection of events, but also additional analysis of the incident conducted by Forensic Architecture (FA), based on Iuventa’s full archival material of the incident (including photographs, videos, and all recorded communications with the Italian MRCC and other vessels present in the area), as well as accounts of journalists who had been on board other NGO rescue ships on scene. The FA analysis, available online, confirms the version of facts presented by the Iuventa defendants and concludes that there is no evidence of collusion between the Iuventa crew and the alleged smugglers. FA’s reconstruction of events highlights that the accusations made by the prosecution are based on decontextualized factual elements that have been embedded in a narrative completely at odds with the sequence of events that emerged from the material evidence. Iuventa’s defense considers the FA reconstruction to be crucial exculpatory evidence.

In the last part, Beigui criticized the proceedings before the Trapani Court for failures that he sees as undermining his right to defense and the presumption of innocence. In particular, he reiterated the fact that the entire case file (nearly 30,000 pages) was never translated into his native language (German), but only a 600-page summary. He also reiterated that he would have liked to exercise his right to voluntarily submit to questioning in order to have a chance to give his side of the story, but on three occasions, the court did not assign him a sufficiently qualified interpreter to complete the task. He said: “I don’t think a judge should give you the feeling that he has already decided against you just because he has read the indictment.” The judge interrupted Beigui in the middle of his statement to stress that the Court had not prevented his questioning, despite some problems with the prosecutor’s office failing to find a qualified translator. The judge also told the defendant that he may or may not agree with the decisions (ordinanze) issued by the judge in the proceedings to date, but stressed that all of these decisions (ordinanze) have provided legal reasoning and been translated into his native language.

The Iuventa defendants’ statements can be read in full here.

The next preliminary hearing is scheduled to take place on 27 October 2023.

The preliminary hearing on 3 November 2023 was the longest so far, lasting from 10:00 to 21:00. In the early afternoon, two of three members of the prosecution team present in the courtroom, including the lead prosecutor, got up and left the room. They did not return for the duration of the hearing.

The hearing included the examination of STC’s team leader, conducted in English with consecutive interpretation into Italian, followed by the examination of MSF’s head of mission, conducted in Italian. 

Attending in the courtroom were three prosecutors, several defense lawyers, MSF’s legal director, three interpreters appointed by the Trapani judge (two for German-Italian and one for English-Italian interpretation), STC’s external consultant interpreter, and the two defendants to be examined from STC and MSF. No lawyer was present 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. Two Iuventa defendants, Sascha Girke and Dariush Beigui were present, but only entered the courtroom for the examination of the STC defendant, as both understand English. They agreed to remain outside the courtroom for the examination of MSF’s defendant to avoid the need to provide them with interpretation into German. As in other hearings, the option for simultaneous interpretation was not provided, only consecutive. Hence, providing interpretation into German for the Iuventa defendants would have disrupted the flow of questioning for the MSF defendant and increased the overall hearing length. After confirming this arrangement, the judge discharged the two German-Italian interpreters.

The examination of STC’s team leader started with questions from his defense lawyer. From the very beginning of the examination – and throughout – it was evident that the judge-appointed interpreter was unable to perform the task required. The interpreter lacked necessary technical vocabulary and frequently failed to finish translating, sometimes leaving out entire sentences. She often failed to translate substantive content correctly. It was only due to STC’s external consultant, brought to the preliminary hearing by STC’s defense lawyer, that the examination could proceed. For the entire examination, the external consultant re-interpreted all questions and answers to ensure that STC’s defendant both understood the full content of the questions and effectively communicated his answers.

