“Investigation into “deliveries by sea taxi” based on partial evidentiary context, uncertain data and distorted interpretations by investigating authorities.”

Judicial truth unmasks political instrumentality of smear campaigns against NGOs: the Court of Trapani ruling ascertains the absence of any crime, and sweeps away any hypothesis of collaboration between NGOs and traffickers, highlighting rather an investigation based on “incomplete material and “analyzed in only a partial perspective.”

After 7 years of criminalization of the Iuventa crew, it would have been enough for the Prosecution to verify the work of the Iuventa and gather the documents that were available since the beginning to find that everything was done under the coordination of the MRCC in Rome. Instead, as noted by the Court, police on “laconic drafts” of wiretaps and service reports that distorted the reality of the facts (and in particular that of undercover police officer Luca Bracco).

Textually, the judgment right from the preamble points out in fact that the investigating authorities “in such a partial evidentiary context (…) has sometimes focused attention and overemphasized aspects of limited demonstrative scope, without taking into account altogether all the elements available or in any case easily acquirable, and from totally uncertain data devoid of unambiguous meaning had developed assessments and reached conclusions presented as certain, arriving on some occasions at an interpretation of the facts that can no longer be considered consistent with what emerged at the outcome of the preliminary hearing.”

The ruling points out that essentially the investigating authorities merely relied on data emerging “from the laconic brochures of the I.M.R.C.C. Operations Center and the I.M.R.C.C.’s concise SAR sheets , without acquiring and adequately valuing additional elements, such as records of telephone communications between the I.M.R.C.C. and the naval assets involved in the various SAR events, as well as the positioning and tracking data of the ships that intervened or were present during the migrant rescue operations, so as to obtain additional and complete information that would allow for an overall view of the individual events and to verify the conduct of the protagonists of each event”; adds that the investigating authorities had provided “distorted interpretations of some events, presented by the prosecution with a diachronic succession altered from the real occurrence of the facts” due to not taking into account the different time zones!

No agreed delivery, no sea taxi, nor conduct aimed at procuring the illegal entry of migrants into Italy.

Instead, it is recognized that already on an objective and material level the direction of the conduct charged to the Iuventa should be “framed in the specific context of rescue operations. With particular reference to rescue operations, it should be noted how the obligation to rescue at sea is provided for by international customary law, numerous international conventions and domestic law.”

The judgment also acknowledges that the rescue operations were always ordered by I.M.R.C.C. and were carried out under the direction and constant coordination of I.M.R.C.C. as evidenced by telephone communications with the ship IUVENTA and other naval assets present in the area.

Finally, with respect to the presence of the operators of the iuventa in the scenarios where the alleged smugglers/traffickers were also operating, it is expressly stated that “the failure of the personnel of the IUVENTA ship to oppose the seizure of the dinghy’s engine by the “motor fishermen” should be framed in the context in which the aforementioned “motor fishermen” could have been armed and could have reacted with sudden maneuvers such as to endanger the stability of the dinghy, with the consequent risk that some migrants might have fallen or thrown themselves overboard, it being understood that there was, in any case, no legal obligation on the part of the IUVENTA ship’s personnel to prevent the “motor fishermen” from taking the engine. Thus, the failure of the IUVENTA ship’s personnel to oppose the seizure of the dinghy’s engine by the ‘motor fishermen’ is not only not suitable to serve as a symptomatic element of the contested agreed delivery of the rescued migrants (…), but is also not suitable to integrate an independent conduct of aiding and abetting illegal immigration.”

According to the ruling, “the evidentiary elements set forth depose, in terms of absolute clarity and completeness, for the inexistence of the crimes charged against the defendants,” and again, “having cleared the field of suspicions, on the basis of objective data, the sources of evidence do not lend themselves to alternative solutions and cannot be interpreted in a different way from that accepted above. Moreover, the evidentiary material acquired, even during the preliminary hearing, is insusceptible of completion and could not be further developed in the accusatory direction.”

Moreover, the court is at pains to add that “even if the evidentiary material had been suitable to integrate the objective element of the crimes, in the context of the dutiful rescue operations, carried out under the constant coordination of the I.M.R.C.C., there would have been a failure to demonstrate the existence of the psychological element of the offenses charged…also taking into account the circumstance that at the time of the rescue, the migrants are to be considered “shipwrecked” until they are disembarked in a safe place and that their status will be defined ashore only after they are handed over by the rescuers to the Authorities in charge of border controls.”

Similarly, the cause of justification under Article 51 of the Italian Criminal Code should have been considered. A fulfillment of the duty to rescue, which as the Gup innovatively noted referring to the measure taken by the Civil Court of Brindisi can be “abstractly declined, in an evolutionary perspective, also as the right to exercise rescue towards migrants in an obvious situation of danger, traveling on dilapidated, overloaded boats, unfit to safely travel long distances and reach European coasts, lacking competent guidance, sufficient fuel and safety devices.”

Finally, the Gup recognized that “escape from torture, arbitrary detention, sexual violence, mistreatment, sexual and labor exploitation, deprivation of basic human necessities (foodstuffs and medical care) is clearly indicative of the inevitability of evading a situation of present danger of serious harm to the person resulting from the stay in Libyan detention centers for migrant transits” is relevant to the existence of the state of necessity. “From this perspective, any conduct materially suitable to procure the entry into Italy of migrants without entry permits would in fact be necessitated, insofar as it is functional to defend the fundamental interests of the human person and to remove migrants in transit to Libya from the inhumane conditions experienced in the detention centers.”

We reiterate our great satisfaction with the result achieved, even more so with the important principles affirmed by the Court of Trapani that clarify once and for all the innocence of our defendants, but above all the necessity and duty of rescuing the people who die every day in the Mediterranean Sea.

Avv. Francesca Cancellaro
Avv. Alessandro Gamberini
Avv. Nicola Canestrini

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