Between the years of 2015 and 2016, the Somalian defendant in the case, Matammud Osman, on behalf of a large transnational organized criminal group, was charged with procuring the illegal entry of hundreds of migrants to Italy. Their journey, on board minibuses and vessels, often in precarious conditions, was escorted by armed men of the organization. The journey began in Somalia, continued through Ethiopia, Sudan and Libya, with the final destination being the Italian coasts. Throughout the 2-years prolonged criminal activity, the defendant was in charge of two illegal detention camps in Libya: Bani Walid and Sabratah. Inside these camps, hundreds of Somali citizens, women, men and also minors, were kept prisoners and held in often precarious hygienic conditions. Migrants were completely deprived of their personal freedom, having no opportunity to escape. On a daily basis - as a way to punish the non-payment of the sum agreed for the smuggling operation (in most cases around 7,000 USD) - the defendant and his co-conspiritors would regularly go inside the camps to take Somali male citizens to a "torture room". There, they were tortured through electric shocks, whips, hit with sticks and iron bars, or left for hours dehydrated under the sun, causing them fractures and in some cases even death. Another type of violence, allegedly perpetrated by the defendant and his men towards migrants, was to cause severe burns by setting fire to plastic bags that were placed on the migrants' backs. These acts of torture were perpetuated in order to give a "warning" to other prisoners about the consequences to which they would be exposed in case of rebellion or in case their payment would not come on time.
The inhuman and degrading treatments committed against women, on the other hand, were mainly of sexual nature. The victims, many of them minors at the time, experienced rape and other sexual violence on a daily basis. The defendant, through threats of death and physical violence (beating them with fists, kicks, with a belt and with sticks), prevented them from any possibility of movement and would then, since some of them were infibulated girls, open their vaginas with metal instruments in order to penetrate them for the first time.
Italy
Libya
Somalia
Ethiopia
SudanIn the afternoon of the 26th September of 2017, a police patrol stationed in via Sammartini in Milan, intervened in the vicinity of a migrant reception center as it had noticed a group of people arguing animatedly.
Some young people approached the police officers and asked them for assistance.
When they reached the group, they saw a group of migrants who were holding down the defendant. With the help of translators of the reception center, the police questioned the migrants who brought serious accusations against the defendant, whom they called ISMAIL. Other migrants then lifted their shirts showing the scars he allegedly procured them, while several female migrants accused ISMAIL of rape and sexual assault. The next day, more migrants - who heard about the events through pictures and messages on Facebook – came forward with allegations.
A total of 17 migrants’ testimonies were collected, including the defendant’s wife testimony. In the following days, the police came into possession of videos and pictures that captured the defendant in alleged crimes. Police then confiscated the defendant’s mobile phones, which contained important evidence. Finally, medical-legal examinations were ordered to verify the compatibility of the injuries presented by the migrants with their description of the violence alleged against the defendant.
On 10th October 2017, the Assise Court of Milan declared the defendant, Matammud Osman guilty of the crimes of kidnapping for extorsion, murder, sexual violence and aggravated smuggling of migrants. The Court decided to absorb the aforementioned crimes into the more relevant crime of the murder, of numerous Somali citizens, that the same defendant was found guilty of.
The Court sentenced the defendant to life imprisonment, with daytime isolation for three years, in addition to the payment of the costs of the trial additional costs linked to imposing the prison sentence.
The defendant's counsel, in this regard, asked that the young age of the defendant and the family tragedies that had led him to leave Somalia, should be taken into account. As well as the fact that the defendant also once arrived at the camp of Bani Walid and, knowing that his family would not have been able to raise the amount of money required for his liberation, might have agreed to help the managers of the camp, just to avoid violence against him. However, the Court considered that the motivations for which the defendant resolved to undertake his journey to Europe and his dramatic experiences cannot justify the extreme gravity of the facts for which he must answer. The Court declared that the choice of severe punishments adopted against migrants, perpetrated in order to make them as painful and humiliating as possible, the number of deaths caused by him and women raped by him, cannot be considered justified by his previous experiences, but only an indication of deliberate cruelty. This, and the absence of any sign of resipiscence, therefore excludes the possibility of recognizing the general extenuating circumstances.
Lastly, the court ordered condemnation to accessory penalties and payment of court costs. In this regard, the defendant was sentenced to the payment of a provisional sum of 50,000 euros in favour of one injured party and 100,000 euros for each of the remaining parties
Life sentence to prison with daytime isolation for three years
For civil parts’ defence expenses
50.000 to one injured party and 100.000 to each of the remaining parties
Other payments, of 4.860 euros, to ASGI Association
In this specific Case, as many as seventeen male and female Somali migrants, served as important eyewitnesses and testified against their smuggler and perpetrator.
Kidnapping for ransom
Charge 1 - Kidnapping for ransom
The defendant, between the years 2015 and 2016, kidnapped hundreds of Somali citizens in the two camps of Bani Walid and Sabratah in Libya, in order to obtain as the price of liberation, for himself and for the other members of his organization, a financial and material benefit.
Art. 630 co. 1 and 3 c.p.
1. Any person who kidnaps a person in order to obtain an unlawful profit, for himself or another, as the price of the release, shall be punished by imprisonment for between twenty-five and thirty years.
If the kidnapping results in the death of the kidnapped person and this is an unwanted consequence of the offender’s part, the offender shall be punished by imprisonment for thirty years.
If the offender causes the death of the kidnapped person, imprisonment for life shall be imposed.
[…]
Neverthless, if the victim, once released, deceases as a consequence of the kidnapping, the punishment shall be imprisonment for between six and fifteen years.