With regard to content, STC’s team leader answered questions posed by his defense counsel about his educational and professional background, and in particular his work as a humanitarian professional with STC from February 2016 to February 2018. He provided detailed information regarding the STC SAR missions and operations in which he had participated. He stated that he had received a monthly salary from STC Sweden, with whom he had a contract, and clarified that so-called “bonuses for rescues at sea” (bonus salvataggi) were never included in his salary. He said he was shocked that such allegations were made. He then reconstructed in detail the key elements of the SAR operations that the prosecution alleges constitute incidents of facilitating the unauthorized entry of foreign nationals to Italy. He stated that all rescue activities had taken place under the direction of, and in full transparency and communication with, the Italian MRCC.

After the defense lawyer finished her questions, the prosecution asked for information about a key prosecution witness, a member of the security service aboard STC’s rescue ship Vos Hestia, who had given an interview in an Italian newspaper in 2019 in which he cited the involvement of well-known Italian politicians in the complaints made by the security service personnel against the SAR NGOs, which then triggered the criminal investigations and the proceedings in Trapani. The prosecution wanted to know the names of the politicians referenced, but STC’s defendant said he did not remember them and referred to the fact that the names could be found in the published article. The prosecution also asked whether STC’s defendant knew the Iuventa defendants Sascha Girke and Dariush Beigui, whether he had seen them on the day of the alleged incidents, and questions regarding a possible exchange of texts in the so-called “NGOs WhatsApp group.”

The examination of MSF’s head of mission began after the lunch break. In response to questions posed by his defense counsel, he, too, introduced himself and his academic background and career path as a professional humanitarian, working with MSF since 2006. He said he had worked in different places around the world, initially as a pharmacist, then as a project coordinator and field coordinator, including in Malawi, Liberia, Chad, Sudan, Kenya, and across the Middle East. He said he had started working on migration in Europe in 2015, first in Greece and then in Italy. Starting in March 2016, he had been in charge of MSF Belgium’s projects in Italy, including SAR missions, which had been carried out first with the vessel Bourbon Argos and then in 2017 with the Vos Prudence.

He then reconstructed in detail aspects of the March 2017 sea rescue operation that the prosecution alleges constitute incidents of collusion with Libyan traffickers to facilitate the unauthorized entry of foreign nationals to Italy. He explained that MSF had adopted standard operating procedures (“SOPs”) to be followed during SAR operations, which aimed to ensure the quality and effectiveness of rescue operations and were to be applied by the entire crew. He stated that these procedures were always being updated based on discussions with Italian authorities, such as the Italian Coast Guard, as well as their search and rescue experiences. MSF’s head of mission strongly denied the prosecutor’s accusations that they had rescued migrants through an “agreed upon delivery” (consegna concordata) arrangement, and stated that they had never been in contact with smugglers/traffickers (scafisti), nor with others arranging departures from Libya.

Following the questions by MSF’s defense lawyer, the prosecutor asked a few general questions. He asked how large SAR zones 1 and 2 are and how they are defined or can be identified. He asked how the vessel Vos Prudence moved between and through these different zones. He also asked whether Vos Prudence was homologated (omologata), meaning officially approved and with the necessary certifications, to accommodate hundreds of people on board. Finally, he asked whether they had kept the Italian MRCC informed about the route of the Vos Prudence, and the activities and operations of the crew. MSF’s defendant answered the general questions about the SAR zones, confirmed that they had all necessary certifications for their operations, and that they had kept the IMRCC constantly informed of their whereabouts and activities.

Throughout the examinations of both defendants, the judge asked many questions. Sometimes he sought to clarify passages or facts described by the defendants, other times he asked about additional facts and elements concerning the sea rescue operations being discussed. Overall, the judge asked far more questions, and of a more specific nature, than the prosecution, including questions related to specific wiretapped audio communications and texts that occurred in the “NGOs WhatsApp group.” He also asked several questions about the situation of migrants in Libya. He asked whether, at the time of the rescue operations implicated in the indictment, the defendants knew about the awful abuses committed against migrants in Libya and if the migrants they had rescued on those missions had told them about this directly.

Before the end of the hearing, the Trapani judge also had it noted in the minutes that he had received a filing from Iuventa defense lawyer Nicola Canestrini, including attachments.

