Italy - Tribunal of Trapani - Office of the Judge for Preliminary Investigations (Piero Grillo)

Facts:

On the 8th of July 2018, the Italian tugboat Vos Thalassa rescued and brought on board, approximately 65 migrants sighted in the Libyan Search and Rescue (SAR) area while it was engaged in support activities to the Libyan oil rig Al Jurf – Oilfield. Following the absence of a response by the Italian Maritime Rescue Coordination Centre (MRCC) and commands made by the Libyan coast guard, the Vos Thalassa reversed course to the south.

The Captain’s decision to reverse the vessel’s course to Libya caused a state of disquiet among the passengers on board. After realising that there was a real possibility of return to Libya thanks to the GPS of a mobile phone in possession of a migrant on board, they revolted against the crew. According to the evidence gathered, there were mostly two migrants within the group (the defendants of the present case), one from Sudan and the other from Ghana, who managed to take control of the ongoing situation spurring the others into action and adopting violent gestures against the cabin staff.  Following this, the Captain reversed the course of the vessel back to Italy, in order to avoid any deterioration of the dangerous situation– given that the crew was outnumbered by the 65 rescued persons. After the change of course the Vos Thalassa waited for the arrival of the Italian Military Navy Ship Diciotti in order to transfer the migrants.

The two defendants were accused of violent and intimidating actions against the crew of the Vos Thalassa.

Decision & reasoning:

The Tribunal of Trapani had to determine whether the actions adopted by the Sudanese and the Ghanaian defendants against the crew were in violation of the provisions of the penal code or whether there was a situation of duress that would justify self-defence, since the decision to change course to the Libyan Coast would  result in a violation of the rights of the migrants on board the vessel.

In determining whether a legitimate defence could be invoked in the present case, the judge for the preliminary rulings found it necessary to investigate its defining elements such as the need of the existence of a self or somebody else’s right to defend; the injustice of the received offence and the proportionality of the defence against the aggressor.

With regard to rescue at sea, Italy is legally bound by the 1979 Hamburg Convention, which provides that the State that conducts a rescue operation – even if not in the SAR zone of its competence – is responsible for the landfall and the disembarkation of the individuals in a safe harbour (the so called place of safety, POS). According to the ECtHR settled case law, the security of the latter refers principally to the physical security of the individuals involved but also, to the effective possibility to request asylum.That being the case, the central question of the case is to determine if at the time of the facts Libya could be considered a POS. Relying on the information from UNHCR collected during the investigation, the Court noted that Libya – at that time – was not a safe country given the volatile political and social situation which destabilized and endangered the daily life of Libyan citizens but especially for asylum seekers, refugees and migrants.

It was pointed out how the continuous guerrilla wars between rival factions and the inability to respect the international agreement with the UNin the area, led to Libya becoming a departure place for many migrants wishing to travel to Europe. If for Libyan citizens the situation is of evident danger and uncertainty, it is even more so for asylum seekers, refugees and migrants who transit through the Country, especially since Libya is not a signatory of the 1951 Geneva Convention and it does  not have domestic asylum legislation. Domestic immigration law  heavily punishes irregular entry, residence and exit from the State with undefined prison sentences and a fine of 700$. Spread all around the country, detention centres have become theatre to continuous and systematic human rights violations of the detainees; detention in fact appears to be entirely arbitrary both in its substance and with regards to its procedural aspect. It seems clear that Libya could not be considered as a place of disembarkation for migrants. According to the decision of the Tribunal, an eventual push back to the Libyan territory, an unsafe harbour, would result in a violation of the non-refoulement customary law.

In the context of the defendants’ self-defence, the Tribunal of Trapani recognized the existence of the right to be conducted in a POS where they will not be subject to treatment against art. 2 and art. 3 ECHR  which the passengers of the Vos Thalassa tried to defend with their actions against the crew. Pursuant to art. 52 of the penal code, self-defence can only be invoked if the danger has not been created voluntarily by the actor. In this regard the judge confirmed how, both for the Sudanese defendant and the Ghanaian one, the danger was not created on purpose. Even in the case of the latter, whose Country of origin is safe, the act of self-defence is to be considered in the context of defence on behalf of other migrants on board, who were coming from unsafe third Countries such as Sudan.

Lastly, the Tribunal acknowledged the proportionality of the defendants’ acts, since the right to life and not to be subject to inhuman or degrading treatments shall not be limited by the right of the crew. In the eyes of the judge, if such defensive actions had not been taken, the migrants would have been surely brought back to Libya; the naturally necessity of those actions has to be acknowledged since the defendants did not have the possibility to escape the vessel and its destination.

In conclusion the Tribunal found the existence of the conditions under art. 52 criminal code and both defendants were acquitted on the grounds of self-defence. The charge of smuggling was also dropped since there was no evidence that the two defendants were smugglers or traffickers but passengers as anyone else on the Vos Thalassa. For this reason it is clear how the entrance in the Italian territory of the foreigners on board derived solely from an attempt to avoid a push back to Libya.

Outcome:

Acquittal of both defendants.

Observations/comments:

This summary was written by Maria Giulia Marinari, student at the University of Turin.

Other sources:

Domestic Case Law Cited

Cass. Sec. 1, Sentence n. 56330 13/09/2017

Cass. Sec. 6 Sent. n. 31288 28/03/2018

Const. Sent. n. 295 1984

Cass. Sec. 1 sent. n. 48291 21/06/2018

Other Member States' Case Law

A and Others v. Secretary of State for the Home Department, 8th December 2015, House of Lords

International Tribunals

Prosecutor v. Anto Furundzija, 10th December 1998, International Criminal Tribunal for the former Yugoslavia

Prison Case Miguel Castro v. Perù, 25th November 2006, Interamerican Court of Human Rights

Public Committee against torture in Israel and others v. State of Israel, Supreme Court of Israel, 6th September 1999