EDAL - Italy - Tribunal of Ragusa, 16 April 2018, RG n. 1182/2018

Italy - Tribunal of Ragusa, 16 April 2018, RG n. 1182/2018

Country of Decision:	Italy
Country of applicant:	Unknown
Court name:	Tribunal of Ragusa
Date of decision:	16-04-2018
Citation:	RG n. 1182/2018

decreto_rigetto_sequestro_preventivo_tribunale_Ragusa_gip (1.19Mo)

Keywords:

Keywords
Inhuman or degrading treatment or punishment
Non-refoulement
Return

Headnote:

The rescuing actor is not only responsible for the search and rescue operations but should also consider the safety of disembarkation points in line with the principle of non-refoulement. The Open Arms ship conducted a reasonable assessment of the situation during the rescue operation, given that Libya could not be considered a country where the rescued migrants could be safely returned and Italy had already communicated an available place of safety.

it should be assessed whether the migrants – if rescued by the Libyan authorities - would have been taken back to a country where there are ongoing severe violations of human rights. In the case at issue, Libya has to be considered such a country. the rescuing actor is not only responsible for the SAR operations but also for the designation of a POS (place of safety) for the migrants to be disembarked at. the principle of non-refoulement had to be applied. the decision to communicate with the Italian authorities, which were the first interlocutor with the Open Arms during the entire operation, including during the disembarking phase, is considered reasonable.

Facts:

On 15 March, three boats with migrants from Libya were spotted in the Mediterranean Sea. The Italian authorities immediately established communication with the Open Arms and the Libyan Coast Guard, which both started heading towards the boats. The Libyan Coast Guard took over the control of the operations on one of the three, informing the Italian authorities, which, in turn, transmitted the message to the Open Arms and asked them to head towards one of the other two, the control of which hadn’t been taken by the Libyan authorities yet.

Once the Open Arms ship reached the boat, they started rescuing the passengers taking over the responsibility for the operations and declaring the impossibility to get in touch with the Libyan authorities. In the meantime, the Libyan authorities communicated that they were taking control of all three operations. Once all passengers were rescued, Open Arms started moving towards another boat, despite knowing that the operations were completely under the control of the Libyan Navy Coast Guard, which had asked them to keep a distance of 5 miles from the boat and to suspend the operations. Despite the attempts of the Libyan authorities to obstacle the rescue operations conducted by the Open Arms and to reaffirm their authority, the NGO managed to transfer all the passengers on their boat.

Subsequently, Open Arms requested Italy for instructions on how and where to proceed with the disembarking operation. The Italian authorities suggested the NGO to communicate with the Spanish authorities, as Spain was their flag state and the operations had not been conducted in Italian waters. Despite the intervention of the Spanish authorities and following several attempts to disembark in a close and secure port, the Open Arms continued sailing until they entered the Italian waters and were allowed to disembark in Pozzallo.

According to the applicants, the entrance and disembarking operation in Pozzallo represent a consequence of the illegal SAR activity conducted by the Open Arms.

Decision & reasoning:

The Court’s started examining the legitimacy of the decision of the Open Arms to intervene and replace Libya in the SAR operation by reference to the relevant international instruments. As signatory of the United Nations Convention on the Law of the Sea (UNCLOS) and of the SAR Convention, Libya is expected to be responsible for the coordination of the SAR operations in its territorial waters. The Open Arms, despite being aware that the Libyan Coast Guard had taken the control of the entire operation, deliberately decided to conduct an operation autonomously without coordinating with the Libyan naval authorities, nor complying with their orders.

Similarly, as signatory of the Code of Conduct and the agreement signed by the Italian Ministry of Interiors and the NGOs operating in the Mediterranean, Open Arms had agreed not to interfere with nor impede operations conducted in Libyan waters, except for circumstances of high risk and immediate danger. The situation at stake cannot be considered such a circumstance, since the potential danger for the migrants on board could have been warded off with the intervention of the Libyan authorities. The Court further noted that it should be assessed whether the migrants – if rescued by the Libyan authorities - would have been taken back to a country where there are ongoing severe violations of human rights. In the case at issue, Libya has to be considered such a country.

Furthermore, the rescuing actor is not only responsible for the SAR operations but also for the designation of a POS (place of safety) for the migrants to be disembarked at. Under the case’s circumstances, the principle of non-refoulement had to be applied. As far as we know, in Libya there’s no safe place of disembarkation. With regard to the refusal of Open Arms to get in touch with the Maltese authorities to ascertain whether it was possible to find a POS in Malta, the Court found that Malta cannot be considered a country where it is impossible to find a POS, despite not having ratified the amendments to the SAR convention. However, it was further highlighted that Malta has not ratified the recent amendments to the SAR and SOLAS Conventions and the Maltese authorities are likely to refuse responding and cooperating with other stakeholders during challenging SAR operations.

Moreover, the Italian Navy, which was involved in the operations since the very beginning, had declared their availability to offer a POS to the Open Arms, upon direct request by Spain, the Open Arms’ flag state. In that context, the decision to communicate with the Italian authorities, which were the first interlocutor with the Open Arms during the entire operation, including during the disembarking phase, is considered reasonable.