The next preliminary hearing is scheduled to take place on 24 November 2023.

Due to unforeseen circumstances, no observer was present at the preliminary hearing that took place in Trapani on 24 November 2023.

The next preliminary hearings are scheduled to take place on 14, 15, 16 and 18 December 2023.

On 14 December 2023, the judge announced the postponement of all four hearings previously scheduled for 14, 15, 16 and 18 December. The hearing lasted approximately one and a half hours, during which the parties agreed on dates for hearings in January and February 2024. 

In addition to the prosecution team, defense lawyers, and two interpreters, 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 (see report from 25 February 2023). No defendants were physically present in the courtroom. 

As there was no need for interpretation due to the lack of defendants present, the judge appointed the interpreters to instead translate the transcripts he had requested in the previous hearing of communications between the Italian Maritime Rescue Coordination Center (IMRCC) and the ship Aquarius during the March 2017 search and rescue incident under examination, as well as the transcripts of communications between the IMRCC and all ships involved in the area during the September 2016 incident under examination.  

In the previous hearing, the judge had granted the prosecution’s request to have their four main witnesses examined. All four witnesses were private security officers employed by the shipping company Vroon, which owned the search and rescue ship Vos Prudence chartered by MSF at the time of the incidents in the indictment. During the 14 December hearing, however, the judge struck two of the four witnesses from the list, explaining that after having read the statements they gave during the investigative phase, he had decided that their examination was not relevant for his determination of whether to send the case to trial. After all parties discussed the availability of the defendants to participate in the hearings in person, the judge fixed the dates for the examination of the two remaining witnesses for the prosecution for 9 and 10 February 2024. 

The judge also reserved the possibility to hold hearings on 12, 19 and 26 January, should other relevant matters be ready to examine on those dates. He announced that he had asked the port authority to share the tracks of all the ships involved in the events under examination. The port authority is currently retrieving this information and, as they believe the ships’ tracking was updated every 10 minutes, they think it would be impractical to present the data via paper printouts. They are currently exploring options for digitally presenting the material in court, hopefully in January 2024. In this context, one of the defense lawyers asked the judge in what capacity the port authority would be heard at the hearing, whether as a witness or as an “expert witness” (perito). The judge said he did not think he would assign an expert witness, but he had not yet decided. Either way, he clarified that all parties would have the opportunity to ask questions to the port authority and possibly choose some freeze-frames to keep on record, to “crystallize” the relevant interactions between the vessels. 

The next preliminary hearing is scheduled to take place on 12 January 2024. 

The preliminary hearing on 12 January 2024 lasted approximately one and a half hours.  

Defense lawyers as well as three lawyers for the prosecution were present in the courtroom. No defendants were in attendance and there was also no lawyer 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 (see report from 25 February 2023). 

The hearing began with the judge announcing that requested evidence had been received from the Italian MRCC and Coast Guard and added to the case file. From the IMRCC, this included the phone communications requested between the IMRCC and the ship Aquarius during the March 2017 search and rescue incident under examination, as well as transcripts of all communications recorded between the IMRCC and the ships present on scene during the 10 September 2016 and 18 June 2017 search and rescue incidents under examination. From the Coast Guard, the information received and added to the case file included the requested tracking positions of all ships present on scene during the relevant 10 September 2016 and 18 June 2017 incidents.  

After this announcement by the judge, the lawyer for MSF requested additional position tracking data and communications transcripts be sent by the IMRCC and Coast Guard for all ships on site during the 25-26 March 2017 search and rescue events under examination, including the vessels of several sea rescue organizations (Sea Watch, Sea Eye and Aquarius) as well as all military vessels, including Libyan assets, present. The prosecution objected to the request, but the Judge approved it and ordered the data’s acquisition.  

