Smuggling of migrants

Offences

• Enabling illegal entry
• Enabling illegal stay
• Financial or other material benefit (to smuggler)

Mode

• sea

Case N. 3267/04 R.G.N.R.

UNODC No.:
ITAh037

Fact Summary

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.

 

 

Legal Findings:

 

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”.

 

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* 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.

Commentary and Significant Features

The Court of Agrigento (Italy) highlighted:

 

  • Defendants 1 and 3 benefit from the cause of exclusion of criminal responsibility enshrined in Article 51 Criminal Code; that is, the exercise of a right protected or duty imposed by law. In the instant case, the defendants were fulfilling the international obligation to provide rescue to persons in danger at sea.
  • By harbouring the 37 irregular migrants in the Cap Anamur, Defendant 1 carried out a rescue operation of persons that before being “asylum seekers” or “migrants” were “shipwrecked”. The fact that they were not Sudanese (as they had claimed to the defendants) and did not originate from a country ravaged by civil war did not change that condition.
  • It is unquestionable that a situation whereby 37 individuals remain on high seas, on board of an inflatable boat, with no food or assistance and under challenging weather conditions, requires urgent rescue. The migrants were under serious risk for their lives and physical integrity. The defendants acted under a state of necessity.
  • As time went by and migrants saw no resolution to their problem, despair and frustration took over them: some beat their heads against the walls, others threatened to jump into the sea in the hope of reaching Italian soil by swimming. The urgency of the situation and the risk for migrants’ safety and well-being was undeniable on the rise.
  • The evidence submitted clearly showed the “anomalous” movements of the Cap Anamur in the days prior to the rescue were the result of technical repairs to its engines and subsequent verification thereof. Even if this had not been the case – that is, if the Cap Anamur had been “patrolling” the high seas in search of irregular migrants to transport to a safe shore -, it would not per se eliminate the conditions that impose rescue: (i) considerable danger of sinking of the inflatable boat, and, consequently; (ii) high risk of death of the migrants on board at sea.
  • Italy abides by – and the judicial power decides in accordance with – international obligations, in line with the pacta sunt servanda principle (Articles 10 and 117 Constitution).
  • Article 98 United Nations Convention on the Law of the Sea (1982 Montego Bay Convention) determines on vessels’ commanders, within the limits of reasonableness, a duty of assistance and rescue over persons in danger at sea. Paragraph 2 of this provision requires coastal Member States to maintain a permanent service of search and rescue, adequate and effective in ensuring maritime safety, and to cooperate with neighbouring countries in respect thereof.
  • Article 98 Montego Bay Convention is an expression of the fundamental principle of solidarity on the sea. It is included in the range of norms that – in the terms of Article 311 of the Convention – may not be derogated from, even by agreement with other States.
  • Other international conventions contain similar or complementing provisions, notably Article 10 International Convention on Salvage (1989 London Convention), Article 15 International Convention on the Safety of Life at Sea (SOLAS), Article 2 1979 International Convention on Maritime Search and Rescue.
  • By the same token, the Italian Code of Navigation, in its Articles 69-70, established the duty of assistance and rescue to ships and persons in distress at sea. Article 1158 of the same Code criminally punishes the ship commander that fails to provide assistance and rescue at sea, including when the vessel in difficulty is incapable of manoeuvring (Article 490).
  • Such legal framework does not exclude that the assistance and rescue a State is bound to provide might be initiated by a vessel masting the flag of another State. Rather, it is likely to impose it when the urgency of the situation so demands.
  • The rescue operation is not concluded with the boarding of the irregular migrants into the safer vessel (in casu, the Cap Anamur); rather, it required the migrants to be transferred to a “place of safety” (as per, e.g., SOLAS and International Convention on Maritime Search and Rescue). Until such moment, the vessel shall retain the rescued persons while alternative measures are devised.
  • A “place of safety” is a “location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination”, as per paragraph 6.12 Maritime Safety Committee’s Resolution 167(78) of 2004 on Guidelines on the Treatment of Persons Rescued at Sea, and Annex to the International Convention on Search and Rescue. The same Guidelines determine that the State responsible for the search and rescue area in question is the one bound to provide the “place of safety”. In casu, Italy was that State,
  • Libya was indeed the closest port to the site of rescue. However, the defendants’ consideration that this would not be a place of safety was valid and reasonable. Libya had not ratified the 1951 Convention on the Status of Refugees or other fundamental international treaties on human rights, e.g. ICCPR and Convention against Torture.
