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.