As the tracking data of ships’ positions received comprised separate maps only showing the positions for a single ship at a time, the Judge also requested the preparation, where possible, of combined maps that would include the positions of all ships present during each of the search and rescue events under examination on 10 September 2016; 18 June 2017; 22-23 March 2017; and 25-26 March 2017. He considered this necessary to get a comprehensive overview of the events. 

Next, the conversation turned to the two witnesses for the prosecution scheduled to be examined on 9 and 10 February (see report from 14 December). The prosecution read out formal notes from the Judicial Police (Polizia Giudiziaria) stating that one of the witnesses, contacted by telephone, reported that she would be working onboard a ship during the scheduled hearing dates and would only be able to attend in person starting in March 2024. The Prosecution also reported that the Judicial Police had not been able to make telephone contact with the other witness to notify him of the hearing. Lastly, the prosecution reported that the personnel files for all four of its main witnesses had been added to the case file in digital form. 

Citing the length of the preliminary hearings to date, which he noted were the longest in the history of the Court of Trapani, the judge then sought agreement from all parties to carry out the first witness examination online via Microsoft Teams. If all parties did not agree to this, the judge noted he would retract his order granting the examination of the witness, as it would mean further delaying the end of the preliminary hearing phase. In light of these conditions, all parties agreed to hold the examination via Teams video link. The judge also ordered the prosecution to continue its efforts to summon the second witness for examination with whom contact had so far not been made. 

As the last order of business, the judge confirmed the dates for the next hearings: 26 January; 9-10 February (for the examination of the two witnesses for the prosecution); and 28 and 29 February as well as 1 and 2 March 2024 (for the closing remarks of all parties). Two additional dates, 17 and 24 February 2024, were also provisionally reserved for interim hearings, should the need arise. The judge also stated that he might call a hearing between 26 January and 9 February, in case it would be necessary for adding the additional documentation requested from the Italian MRCC and Coast Guard to the case file.

The next preliminary hearing is scheduled to take place on 26 January 2024. 

The preliminary hearing on 26 January 2024 lasted approximately one and a half hours.

Defense lawyers as well as three lawyers for the prosecution were present in the courtroom. No defendants were in attendance and there was also no lawyer 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 (see report from 25 February 2023).

The hearing began with a discussion of the upcoming hearing dates. Noting that several defense lawyers would be participating in a country-wide lawyers’ strike scheduled for 9 February 2024, the judge announced that the hearing scheduled for 9 February would remain scheduled, but on the day he would simply postpone to the following day, 10 February.

It was agreed that the planned examination of the two witnesses for the prosecution would take place on Saturday, 10 February, with the exceptional possibility to continue on Sunday, 11 February, if necessary, to conclude the examinations without further delay. It was also agreed that the requested examination of the captain (employed by the shipping company Vroon) of the Vos Hestia, the SAR vessel chartered by Save the Children, could also take place during the 10 February hearing, time permitting, but otherwise would occur, as per the lawyers’ request to concentrate the hearings, in a newly scheduled hearing on Monday, 12 February.

Next, the judge addressed the issue of transcripts received from the Coast Guard of communications between the Italian MRCC and the search and rescue ship Aquarius in relation to the March 2017 SAR incident under examination, as well as communications between the IMRCC and all ships involved in the area during the September 2016 SAR incident under examination. While the appointed experts (see report from 14 December 2023) had submitted the translated transcript files to the court, the judge noted that differences in the indexing of the reports made it difficult to understand which search and rescue incidents they pertained to and to match them to the corresponding expert reports from the Coast Guard with the tracking positions of the ships. Therefore, the judge ordered the experts to adjust their indexing system to correspond with that of the Coast Guard documents. When the judge asked the defense lawyers if they would like to question the experts regarding their reports, the lawyers reserved the right to make such a request after having the chance to review the documentation with the revised indexing.  

