The defendant was deemed to be a member of a transnational organised criminal group (composed mostly of Somali, Sudanese and Libyan individuals)dedicated to the smuggling of migrants and trafficking in persons. In order to achieve these goals, the organised criminal group further engaged in a series of connected and ‘auxiliary’ crimes, namely kidnapping with the purpose of extortion and homicide. The activities of this criminal group occurred mostly in Libya (city of Kufrà) and Italy.
The defendant’s role within the said organised criminal group was that of – being armed - monitoring and keeping surveillance over migrants that had been kidnapped and maintained in a slavery-like situation, in a structure known as Hudeyfà (Libya). In so doing, he committed a series of offences against the physical and psychological integrity of migrants.
Specifically, upon reaching Libya from their respective countries of origin, the migrants would be coercively detained in Hudeifà. All their possessions were taken by the smugglers. The smugglers would then demand their families for a ransom for their release (up to 5250 USD) and or the fee deemed appropriate for continuation of the journey to Italy. The payments would then occur via the Hawala method. Some migrants declared that the defendant would request the ransom added of 250 USD, which he would directly usurp. Sometimes, the smugglers would torture the migrants and make their families hear their screams over the phone. Once the payments were received, the migrants would either be abandoned in Libya or sold to other smugglers that would facilitate the journey to Italy. Movements between sites occurred by truck or bus.
During the kidnapping period, water and food lacked. The migrants were abused and mistreated. This would happen including when they asked for more water or food. Some, evidenced by marks of torture on their bodies. At least three migrants presented lesions and scars in the abdomen and back consistent with torture imposed via electric cables. Others, declared to have been beaten up with a rubber stick.
On 26 May 2017, 307 individuals (including the defendant) were rescued from a vessel*, close to the Libyan coast, by a tugboat. On 27 May 2017, these persons arrived to the port of Lampedusa (Italy) on board of a ship of the Coast Guard that had recovered the said individuals from the tugboat. They were then transferred to the Hotspot of Lampedusa for screening and photograph taking. Following the appropriate assessment, it emerged the 307 migrants did not fulfil the legal requirements to enter and stay in Italy. They were thus irregular migrants. Most migrants were minors.
Upon questioning, five migrants declared to have been kidnapped in Kufrà and confirmed the role of the defendant in the context of the organised criminal group that had arranged for their journey to Italy. They further declared that, once in Lampedusa, the defendant had threatened some of them not to give incriminating declarations against him. To others, he had asked for forgiveness. The migrants remained afraid and intimidated.
Some migrants declared that deaths had occurred amongst the kidnapped migrants, either due to disease or as a result of torture and mi-treatment. Likewise, some migrants stated to have been told that, before their arrival to the ‘safe house’, few migrants had managed to escape. However, they had been recaptured and killed in front of the other migrants.
In establishing the fact, authorities relied muchon testimonial evidence (notably declarations of several smuggled migrants in Lampedusa) and identification of the defendant via photographs. Documentary evidence – notably, photographs of torture marks – taken by the police with the assistance of medical staff was of much importance. These photographs were complemented with expert medical reports.
Investigations continued re other alleged members of the organised criminal group. At least one migrant declared that it was planned for other members of the organised criminal group to travel to Europe, from Nigeria, attempting to pass as smuggled migrants.
Against this background, the Public Prosecutor argued for the existence of strong indicia on the defendant’s membership in a transnational organised criminal group dedicated to the smuggling of migrants (associazione a delinquere). The defendant was thus indicted for migrant smuggling, membership in an organised criminal group, trafficking in persons, and kidnapping with the purpose of extortion.
The Prosecution noted the existence of a number of aggravating circumstances. Notably:
- Re membership in an organised criminal group: (i) having carried out the criminal conduct through an organised criminal group operating in more than one State, (ii) more than ten individuals having been involved in the perpetration of the crime;
- Re migrant smuggling: (i) having participated in the smuggling of five or more persons, (ii) having committed the crime in three or more individuals, (iii) purpose of obtaining a financial or other material benefit with the proscribed conduct, (iv) endangering the life or safety of migrants, (v) submitting migrant to degrading or inhuman treatment.
For details on the legal reasoning applied, see infra under “Commentary”.
----* Note: In this analysis, the UNODC uses the term “vessel” with the meaning it entails for the purposes of the Protocol against the Smuggling by Migrants by Land, Sea and Air, that is “any type of water craft, including non- displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non-commercial service” (Article 3 (d)). Accordingly, it comprises unseaworthy ships and boats in precarious conditions.