Day #1

First hearing – Effective notice and access of independent observers

Monitoring Report:

The first preliminary hearing in the case began at 10:30 at the Trapani courthouse and lasted for approximately three hours. The four Iuventa defendants – Kathrin Schmidt, Dariush Beigui, Sascha Girke and Uli Tröder – were present on-site, though only three entered the courtroom. Dariush Beigui remained outside, as he was in quarantine before heading out on his next search and rescue mission. The other 17 defendants in the case were not present on-site, but represented in the hearing by their lawyers. A few minutes’ walk from the courthouse, around 80 supporters of the defendants demonstrated their solidarity at the Trapani harbor, across from the still-impounded Iuventa ship, flanked by journalists and police officers.

Members of trial observation team waited outside the courthouse for the presiding judge to make a decision regarding access to the hearing for observers. Ultimately, we were not allowed access to the hearing, but base our notes on interviews with and public statements made outside the courthouse by the defendants and several defense lawyers.

In the preliminary hearing, legal counsel for the Iuventa defendants Nicola Canestrini argued for the trial observers to be allowed to enter on the basis of transparency of the proceedings, arguing that “secret justice is a justice of dictatorships, not democracies and the rule of law.” The presiding judge and all present defense counsel consented to the presence of the public, but on the basis of the prosecution’s objection, trial observation was not permitted for this hearing. The prosecution argued that there is no specific role for trial observers contemplated by Italian criminal procedure, and that and European Court of Human Rights jurisprudence only mandates public access where there is a determination of guilt or innocence in the course of the proceeding. Canestrini challenged this reasoning, arguing that: “The pretrial hearing is held in chambers to protect the rights of the defendants, not of the prosecution. It should be the defendants who decide whether they would like to have public observation of the hearing.” The prosecution agreed to reconsider the observers’ request for subsequent hearings.

The Iuventa defense counsel also argued that the prosecutors failed to properly serve the defendants notice of two critical aspects of the proceedings: the termination of the investigation phase, and the date of the first preliminary hearing. In Italian criminal procedure, defendants have 20 days following the termination of a prosecutorial investigation to make certain requests, such as to be questioned by the police or judicial authorities, to have defense counsel interview witnesses in the case file, and to submit further information into the case file.

As defense lawyer Francesca Cancellaro argued, after such a long investigation, the prosecution should have had time to follow proper criminal procedure and it would not be appropriate to now rush the proceedings. “If the cost of a faster trial will be a sacrifice of the defendants’ rights, then this is not fair. Respect of our clients’ rights, and the innocence of the crimes of which they are accused, are two parts of the same issue.” Canestrini added that notice was given to the defense counsel but not the defendants themselves: “If the Italian procedural code says the defendants have to be served personally, then they have to be served personally. It is not in the interest of me, it is in the interest of justice. It is their rules, they have to follow them just as we do.” Ensuring proper notice of defendants is a pillar of fair trial rights, as systemically marginalized groups typically bear disproportionate harm from breaches in such procedure, while more privileged defendants can often rely on their lawyers to relay such crucial information.

There will be two subsequent hearings on 7 and 15 June. On 7 June, the prosecution will be given the opportunity to reply to the defense’s challenges around notice and on 15 June, the judge will decide whether the case should be returned to the stage of the closing of the investigation. If it is, the Office of the Public Prosecutor will have to serve the defendants notice once more and the defendants will again have 20 days to submit additional files into the investigation. If the judge decides to proceed with the preliminary hearing stage, the next hearing is scheduled to take place on 5 July.

If the hearing on 5 July takes place, the defense counsel also intends to challenge the adequacy of the courtroom interpretation provided to the defendants. All three Iuventa crew members present at the first preliminary hearing on 21 May shared a single interpreter who lacked sufficient technical qualifications. While the defense counsel was able to translate key questions for the defendants, Canestrini is concerned that many defendants in Italy do not have this luxury. “In the courtrooms of Italy, every day defendants are tried without even understanding what it is they are accused of.” No further defendants were present in the courtroom on 21 May, but should they be for subsequent preliminary hearings, they should also have access to adequate interpretation.