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.