On 3 October 2013, a boat with migrants in provenance from Libya and directed to Sicily (Italy), capsized and killed 366 people. Only 156 people survived. The migrants were all Eritrean, with the exception of one Tunisian. The boat was clearly overloaded vis-à-vis its conditions of navigability. The survivors were sent to the reception centre of Lampedusa (Italy).
On 25 October 2013, a group of migrants who had also been rescued off the coast of Italy was sent to the same reception centre. One of the new arrivals (the accused) was aggressed by around 15 of the migrants already settled at the centre, amongst whom there were women in state of shock. The situation was controlled due to the intervention of the authorities.
At least eight migrants were heard within the institute of incidente probatorio, in the presence of legal counsel and interpreters as they were heard as suspects in the contravvenzioneof illegal immigration. It resulted as follows:
The accused was also heard, denying all the accusations and sustaining to be a smuggled migrant at the resemblance of all the others.
Legal findings:
The Court concludes that the accused: (i) was member of a highly structured and transnational organised criminal group based in Africa, acting with the purpose of obtaining a financial or other material benefit, and dedicated to the smuggling of migrants (amongst other crimes), (ii) directly managed an illegal detention centre in the desert of Sahara, where (together with other non-identified Somali individuals) submitted the migrants to major violence, including sexual and gender-based violence against the women, (iii) organised, together with his associates, the remaining of the trip of the migrants, notably to Tripoli.
The Court further considered there to be aggravating circumstances given (i) the intent of obtaining a financial or other material benefit, (ii) more than five people were smuggled, (iii) more than 3 people were engaged in the criminal act, (iv) the life and safety of migrants was endangered. The Court refused the application of attenuating circumstances as it saw no sign of regret nor evidence contradicting its understanding of the events.
Against this background, the Court convicted the accused of criminal conspiracy for the purpose of smuggling migrants as well as procuring the illegal entry of migrants in Italy.
For further details, see infra under “Commentary”.
Italy
Ethiopia
Eritrea
Sudan
ChadCorte di Assise di Agrigento
The decision invokes the innovative yet consolidated case-law on the exercise of jurisdiction on the high seas, on grounds of the doctrine of “autore mediato”.
Specifically, for the lawful exercise of the Italian jurisdiction, it is necessary that the action or omission that constitutes the criminal conduct takes place, in whole or in part, in the territory of Italy (Article 6 Criminal Code). The jurisdiction will equally be established if the natural result of the conduct occurs in Italian territory. The fact that the transportation of migrants by the suspect was interrupted in international waters due to the intervention of the Search and Rescue (SAR) operation does not preclude the Italian jurisdiction. Once authorities are aware of the precarious conditions migrants’ are travelling in, they are under the national and international obligation to take action and attempt to rescue the endangered migrants. In this sense, authorities act under a state of necessity (in order to prevent a greater harm, i.e. the death of migrants). The organised criminal group thus instrumentalises authorities so as to ensure the ultimate goal of the criminal plan will occur in Italian soil. Accordingly, the Italian jurisdiction is triggered, preventing an impunity gap and giving inter alia effect to Article 5 UNTOC.
This decision highlights the importance of respecting the rights of smuggled migrants, by making available a qualified interpreter and legal counsel as appropriate. In respect of migrants’ statements and their admissibility as evidence, the Court recalled the doctrine of “convergence of multiple”, meaning that in assessing the evidence, elements raised or gathered a posteriori may play a role as long as in their specificity, convergence and independence they still point to the same suspect and circumstances. General details do not suffice. Migrants’ declarations were coherent and consistent as well as independent and specific. Some incongruence between statements, not only unveils the absence of coaching but may be easily justified by lapses of memory, confusion or different subjective perceptions. This notwithstanding, the Court assessed the relationship between the very serious crime attributed to the accused and the minor contravvenzione imputable to the migrants. While the latter could abstractly wish to undermine the accused, the content of the depositions (including that of the accused and the inconsistencies therein) established a framework of strong probability and reasonableness.
This decision further highlights the contours of the actus reus and mens rea of membership in an organised criminal group and participation in a criminal conspiracy, thus further enhancing the effectiveness of Article 5 UNTOC. The indispensability of the subject to the activities of the organised criminal group is a crucial element to determine the level of involvement – and responsibility – of the accused. In other words, this is a preponderant element that allows the qualitative leap from involvement of an organised criminal group to criminal conspiracy to occur. The current case is a good example of a situation where – even if the accused participation had occurred only in this instance – it would have been enough to sustaining the participation in the criminal conspiracy. The Court noted that while no evidence had been submitted regarding other instances of this crime-type involving the accused, it was irrational to believe that the levels of sophistication and organisation revealed in its modus operandi could have been set forth only for one single operation. As noted by the Court, this is without prejudice to the fact that, as per consolidated jurisprudence, participation in a criminal conspiracy may be upheld through contribution to a single act. In respect of the crime of procuring illegal entry, the Court underlined that it is a reato di pericolo. Accordingly, the consummation of the offence is independent of actually achieving the result intended, It is the conduct adequate to promote such result that is relevant,
NOTE: As per Italian national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation - Italy).