In the cover image the ship Eleonore and the complainant lawyers Pellegrino (left) and Ferrari (right)

by Fabio Giuseppe Carlo Carisio for VT Italy

VERSIONE ORIGINALE IN ITALIANO

“In the present case, there is nothing to suggest that there is any agreement between rescue crews and traffickers. Pure conjecture is the accusatory thesis that the basis of the NGOs’ rescue action of would be their awareness to support the trafficking in human beings managed by African criminal organizations».

This is what the Judge of the Preliminary Investigations of the Court of Catania, Dr Luigi Barone, wrote, denying investigation despite the statement of opposition filed by the Milanese lawyers Giuseppe Pellegrino and Alberto Ferrari on behalf of the association Civitas.

Once again the scenario already seen in May 2019 occurs: in that case an NGO, the ship of which had been previously seized, was cleared of any wrongdoing by another judge of the same Court.

“There is no evidence of any contact between NGOs and smugglers”: with this reasoning another judge (Nunzio Sarpietro) had granted the request of the prosecutor Carmelo Zuccaro to quite the probe into commander Marc Reig Creus and head of mission Ana Isabel Montes Mier, in charge of the ship operated by the Spanish NGO ProActiva Open Arms. They were investigated for facilitation of illegal immigration because of the disembarkation of 218 migrants rescued off the coast of Libya in Pozzallo (Ragusa), in March 2018.

The sentence of the judge of Catania

The outcome of the last proceedings on 17 December 2021 is even more serious: the case had been filed indeed on the basis of first-person testimonies delivered by several victims of human trafficking. While justice is hesitating in collecting evidence of guilt and of agreements between rescue organizations and “slavers”, massive debarkation and exploitation of slaves continues unabated on Italian territory as well.

“Surely on the subject of trafficking there is a lot of ignorance. But sometimes it seems there is also little will to understand the extent of the problem. Why? Because it affects our consciences closely, because it is thorny, because it makes us ashamed. There are also people who, even knowing it, do not want to talk about it because they are at the end of the ‘supply chain of consumption’, as a user of the ‘services’ that are offered on the road or on the internet. Finally, there are people who do not want us to talk about it, as they are directly involved in the criminal organizations that gain huge profits from trafficking”.

With these words Pope Francis on 12 February 2018 addressed the participants in the Fourth World Day of Prayer, Reflection and Action against Trafficking in Persons.

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Four years have passed, the Directorate of Antimafia Investigation has published alarming dossiers on the role of Nigerian criminal organisations in the exploitation of human beings, but the wound is still far from being healed by a “political” approach of the Judiciary that refuses to acknowledge any correlation between NGOs and migrant traffickers even when witnessed by the victims themselves.

“The proceedings arise from seven reports filed by the association Civitas regarding seven search and rescue operations carried out by non governmental associations in 2019-20. Specifically, the complainant alleges that the NGOs Sea-Eye, Mission Life, Sos Méditerranée Italia Onlus and Open Arms, through the search and rescue operations of migrants carried out in the Mediterranean Sea between the Libyan and Italian coasts, would have put in place an activity of integrative support to transport carried out by the African criminal organizations, thus participating in the crime of trafficking in human beings provided for by art. 601 c.p”: Judge of the Preliminary Investigations of the Court of Catania states.

“The accusatory perspective would show the causally relevant NGOs’ role within the criminal purpose of African criminal organizations that would aim to transport hundreds of migrants enslaved on Italian territory in order to profit”: thus reads the introductory statement of the dismissal order we are publishing here in preview.

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Civitas is an association that originates from the defensive activity of two lawyers, who over a three-year period (2015-2018) have represented “some fifty asylum-seekers. The testimonies collected have shed a light on a vast organized criminal mechanism spread not only on African soil, but also on Italian territory: trafficking in human beings reduced to slavery”, as Mr Pellegrino and Mr Ferrari pointed out.

But where do the complaints come from? “Among the asylum-seekers (all males from Western Africa), only ten victims, following a long process of integration and growing awareness, have decided to file before the International Criminal Court (hereinafter ICC) an information related to human trafficking. They asked the Office of the Prosecutor (hereinafter OTP) to open a situation – i.e. an investigation – on four transit countries (Mali, Burkina Faso, Niger and Libya) and Italian Republic as country of destination”.

Once highlighted the heart of the matter, both attorneys monitored daily debarkations on the Governmental website from September 2019 until February 2020. In correspondence to the massive arrivals they investigated on open sources the NGOs involved in transport operations.

On 3 September 2019, the Prosecutor Office of Ragusa registered with the list of suspects the commander and head of mission of the ship Eleonore belonging to the German NGO Mission Lifeline. The ship had entered the port the day before carrying 104 migrants, after having declared a state of emergency, and forced the ban imposed by the Italian authorities. The Prosecutor of Ragusa opened an investigation to verify whether criminal violations occurred.

According to the Prosecution Office the charge would have been aiding and abetting illegal immigration. But according to Civitas’ attorneys the modus operandi is systemic, therefore not occasional, thus constituting the far more serious violation of human trafficking operated by African organisations. “We have reported to the Court the landing methods, and indicated as topics of investigation the interception of radio communications between the rescue NGOs and the traffickers on the Libyan shore via AlarmPhone or other medias”: Mr Pellegrino and Ferrari explain.

