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.