  • It was not proven that between the rescue of migration and contacts with Italian authorities, the Cap Anamur had entered the Maltese search and rescue area. In any event, as explained by Defendant 1, he was aware that irregular migrants were not then given in Malta the treatment most consistent with international human rights standards. Notably, they were usually detained upon arrival, for a significant amount of time, without undergoing legal procedures. While the subjective conviction of the defendant is not sufficient to trigger the cause of exclusion of criminal responsibility at stake, there are objective elements supporting his stance, such as the Resolution of the European Parliament on the Situation with Refugee Camps in Malta of 6 April 2006.  It is relevant to note that it was important to ensure that migrants would be disembarked in a place where they could be submitted to the needed diligences to establish their identity and origins, as well as to guaranty the principle of non-refoulement would be strictly respected. The protection of fundamental rights of migrants was to take precedence over the EU system of management of refugee claims known as Dublin II. The EU legal framework must be interpreted in light of the international duty to rescue persons in distress at sea and transfer them to a place of safety.
  • In no moment had the Cap Anamur, in the person of its commander or otherwise, manifested or acted in the sense of rushing or delaying the disembarkment of the migrants. Rather, they always cooperated with authorities and showed to have at the highest consideration the well being of the migrants.
  • There was no evidence that the defendants had fraudulently submitted to Italian authorities a scenario of emergency. The fact that authorities understood the call for urgent assistance in view of the fear of rebellion and the incapacity of Defendant 1 and his crew to control the migrants as a statement of humanitarian emergency, was likely due to the chaotic communications landscape that involved the situation.
  • The only “anomalous” behaviour of Defendants 1 and 3 was that of taking 10 days to report the rescue to State authorities. Indeed, the commander of Cap Anamur should have immediately headed the vessel to the port he deemed closest and more appropriate so as to disembark the migrants in a “place of safety”. Arguably, Defendants 1 and 3 did not do so in order to gather momentum for the NGO they worked for, mostly in the realm of protection of migrants and refugees’ rights. This notwithstanding, these behavioural anomalies do not suffice to derogate the objective conditions that trigger the cause of exclusion of criminal responsibility in the instant case, i.e. rescue of persons in distress at sea, as long as such persons are indeed brought to a safe site, regardless the time spent in the rescuing vessel. Importantly, a doubt regarding the application of the cause of exclusion of criminal responsibility – which did not occur in the instant case – would determine an acquittal.
  • After asserting the absence of criminal responsibility of the defendants, it is unnecessary to analyse the alleged nature of the dolo specifico as raised by the Public Prosecution. This notwithstanding, during investigations, it did not emerge the defendants had perceived any material benefit. Notably, intellectual property rights over the documentary filmed on board the Cap Anamur belonged to a third party enterprise. In addition, it was not proven that the defendants had invited journalists into the vessel or that the latter had paid the defendants for information. Rather, journalists became interested and publicised the situation in the regular exercise of journalistic activity.
  • Nonethelsess, it cannot be ignored that the intense media coverage arguably triggered and promoted by Defendant 3 and the crew (e.g., photos in social media, interviews given, initial information of the rescue to German media, etc) brought significant international publicity and momentum to Cap Anamur NGO. At least in theory, under the spectrum of teleological interpretation, these publicity and momentum could fall within the scopeof financial or other material benefit (“profitto”). Indeed, the mainstream position is that, in the context of judicial interpretation of criminal law, “profitto” is not equated strictly to a financial advantage; rather, it comprises other typologies of benefits integrating a landscape of utility that goes much beyond the economic aspect alone. Yet, the assessment of whether such advantages indeed took place and whether they were intended by the defendants or were the result of a “physiological need of journalism” is in casu superfluous. Once one concludes for the inexistence of criminal behaviour, it is irrelevant – under the spectrum of criminal law – the intent the authors had when adopting such conduct.
  • There were no evidence pointing to the fact that Defendant 2 had had any responsibility for the conduct deemed criminal by the Public Prosecution. He had no decisional power in the conduct under analysis. He had a merely executive function within the Cap Anamur vessel. In addition, he carried out no duties of First Officer with Italian authorities. Such functions were exercised exclusively by Defendants 1 and 3.

