Date(s) of offending: on/from 12 July 2004 to 12 July 2004
The German Cap Anamur, property of the NGO of the same name, was registered as both a “cargo ship” and a "rescue and support vessel"*. Its captain was Defendant 1. In the course of a mission, with destination Middle East, aimed at delivering food, medicines and medical equipment, the captain stopped in Malta for repairs to the engines. The Cap Anamur remained in Malta from 26 May to 4 June 2004, after which it took a number of navigability tests into a restricted sea area.
On 20 June 2004, Defendant 1 gave order to perform a new series of maneuvers at sea to verify the reliability of the engine repairs performed. During these tests, the vessel detected, on international waters, an inflatable vessel with 37 African irregular migrants on board, asking for help. It had departed from Libya. The migrants’ vessel was leaking air, taking on water, and releasing smoke from the engine. In addition, weather and sea conditions were highly adverse. Against this background, Defendant 1 ordered the rescue of the 37 migrants. Once on board Cap Anamur, most of them admitted to be fleeing from Sudan, a country overwhelmed with civil war. They received first medical care from the nurse on board.
Defendant 1 informed Defendant 3 of the situation. For several days, they studied the available avenues, remaining on the high seas. Finally, Defendants 1 (in the vessel) and 3 (in the headquarters of Cap Anamur NGO, in Cologne, (Germany)decided to head the Cap Anamur to Porto Empedocle, Sicily (Italy). While Libya was the closest port from the site of rescue, Porto Empedocle was the closest among those that could provide the most appropriate conditions to migrants, i.e. medical assistance, respect for human rights and a legal framework able to deal with the specific reality the migrants were coming from. By the same token, Porto Empedocle was the nearest harbor able to provide the necessary logistical support to the tonnage of a vessel such as the Cap Anamur.
On 28 June 2004, Defendant 3 joined the Cap Anamur and remained therein until the day of disembarkment of migrants in Italy (12 July 2004). On 30 June 2004, Cap Anamur initiated formal contacts with authorities, trying to assure the safe disembarkment of migrants in Italy. Initially, Italian authorities did not consent thereto. As time went through, Defendant 1 warned that some migrants presented serious psychological problems: despair and frustration took over them, with some beating their heads against the walls, others threatening to jump into the sea in the hope of reaching Italian soil swimming. Fearing a mutiny or revolt, Defendant 1 was forced to impose curfews and establish a surveillance post. In addition, the vessel was facing shortage of water in view of the number of persons on board. After days of negotiation, the Cap Anamur was allowed to dock in Porto Empedocle. Until then, it had remained short of entering Italian territorial waters.
Police officers on site, led the irregular migrants to the reception centre of Agrigento (Italy) for identification. Inside the vessel remained the three defendants, 10 crewmembers, and seven passengers (German and Italian), including journalists, photographers and maritime lawyers. The defendants were detained on suspicion of migrant smuggling and the Cap Anamur was seized.
Italian authorities had denied entry in national waters for different reasons, from mis-understandings in communications to divergent interpretation of legal obligations (see “History of Criminal Proceedings”). It also had found a number of circumstances suspicious, such as the (i) “abnormal” movement/itinerary of the vessel in the precious days, which could indicate the intent of patrolling international waters in search of irregular migrants travelling by sea, and (ii) fact that in the 10-day period that separated the day of rescue and the day of communication thereof to Italian authorities, the Cap Anamur had not informed Maltese authorities even though it had navigated close to its territory.
In addition, there was an ongoing complex diplomatic query on the State competent to address asylum claims by the 37 irregular migrants; that is, Germany, Italy, or Malta were in disagreement and did not recognized themselves as the proper jurisdiction to the effect.
Ultimately, Italian authorities gave authorization for Cap Anamur do dock on Porto Empedocle following declarations by the defendants (mostly Defendant 1) that the conditions in the vessel were precarious, giving rise to a real emergency. It was also feared a revolt from migrants, whereby Defendant 1 declared not to be in the position to ensure security on board. Authorities understood Defendant 1 was referring to a humanitarian emergency rather than lack of control over the migrants. Instead, once onboard, experts declared not to detect any humanitarian emergency. Notably, no migrant required medical assistance and sanitary conditions were standard.
The analysis of data from Data Voyage Recording– a type of “black box” of ships and vessels that allows reproducing the itinerary taken thereby – confirmed that in the period 4-19 June 2004, the Cap Anamur alternated between docking at the port of Valletta (Malta) and navigating Southwest of Lampedusa (Italy), on varying speed, stopping and initiating the engine several times and, on occasion, remaining adrift.
The Cap Anamur venture received intense media coverage. All migrants requested asylum in Italy. After proper verifications, it was determined that from the 37 migrants, 31 were Ghanaian and 6 were Nigerian. Asylum claims were thus denied and the migrants were ultimately deported.
In ascertaining the facts, authorities relied on testimonial and documental evidence.
The Public Prosecutor Office accused the defendants of migrant smuggling in the modalities of facilitation of illegal entry (i.e. by having transported the migrants into territorial waters and later disembarked them on Italian soil). It maintained they had done so with the dolo specificoof obtaining, directly or indirectly, a financial or other material benefit. Such material benefit included the international publicity and momentum gathered as well as the gains obtained through selling images and information relating to the facts and conduct under scrutiny.
On trial, the Public Prosecutor requested the (i) conviction of Defendants 1 and 3 to four years’ imprisonment and the payment of a fine in the amount of 400 000 Euro; (ii) acquittal of Defendant 2; (iii) confiscation of the vessel Cap Anamur.
The Court of Agrigento (Italy) acquitted all defendants.
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.
On 4 July 2006, the Giudice d’Udienza Preliminare of Agrigento determined, in line with the request of the Public Prosecutor, that the defendants should be prosecuted for migrant smuggling and submitted to trial. The first trial hearing took place on 27 November 2006. From then until the reading of the sentence on 7 October 2009, 26 further trial sessions occurred.In its claim for the defendants’ conviction, the Public Prosecution argued, inter alia, that the defendants had falsely presented the situation on board of Cap Anamur as urgent in humanitarian terms. In addition, it considered that the lapse of time between the day of rescue (20 June 2004) and the date of appeal to Italian authorities (30 June 2004) implicated the migrants’ loss of the status of shipwrecked. This would release Italy from the obligation to provide rescue.
Awaited trial in freedom
Captain of the vessel Cap AnamurThe Defence essentially maintained no crime had been committed and, subsidiarily, that the conduct was comprised within the scope of application of Article 51 Criminal Code (exercise of a right protected or a duty imposed by law) thus excluding the eventual criminal responsibility of the defendant.
Awaited trial in freedom
First-Officer of the vessel Cap Anamur
Accused of migrant smuggling, though on trial the Public Prosecution requested his acquittal.The Defence essentially maintained no crime had been committed and, were the Court to consider otherwise, the Defendant had not participated in the conduct.
Awaited trial in freedom
President of the N.G.O. Cap AnamurThe Defence essentially maintained no crime had been committed.