The judge also announced that the additional documentation requested from the Coast Guard and Italian MRCC during the 12 January 2024 hearing had not yet arrived. This information includes additional position tracking data and communications transcripts for all ships on site during the 25-26 March 2017 search and rescue events under examination, including the vessels of several sea rescue organizations (Sea Watch, Sea Eye and Aquarius) as well as all military vessels, including Libyan assets, present.   

The judge also reported updates relating to the summons of the two witnesses for the prosecution scheduled to be examined during the 9 and 10 February hearings. Regarding the witness previously contacted by the Judicial Police (Polizia Giudiziaria) who reported that she would be working onboard a ship during the relevant dates, the judge noted that the court had also received an email from her affirming the receipt of the summons and requesting that her examination be delayed due to her work schedule. Noting that work requirements do not constitute a legitimate impediment, the judge confirmed her summons for 9 and 10 February, with the provision that she could appear online via Microsoft Teams, either on her own device or by reporting to the nearest local police station and connecting there.

Regarding the second witness, the judge reported that he had still not been successfully contacted. Hence, the judge ordered that efforts to reach him be continued and scheduled an additional hearing on 2 February 2024 to acquire updates regarding the summons and status of both witnesses. The judge clarified that if either of the witnesses failed to attend the hearings as summoned, he would then arrange for coercive accompaniment to deliver them to court.

The next preliminary hearing is scheduled to take place on 2 February 2024.

The preliminary hearing on 2 February 2024 lasted a little over one hour.

Defense lawyers as well as two lawyers for the prosecution were present. No defendants were in attendance and there was also no lawyer 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 (see report from 25 February 2023).

The judge announced that both of the two witnesses summoned for examination had been successfully contacted. The witness that the court had not been able to reach as of the last hearing (see report from 26 January 2024) requested that he be allowed to participate remotely via Microsoft Teams. He claimed that travel to Trapani to attend the hearing in person would exacerbate his health problems and potentially pose a risk to his physical integrity. While permission for remote participation had been granted to the first witness, who previously informed the court that she would be working aboard a ship on the dates for which she had been summoned (see report from 12 January 2024), defense counsel did not give their consent for the second witness to also appear remotely. Hence, the judge confirmed the summons for his in-person attendance, noting that should the witness fail to appear he would be physically delivered to the court at a future date.  

The judge then informed all parties, on the record, that on 30 January 2024, he authorized Iuventa defense lawyer Canestrini to acquire the criminal record certificates of the two summoned witnesses.

Next, the judge addressed an incomplete expert assignment ordered in the previous hearing (see report from 26 January 2024). He noted that the experts who issued the reports connected to the transcripts of communications between the Italian MRCC and ships on scene for several search and rescue incidents under examination had failed to adjust the indexing of their reports needed to understand which transcripts corresponded to which dates and times. Visibly frustrated, the judge spent a few minutes attempting to sort through and adjust the indexing himself. He quickly realized, however, that it would take too much time. Lamenting to the clerk that his tone could not be conveyed in the written transcript, the judge ordered that the experts complete the assigned task within six days, meaning by 8 February 2024, or they would not receive full compensation for their work.  

With respect to the upcoming hearing dates, the judge asked the defense lawyers to confirm their attendance for the 9 February hearing in light of the nation-wide lawyers’ strike scheduled for that day. As several defense lawyers confirmed their participation in the strike, the judge announced that the hearing on 9 February would only convene briefly to acknowledge the strike and announce the hearing’s postponement to the following day. The judge then confirmed the schedule as set in the previous hearing: On 10 February, the two witnesses for the prosecution will be examined. If their examinations finish in time, then the former Captain of the Vos Hestia will also be examined on the same day. If the examinations of the two witnesses cannot be completed on 10 February, then the hearing will be extraordinarily adjourned to Sunday, 11 February. If time constraints do not allow the former Captain of the Vos Hestia to be examined on 10 February, then his interrogation will occur on Monday, 12 February.  

The next preliminary hearing is scheduled to take place on 10 February 2024.