 

Against this background, the Court of Agrigento acquitted Defendants 1 and 3 as their conduct did not constitute a crime. It acquitted Defendant 2, noting he had taken no involvement in the conduct evaluated in the proceedings. The Court further ordered the release of the assets confiscated and delivery to the owners.

 

It should be noted that the Court of Agrigento considered the route taken by Cap Anamur to be of particular importance in assessing whether there had been the intent of facilitating illegal entry in Italy. In this respect, the Court took into account the data available through Data Voyage Recording, a type of “black box” of ships and vessels that allows reproducing the itinerary taken thereby. It showed a pattern of movement consistent with a mal-functioning vessel undertaking tests of navigability and technical reliability (see “Facts”).

Interestingly, the Court also took into account, as documental evidence, a number of videos and reports made by journalists on board the Cap Anamur, including the film recordings aimed at preparing a documentary (on the basis of the events of the ongoing mission) for the celebration of the 25th anniversary of the NGO Cap Anamur.

Finally, while the matter was not analysed in detail given that no crime was deemed to have occurred, this judgment offer a significant contribute to the understanding of the concept of “financial or other material benefit”.

 

 

 

NOTE: As per Italian national law, the purpose of obtaining a financial or other material element is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation - Italy).

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• organiser/director
• principal offender(s)
• participant, facilitator, accessory

Application of the Convention

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Libya

Italy

Investigation

Involved Agencies

• State Police, Criminal Police, Public Prosecutor

International Cooperation

Outline:
Legal basis of international cooperation: 1979 International Convention on Maritime Search and Rescue (1979 Hamburg Convention)

Information was shared with Italy through the Maritime Rescue Coordination Centre (MRCC), a mechanism of international maritime cooperation foreseen in the 1979 International Convention on Maritime Search and Rescue. It was through it that Italian authorities were able to assess a series of suspicions regarding the movements of the Cap Anamur.
 

Procedural Information

Legal System:
Civil Law
 
Proceeding #1:
  • Stage:
    first trial
  • Official Case Reference:
    Case N. 3267/04 R.G.N.R.
  • Decision Date:
    07 October 2009

    Court

    Court Title:
    Tribunale di Agrigento
    Court of Agrigento
     
    • Criminal
    Description:

    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.
     

    Outcome

  • Verdict:
    Acquittal
  • Migrants

    Migrant:
    Nationality:
    Somali

    Defendants / Respondents in the first instance

    Defendant:
    S.H.F.S
    Gender:
    Male
    Nationality:
    Polish
    Age:
    67
    Born:
    1941

    Awaited trial in freedom

    Captain of the vessel Cap Anamur

    The 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.
    Defendant:
    D.V.
    Gender:
    Male
    Nationality:
    Russian
    Age:
    43
    Born:
    1966

    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.
    Defendant:
    B.E.F.U
    Gender:
    Male
    Nationality:
    German
    Age:
    48
    Born:
    1960

    Awaited trial in freedom

    President of the N.G.O. Cap Anamur

    The Defence essentially maintained no crime had been committed.

    Charges / Claims / Decisions

    Defendant:
    S.H.F.S
    Statute:
    Criminal Code Article 416 (1), (2), (3), and (6) Criminal Code (and 4 Law 146/2006) Criminal conspiracy to facilitate illegal entry of migrants
    Statute:
    Decree Law 286/1998 Article 12, (3), a), b), c), d), e), (3bis), (3ter), b) (and Article 81 Criminal Code) Provisions against illegal immigration
    Defendant:
    D.V.
    Statute:
    Criminal Code Article 416 (1), (2), (3), and (6) Criminal Code (and 4 Law 146/2006) Criminal conspiracy to facilitate illegal entry of migrants.
    Statute:
    Decree Law 286/1998 Article 12, (3), a), b), c), d), e), (3bis), (3ter), b) (and Article 81 Criminal Code) Provisions against illegal immigration.
    Defendant:
    B.E.F.U
    Statute:
    Decree Law 286/1998 (as amended by Law 189/2002) /§ Article 12, (1), (3) and (3bis), (and Article 110 Criminal Code) Provisions against irregular immigration

    Attachments

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