the judge’s statement of reasons
In his nearly 500-page written reasons, the judge explains how he arrived at his ruling: the dismissal of the case.
Sentenza n. 126/2024
Non luogo a procedere. No grounds to proceed.
On 19 April 2024, the judge handed down his verdict in a few brief words. The Italian text of his reasons reached us on 20 May 2024. Not until 24 September 2024 did we hold a copy in our own language in our hands. Until then, we did not know how far the judge would go in his reasoning, which arguments he would treat as admissible and relevant. What followed was far more than a simple acquittal.
On the investigation, the practice and the attitude of the public prosecutor’s office
The judge found that the investigation was based on “incomplete evidence”, “analyzed only from a partial perspective” and drawn from “trivial interrogation transcripts”. In a “one-sided evidential context”, aspects of “low evidential value” were overemphasised and completely uncertain data with no clear meaning were presented as “certain”.
In particular, the judge repeatedly called attention to the reality-distorting reports of the undercover agent Luca Bracco, whose statements formed two-thirds of the accusation. Furthermore, not all the necessary data was collected, despite being “available or at least easy to obtain”. The judge cites the fact that the investigating authorities were satisfied with the “sparse datasets” of the IMRCC, simply neglecting to request additional elements “that would allow an overall picture of the individual events and verify the behaviour of the protagonists of each event”.
As a result of this one-sided nature of the investigation and the “distorted accounts of some key events” provided by the investigators, the interpretations drawn by the prosecution did not correspond to what emerged as “actual events” at the preliminary hearing.
On the legal framework
The judge stressed that the iuventa crew’s actions must be viewed within the context of their obligation to perform sea rescues, as mandated by international and national law. He stated:
Contrary to the claims of the public prosecutor’s office, the data clearly showed that all rescue operations were under the command and constant coordination of the IMRCC!
Contrary to the opinion of the public prosecutor’s office, the people rescued by the iuventa crew were in a “obviously life-threatening situation, as they were traveling on inappropriate and overloaded boats, unsuitable to cover long distances safely and to reach the European coasts independently”. Considering the lack of “competent navigation, sufficient fuel, and safety devices” they were rightly considered “shipwrecked people” until brought safely ashore.
Contrary to the prosecution’s allegation that the iuventa-crew had returned boats and engines to smugglers or failed to prevent their recovery – a central allegation based on the testimony of alleged witnesses Pietro Gallo and undercover agent Luca Bracco and cited as the ultimate proof of co-operation between the iuventa crew and the people smugglers – the judge took a clear position on this: the “IUVENTA personnel were in no way legally obliged to prevent the recovery of the boats and engines. Therefore, no criminal offense could be established.” However, he also made it clear that such an intervention by IUVENTA’s crew during the rescue operation would have endangered the lives of the shipwrecked people and that the decision to refrain from such a dangerous action was therefore justified anyway.
After the field of suspicion has been cleared on the basis of objective data, the sources of evidence offer no alternative solutions and cannot be interpreted differently from those presented above. Furthermore, the evidence already collected during the preliminary hearing cannot be supplemented and could not be further developed in any way in the incriminating direction.
We quote here the concluding chapter of the judge's statement of reasons, as it summarises the most important and far-reaching parts of the reasoning. You can read the full reasons for the judgment in Italian and German.
13. CONCLUSIONS
From the evidence presented, it emerges with absolute clarity, and by virtue of its completeness, that the criminal offences charged against the accused, and consequently also the administrative offences charged against the companies, do not exist, with the exception of the administrative offences falling within the jurisdiction of the Court of Palermo.
Once the grounds for suspicion have been cleared away on the basis of objective data, the sources of evidence permit no other outcome and cannot be interpreted otherwise than as set out above.
Moreover, the evidence gathered, including during the preliminary hearing, cannot be supplemented and could not be developed further in support of the prosecution.
Holding a trial would therefore be entirely superfluous.
In conclusion, it must be emphasised that, with respect to counts 1), 2), 20), 21) and 27), a ruling is to be handed down discontinuing the proceedings and refusing to open the trial, because the act did not occur.
With respect to the administrative offences charged in counts 28) and 29), which depend on the criminal offence referred to in count 21), a ruling must likewise be handed down that no trial is to be held, because the administrative offence does not exist, while for the administrative offences that depend on the criminal offence referred to in count 23), the Court of Trapani lacks territorial jurisdiction in favour of the Court of Palermo.
Finally, it should be noted that the same procedural outcome, albeit through the application of different formulas, would in any event have been reached if, by strengthening the suspicion of collusive conduct between the accused and the smugglers, though without disregarding the established subordination to the constant coordination of the I.M.R.C.C., the evidence had been assessed as contradictory, since the findings obtained would in any case not have permitted the assumption that a conviction was sufficiently probable.
Moreover, even if the evidence had been capable of proving the fulfilment of the objective element of the offences connected with the necessary rescue operations carried out under the constant coordination of the I.M.R.C., it would not have been possible to prove the subjective element of the offences charged, that is, the awareness and willingness to facilitate the entry of migrants without a residence permit into the national territory in breach of the rules on immigration and migratory flows. This is all the more so given that, at the moment of rescue and until arrival at a place of safety, the migrants are to be regarded as "shipwrecked persons," and their status on land is determined only after they are handed over by the rescuers to the authorities responsible for border controls.
