The preliminary hearing on 29 September lasted approximately three hours, not including a 2-hour recess when the judge entered chambers to deliberate.

At the beginning of the hearing, the judge ruled rejecting the Iuventa lawyer’s request in the previous hearing to suspend the preliminary proceedings in Trapani pending the ruling of the Court of Justice of the European Union (CJEU) on relevant questions of il/legitimacy related to the “facilitation” offense (see report from 8 September 2023). The CJEU referral was made in relation to a different case before the Court of Bologna, but deals with the same substantive legal questions posed by Iuventa defense counsel in Trapani on 12 May 2023, and hence, the ruling may impact the case. Although the judge declined to pause the proceedings in Trapani, the Iuventa defense’s request and the Bologna judge’s decision were placed on record.

After confirming that the Court of Cassation (Corte di Cassazione) had still yet to provide the legal reasoning (motivazioni) behind its ruling of 6 July 2023 regarding the “territorial competence” (competenza territoriale) of the Court of Trapani (see reports from 15 March 2023 and 14 July 2023), the judge asked all parties to submit any further issues to be dealt with in the preliminary hearing phase.

Defense counsel for Save the Children (STC) requested to hear two expert witnesses, who had been appointed during the investigation phase as part of a team of experts to listen to and make transcripts in Italian of wiretapped communication authorized by the preliminary investigation judge (GIP) from STC’s rescue ship, Vos Hestia. As the experts were only appointed shortly before the investigation phase closed, the reports were not ready at the time of closing, and as a result, defense counsel was not able to question the experts during the standard period for doing so. Hence, defense counsel insisted on the opportunity to question the experts on their transcription methodology as well as the English-Italian translation.

Specifically, STC defense noted the importance of questioning the misrepresentation of the literal English meaning of a key word identified by STC’s external expert consultant as having been translated into Italian in a manner that potentially prejudiced STC defendants. The lawyer singled out one excerpt of the transcription of the wiretapped communications where the English words “drive man” spoken by one of the defendants, had been translated as “scafista” – an Italian term colloquially used for a boat driver that already connotes criminal activity, often used in conjunction with the term “trafficanti” (traffickers) – rather than using the more literal Italian term for a driver, “conducente.” Iuventa defense counsel, Nicola Canestrini, joined in this request.

Defense counsel for MSF requested to examine the legal representative of the company that conducted the wiretapping, as well as additional information on the time parameters a wiretap conducted on 26 March 2017. The lawyer also asked the judge to compel the Italian Maritime Rescue Coordination Center (MRCC) to produce its records of all calls (“interlocuzioni telefoniche”) made on 25 and 26 March 2017 with the vessels present in the SAR locations related to MSF’s rescue ship Vos Prudence.

Defense counsel for Iuventa asked the judge to compel the MRCC to produce its records of all communications (“comunicazioni”) regarding events that occurred on 10 September 2016 and 18 June 2017 with the vessels present in the SAR locations in which the Iuventa rescue ship had been involved. The request was made as such documentation is believed to include exculpatory evidence in relation to a number of the alleged charges, namely proof of coordination and cooperation with Italian authorities. Iuventa’s lawyer also requested Lorenzo Pezzani be heard and examined as an expert witness in relation to his organization’s expert forensic analysis of the Iuventa crew’s rescue operations, which claims to disprove the accusations against them. Iuventa defense counsel also announced that some of the Iuventa defendants would like to make statements to be submitted into the record.

The lawyers for MSF and STC also asked the judge that some of their defendants be examined on specific dates at the Court of Trapani.

The prosecution agreed to the STC defense’s request to hear and question the expert witness on the methodology used during the listening to and transcribing into Italian of the wiretapped communications but opposed the request to hear and question the expert witness who carried out the English-Italian translation. As motivation, the prosecution expressed their opinion that the translation of words such as “drive man” to “scafisti” should have no bearing on the assessment of transcript’s accuracy, as they believe the terms mean the same thing. The prosecution also objected to: (i) MSF defense counsel’s request to examine the legal representative of the company that conducted the wiretapping referred to above; (ii) the acquisition of the conversations between the MRCC and the NGO search and rescue boats; and (iii) Iuventa defense’s request to hear Lorenzo Pezzani as an expert witness, citing their irrelevance. The lawyer for the State Legal Service of Palermo (Avvocatura dello Stato) – representing the Ministry of the Interior in its capacity as a civil party in the proceedings – joined the prosecution in its requests and conclusions.

After an approximately two-hour period of time to deliberate, the judge returned to deliver his decisions. He accepted the STC lawyer’s request to examine two expert witnesses responsible for listening and making transcriptions in Italian of the wiretapped communication, which he assigned to take place during the hearing on 6 October. However, he rejected the other requests for evidence submitted by the defense lawyers, citing provisions under Article 422 of the Code of Criminal Procedure (CPP), which states that evidence that may be gathered at the preliminary hearing must meet the requirement of being “clearly decisive” for the purpose of the pronouncement of a judgement of no case to proceed to trial. Specifically, he refused the request to obtain the communication between the Italian MRCC and the defendants for the maritime search and rescue operations cited in the charges, as he noted that both MSF and Iuventa lawyers had not previously submitted such requests directly to the Italian Coast Guard (Comando Generale delle Capitanerie di Porto) and that the lawyers still had the option to do so. He also rejected the Iuventa request to hear Lorenzo Pezzani as an expert witness, saying he had not been appointed as a defense expert consultant and that the evidence referred to in the previous filing relating to the forensic analysis in question had not been included in the records of the proceedings. In sum, as a motivation, he deemed these requests not to meet the “decisive” requirement for the purpose of Article 422 CPP.

Finally, the judge announced the calendar of preliminary hearings until the end of the year. He confirmed that the Iuventa defendants would be able to deliver their statements in the hearing on 13 October and he scheduled the exams of MSF and STC defendants on 27 October and 3 November, respectively.