 

The Civitas Association’s lawyers Alberto Ferrari (left) and Giuseppe Pellegrino (right)

“Our Association does not have any information about the specific circumstances inherent to the arrival of ship Eleonore in the port of Pozzallo on 2 September 2019, apart from those traceable on open sources”: that can be read in a information deed delivered to the Prosecution Office of Catania, such as in the other cases regarding other NGOs.

“Our Association is not aware of any of the following elements, which may in any case be ascertained and reconstructed by the Prosecutor: the purpose of navigation at sea; the justification of navigation to the port authorities at departure and arrival in ports; the concrete modalities of the research activity of vessels at sea (i.e. aerial observation rather than radio or telephone contact with Libyan traffickers); contacts with warships, governmental search and rescue ships, as well as with military commands; contacts with Italian National Agency for Civil Aviation (ENAC), if applicable, for any activities of air patrol”: what il declared in Civitas’ information deeds.

“The modest contribution to the investigation into the facts that the association Civitas can make here is limited, in fact, to the statements released by the victims: individually by the ten victims who denounced the trafficking to the OTP (members protected within the Association), and by thirty-three other witnesses who have personally gone through the experience of trafficking during their journey to Italy too; and collectively by many of them during ten collective interviews when they compared the experiences individually lived”.

“The testimony released by all the people heard concerns two routes, the Malian and the Nigerian one, that connect the countries of West Africa to Libya. Little awareness has been expressed of the way in which patrol and recovery activities in the Mediterranean are organised and coordinated with the Libyan traffickers who organise the departure of vessels from the coast, as well as the role of local military personnel in the overall context of trafficking”.

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“A fact has been consistently reported: almost all the rafts launched into the sea in the middle of the night (departure time was always around midnight-two in the morning) were handed in to a couple of migrants (not traffickers belonging to Libyan criminal organizations, in slang called Asma Boys) among the hundred people embarked. One had the responsibility of the rudder and the other of the compass and the satellite phone, on which the emergency phone number was already saved: a direct channel, therefore, links Libyan traffickers and volunteers of non-governmental organizations”.

According to Civitas’ legal representatives opinion there are substantial elements which the Judiciary could investigate in depth, comparing rescue dates with alarms, interceptions etc. But their “good will” came up against a huge first obstacle: the criminal offence qualification as a less serious misdemeanour.

The Court of Catania ruled justifying the downgrading qualification operated by the Prosecutor’s Office as follows: “The Prosecutor has registered the notitia criminis as facilitating illegal immigration. In this sense, contrary to what the opposing party (the Association) affirms, the choice of qualification made by the Prosecutor, far from representing a failure to prosecute, is instead an expression of a power expressly provided for by the Code of criminal procedure”.

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“If every individual is entitled to denounce facts of which he is aware, it is then up to the Prosecutor – precisely in his capacity to promote criminal action – to qualify the facts in the way he considers proper, taking into account the elements arisen during the investigation phase”.

Whatever these elements were is not clear yet but, according to the Court, “Having said that, the Judge fully agrees with the legal classification given by the Prosecutor to the alleged offences reported; nevertheless, these appear to be lacking of an evidentiary basis”.

After the legal assessment, however, the Judge expresses an ethical reasoning: “In evaluating the constant rescue action at sea by NGOs, the legitimacy and indeed the duty to do so must not be neglected, as well as the many national and international rules duly recalled by the Prosecutor in its request. It is sufficient, in this regard, to note that  NGOs’ activity falls within the ‘SAR system’, in which legitimately operate a multiplicity of actors – military and not – including non-governmental organizations”.

The judge concludes: “leaving aside the above considerations regarding the absence of a mental element, it must also be observed that  NGOs’ conduct, far from being the expression of an alleged pactum sceleris between them and traffickers, is nothing more than the fulfilment of a duty in accordance with the above mentioned norms”.

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Mr Pellegrino comments as follows: “The order delivered by the Court of Catania is not limited to an evaluation of the truth or falsehood of a given fact, or on the need to apply a specific sanction to a given conduct. In this case the Judge created a rule, and stated that it is perfectly lawful sailing in international waters to collect shipwrecked people embarked by criminal organizations on unfit boats and transfer them to Italian territory. Such judicial approach to the matter violates the social contract and puts the citizen in conditions of substantial anarchy, because the rule that should guide him is not pronounced once and for all by Parliament, but from time to time by the individual Judge after that facts occurred”.

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Mr Ferrari adds: “This order of the Court of Catania violates art. 112 of Italian Constitution, ad it clears the Prosecutor’s Office from its obligation to investigate and charge, burdening the individual, who should not only provide a factual framework, but also a complete evidentiary support, without, however, having the equipment and instruments of the judicial police. Should Italian Legal System put the Police Forces at the disposal of the citizen, so that he can fulfil this supposed burden of proof, then the mandatory prosecution entrusted to Prosecution Offices would be superfluous and would pave the way to a private prosecution. But the countries of Western and contemporary juridical culture have never reached this point”.

Case closed? Absolutely not. Civitas has filed further denunciations before other Prosecutor Offices and is waiting for the incoming decisions. Anyway the matter turned from strictly criminal.

Fabio Giuseppe Carlo Carisio
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