This holds even more strongly given that the possible applicability of the humanitarian exception under Article 12(2) of Legislative Decree 286/1998 would in any event have had to be taken into account for the rescue and humanitarian assistance activities carried out on the Italian vessels VOS HESTIA and VOS PRUDENCE, which under Article 4(2) of the Criminal Code are to be regarded as territory of the Italian State.
Likewise, the justification under Article 51 [116] of the Criminal Code, in the sense of the fulfilment of a duty to rescue (abstractly applicable, in an evolutionary perspective, also as a right to rescue [117]), would have had to be considered, taking into account the obligation to rescue, imposed by international, customary and treaty sources as well as by the rules of national law, towards migrants who find themselves in a manifest situation of danger and are travelling on boats that are dilapidated, overloaded and unfit to cover long distances in safety and to reach European shores, without competent navigation, sufficient fuel or safety equipment.
Against the background that the rescue operations were always ordered by the I.M.R.C.C. and carried out under the direction and constant coordination of the I.M.R.C.C., the justification provided for in Article 51 of the Criminal Code, namely the fulfilment of a duty imposed by a lawful order of a public authority, would also be relevant.
Finally, it should not have been overlooked that the further justification of necessity within the meaning of Article 54 of the Criminal Code may possibly have applied, since the actual danger of serious personal harm arises not only from the risks associated with navigation and the concrete probability of a shipwreck, but above all, again in an evolutionary perspective yet anchored in a real, known, documented, established situation based on concrete factual data, from the inhuman conditions to which the migrants are exposed during their transitory stay in Libya, as emerges from the report of the United Nations Support Mission in Libya and the Office of the United Nations High Commissioner for Human Rights of 13 December 2016, referred to in the introduction.
Flight from torture, arbitrary detention, sexual violence, ill-treatment, sexual exploitation and exploitation of labour, as well as the deprivation of basic human needs (food and medical care), is a clear indication of the inevitability of escaping a situation in which there exists a present danger of serious personal harm arising from confinement in Libyan detention camps for migrants in transit.
From this perspective, any conduct capable of enabling the entry of migrants into Italy without an entry permit would in fact be necessary, since it serves to protect the fundamental interests of the human person and frees the migrants in transit through Libya from the inhuman conditions in the detention camps.
This is all the more so given that the risks associated with a stay in Libya find corresponding recognition, as a principle of customary international law of absolute character having the value of "ius cogens" (peremptory law), as an expression of the prohibition of torture, which under Article 10(1) of the Constitution applies directly and is also guaranteed by treaty provisions [118] and by Article 19 of Legislative Decree 286/1998, in the right to non-refoulement to an "unsafe place" such as Libya at the time of the events, having regard to the well-founded risk of suffering torture or inhuman and degrading treatment [119], harm to life, liberty and psychological and physical integrity.
On this innovative interpretation of Article 54 of the Criminal Code, the restrictions on the humanitarian exception provided for in Article 12(2) of Legislative Decree No. 286/1998, according to which humanitarian aid and assistance for foreigners in need must be provided in Italy, provided they are present within the national territory, could moreover be overcome with regard to the rescue and humanitarian assistance measures carried out on a foreign vessel such as the Dutch IUVENTA in international waters, towards foreigners who are not yet present within the national territory.
Ultimately, therefore, it must be found that the present proceedings would in any event have reached an outcome comparable to the one decided, even if the direction of the concrete acts, contrary to the actual findings, had been aimed at procuring the illegal entry of foreigners into Italy, notwithstanding the unquestionable context of the necessary rescue operations, which were carried out under the constant coordination of the I.M.R.C.C. and in the absence of proven contacts with the criminal networks involved in the trafficking of migrants.
FOR THESE REASONS
pursuant to Articles 424(4) and 425 of the Code of Criminal Procedure, it is DECIDED to refuse the opening of the trial,
- with respect to the accused TROEDER LUTZ ULRICH MARTIN, AGHA MOHAMAD BEIGUI DARIUSH BENJAMIN, GIRKE SASCHA and SCHMIDT KATHRIN IRINA STEPHANIE, in relation to the charges referred to in count 1), because the act did not occur;
- with respect to the accused AMATO MARCO and ALONSO MORGUI ROGER EMILIO, in relation to the charges referred to in count 2), because the act did not occur;
- with respect to the accused CATANIA PIETRO MAURIZIO, KENNES MATTHIAS, FABBRI TOMMASO and TRAINITI MICHELE, in relation to the charges referred to in counts 20) and 21), because the act did not occur;
- with respect to the accused CATANIA PIETRO MAURIZIO, in relation to the infractions referred to in count 27), because the act did not occur;
pursuant to Article 424(4) of the Code of Criminal Procedure and Article 61 of Legislative Decree No. 231/2001, it is DECIDED to refuse the opening of the trial
- with respect to VROON OFFSHORE SERVICES S.R.L. (now BRITOIL OFFSHORE SERVICES S.R.L.), in relation to the administrative offence charged in count 28), dependent on the criminal offence referred to in count 21), and with respect to the NGO MÉDECINS SANS FRONTIÈRES – BELGIUM, in relation to the administrative offence charged in count 29), dependent on the criminal offence referred to in count 21), because the administrative offence does not exist;
pursuant to Article 321(3) of the Code of Criminal Procedure, it is ORDERED
- that the vessel IUVENTA, flying the Dutch flag, owned by Stichting Jugend Rettet NL and provisionally seized by order of the investigating judge of the Court of Trapani of 2 August 2017, be returned to its legal successor.