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.