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.