[…]
Whenever an extenuating circumstance applies, imprisonment for between twenty and twenty-four years shall be substituted for the punishment as per the second paragraph; imprisonment for between twenty-four and thirty years shall be substituted for the punishment as per the third paragraph.
Where more than one extenuating circumstance applies, the punishment to be imposed as resulting from the application of the above reductions shall not be less than ten years in the case as per the second paragraph and not less than fifteen years in the case as per the third paragraph.
The limitations on the term of imprisonment set out in the preceding paragraph may be derogated from whenever the extenuating circumstances apply which are referred to in the fifth paragraph of this article.
Charge 2 - Murder
The defendant, between the years of 2015 and 2016, in collaboration with unidentified people, caused the death of numerous unidentified Somali citizens, previously kidnapped in the Bani Walid and Sabratah camps, whose families had not paid the agreed sum of money for the trip to Italy. The deaths were perpetrated in both the camps and/or along the route between the two, mainly as a result of the physical violence and tortures caused by the defendant.
With the aggravating circumstance of having used torture and cruelty towards the victims, having subjected them for a prolonged period of time to torture and eventually leading to the death due to particularly violent beatings, torture, and strangulation.
With the aggravating circumstance of the transnationality, since the crime was committed by an organized criminal group engaged in criminal activities in more than one State.
Art. 575
Whoever causes the death of a man shall be punished by imprisonment of not less than twenty-one years.
Art.577
The punishment of life imprisonment is applied if the act envisaged by article 575 is committed
[…]
4) with the concurrence of some of the circumstances indicated in numbers 1 and 4 of article 61
Art. 61
The following circumstances aggravate the offence, when they are not constituent elements or special aggravating circumstances
(1) acting for abject or futile reasons
(4) maltreatment of or cruelty to persons
Charge 3 - Sexual violence
The defendant, between the years of 2015 and 2016, forced dozens of Somali citizens, previously kidnapped inside the camps of Bani Walid and Sabratah, to undergo acts of sexual violence, sometimes on a daily basis. The defendant abused the particular position of vulnerability and threatened victims with death and physical violence. With the aggravating circumstance of having abused underage girls who had already been deprived of their personal freedom.
Art. 609 bis co. 1 and 2
Whoever, by violence or threat or by abuse of authority, compels someone to perform or undergo sexual acts shall be punished by imprisonment from six to twelve years.
The same punishment shall apply to anyone who induces someone to perform or undergo sexual acts:
1) by abusing the conditions of physical or mental inferiority of the offended person at the time of the act;
2) by misleading the offended person by substituting himself/herself for another person.
Art. 609 ter nn. 4, 5, 5 quinques, 5 sexies c.p.
1. The punishment established by article 609-bis is increased by one third if the facts provided for therein are committed
[…]
4) on a person who is in any case subjected to limitations of personal freedom;
5) on a person who has not reached the age of eighteen years;
5-bis) inside or in the immediate vicinity of an educational or training institution attended by the offended person;
5-ter) towards a pregnant woman;
[…]
5-quinquies) if the crime is committed by a person who is part of a criminal association and in order to facilitate its activity;
5-sexies) if the crime is committed with serious violence or if the fact derives from the minor, due to the repetition of the conduct, a serious prejudice.
Facilitating illegal migration
Charge 4 - Facilitating illegal migration
The defendant, between the years of 2015 and 2016, in collaboration with unidentified persons, organized the transport and in some cases performed acts aimed at procuring the illegal entry in the territory of another State of some hundreds of Somali citizens.
With the aggravating circumstances of having endangered the safety and lives of in order to procure the illegal entry; having subjected the persons transported to inhuman and degrading treatment; having used weapons; and having committed the act in order to gain profit.
With the aggravating circumstance of transnationality, since the crime was committed by an organized criminal group engaged in criminal activities in more than one State.
Legislative decree 25 July 1998 and article 4 L. 146/06
And
Milan First Court of Assise
This Case represents a significant decision for different reasons. First of all, it certifies the importance of migrants’ testimonies against their smuggler, especially if the smuggler in question is the leader and organizer of large-scale smuggling operations, and, more in general, against the organized criminal network that lies behind it. In this specific Case, as many as seventeen male and female Somali migrants, served as important eyewitnesses and testified against their smuggler and perpetrator. It is noteworthy that migrants organized themselves through the use of social media and voluntarily provided relevant electronic evidence to investigators. Their detailed testimonies helped the prosecution to debunk the arguments raised by the defense. Interesting is also the testimony of the defendant’s wife, who had not seen her husband during the two years of his criminal activities and was clearly unaware of the occurring facts at that time.
Second, the Court offers relevant deliberation on argument of duress and mitigation due to young age. While the court initially accepts that the defendant was forced into the criminal organization by abusing his position of vulnerability, it continued to argue that the excessiveness of the violence and sheer heinousness of the crimes committed by the defendant could not be excused. Furthermore, the Court ascertained that the defendant was procuring such tortures to the victims even in the case of accomplished payment. This exemplifies how the defendant in this Case has been perpetrating such crime not only for purposes of economic benefit but also, and mainly, because of his deliberate cruelty
Third, its gender considerations: the Court established that the defendant was allocating his torture practices and violence to male and female migrants in different ways. In fact, as their testimonies revealed, the defendant was primarily using sexual violence to torture women, while men would be subjected to extreme physical violence that lacked a sexual nature.
Finally, the case represents a rare example where smuggled migrants participated in the criminal proceeding as “partie civile”. The defendant was sentenced to the payment of damages to the smuggled migrants while allowing them access to justice as an equal party to the proceeding.