THE TRIAL OF THE LETF-TO-DIE CASE OF THE 11TH OF OCTOBER

“A conviction would force a correct interpretation of international rescue conventions…”

On 3rd of October 2013 at least 366 people died near the coast of Lampedusa. The photos of endless coffins in the commemoration hall of the island went through the media worldwide and all politicians pretended to be affected. Cecilia Malmström, who at that time was the EU Commissioner for Home Affairs, concluded her speech in the 8th October press conference with the following sentence: „Let’s make sure that what happened in Lampedusa will be a wake-up call to increase solidarity and mutual support and to prevent similar tragedies in the future. “

Only a few days later, while the crocodile tears were not yet dried, the next big shipwreck happened again, just about 60 nautical miles south of Lampedusa in Maltese SAR-zone. It was the October 11 so-called ‘children’s shipwreck’, in which 268 people died after more than five hours of non-assistance from state authorities.

On October 10, a fishing boat with about 400 Syrian and Palestinian refugees on board had left from Zuwarah and shortly after, it had been attacked by a Libyan boat, which had punctured the hull with gunfire. On October 11, as reported by persons on board to the Italian Coast Guard, the boat was slowly moving but embarking water; several injured people including two children were on board,

Nevertheless, no rescue operation was launched. Although being only 17 nautical miles from the ship in distress, the Italian Navy Libra Ship, was not allowed to intervene. In addition, it was required to hide itself, in order “not to be found on the Malta-Thuraya junction”, otherwise “those [the Maltese] would have put the engine out of action and turned back”.

It was only at 5.04 p.m., some five hours after the first call made by the people on board to the Italian Coast Guard, that the Libra ship received the order to proceed towards the target, and at 5.14 p.m., to do so “at the maximum allowed speed”, since a Maltese aircraft had sighted and reported the capsizing of the vessel. Phone calls between the refugees on the boat in distress, the Italian Coast Guard and the Italian Navy, were found and made public by L’Espresso (Fabrizio Gatti). A case reconstruction was also made by Watch The Med (https://watchthemed.net/reports/view/32), which finally contributed to the foundation of the independent hotline project of Alarm Phone exactly one year after this horrible incident.

Alessandra Ballerini is the lawyer of some of the shipwreck survivors, who lost their relatives at sea and a civil party in the Rome trial.

Can you recapitulate briefly the history of the trial? Which interventions made it possible that high-ranking members of authorities were accused in front of the court?

The first key element was the journalistic investigation by Fabrizio Gatti, who managed to reconstruct the exact chronology of events, thanks also to the testimony of the victims. A criminal report was first filed in Palermo and then in Agrigento. Investigations were ordered by the public prosecutor’s office, which helped to acquire many useful elements to determine responsibilities for the shipwreck. The trial was then moved to Rome due to questions of jurisdiction. We had to oppose the various requests for archiving, but in the end the Judge for Preliminary Hearing (Gup) ordered the indictment against Manna (Italian Coast Guards) and Licciardi (Italian Navy) and the hearing in the Court of Assize in Rome was opened. About 30 hearings have been held and now we have reached to the final discussion. 

What are the concrete accusations? 

These are the charges in which the accusations are summarised: 

— Luca Licciardi : charged with the offense referred to in Article 328, paragraph 1, of the Italian Criminal Code ‘because – holding the rank of Captain of the Italian Navy as head of the current operations section of the CINCNAV (Comando in Capo della Squadra Navale, Command in Chief of the Naval Squad)  as a public official unduly refusing to perform an act of his office which, for reasons of public safety, should have been performed without delay, in particular, having received notice through the “I.M.R.C.C.” of Rome that at 16.22 hours “M.R.C.C.” of Malta (which had already taken over formal coordination of SAR operations) had expressly requested the use of the Italian Navy’s Libra ship (as it was the closest vessel to the target) for rescue operations of an unstable boat overloaded with migrants located in international waters falling within the Maltese S.A.R. zone and which was in a dangerous situation (having been sighted by a Maltese aircraft), failed to give the order for immediate intervention at maximum speed to the above-mentioned naval unit, firstly ordering the Libra ship not to be informed, and subsequently, and in any case belatedly, at 17.04 to give the order to the Libra ship to proceed to verify the situation and provide assistance, and at 17.14 to proceed at maximum speed, reporting the capsizing of the vessel, in Rome on 11/10/2013.

 — Leopoldo Manna : charged with the crime of Article 328 paragraph 1 of the Italian Criminal Code, “because – holding the rank of Captain of the Corps of Harbour Offices and the position of head of the 3rd office – operations centre of the General Command of the Harbour Offices, with duties of general coordination of the maritime rescue services, indicated, according to the International Convention on Search and Rescue at Sea – S.A.R. Convention adopted in Hamburg on 27/04/1979, as “I.M.R.C.C. (Italian Maritime Rescue Coordination Centre) – as a public official unduly refused to perform an act of his office which, for reasons of public safety, had to be carried out without delay (…see above) failed to give the order for immediate intervention at maximum speed to the above-mentioned naval unit, limiting itself to passing the information to the CINCNAV of the Italian Navy, in Rome on 11/10/2013. 

— Both (Luca Licciardi and Leopoldo Manna) charged with “the offense referred to in Articles. 113 – 589, paragraphs 1 and 3, because in cooperation with each other by failing to promptly give the order to steer the ship Libra at maximum speed, thus not allowing it to provide rescue in due time – they negligently caused the death of an unspecified number of people (26 corpses recovered and an estimate of over 200 missing persons) – including N. and M., sons of J. M.; R.C. and M., T., B, wife and children of M.D. – migrants who, traveling on board an overloaded and unstable boat, which left the Libyan coast the evening of the previous day, drowned at sea after the boat capsized, they did so due to general negligence (imprudence, inexperience and negligence) and specific negligence, due to the breach of legal obligations to intervene and rescue at sea, based on national (navigation code) and international provisions (UNCLOS Convention, SOLAS Convention, SAR Convention)  In international waters of the Mediterranean Sea on 11/10/2013.  

When did the trial start and how did it go on? 

I filed a criminal report signed by the parents I represent a few months after the shipwreck. We had to oppose several archiving requests but in 2016 the criminal proceedings finally started. The trial that started in October 2021 suffered some pauses also because of the pandemic, but the thirty hearings were still held with some regularity.  

We understand that the LIBRA commander is not charged in this trial: could there be another trial for failure to assist or other charges against Pellegrino?

Yes, the proceeding against Libra Commander Pellegrino has not been archived, thanks to our opposition to the Prosecutor’s request to dismiss the case, and is still in the preliminary phase. 

Was the role of the Maltese Coast Guards a topic as well? If yes, does it mean anything for Malta?

There was a lot of talk about the Maltese Coast Guard because the shipwreck occurred in Maltese SAR zone and the coordination was assumed by Malta. The defense of the defendants tried to shift the responsibility to Malta. But in this trial the only defendants are Licciardi (Navy) and Manna (Coast Guard).  

How was and is the media attention in Italy? And internationally?

In the beginning it was very high, mainly thanks to the investigative journalism work carried out by journalist Fabrizio Gatti, without whom this process would probably not even have started. But as nine years have passed and there have unfortunately been many other shipwrecks, attention has definitely waned.

What have been from your point of view the most remarkable events during the trial? 

Certainly the testimonies of the survivors and that of journalist Fabrizio Gatti!

As the trial will come to an end probably within coming months: do you have estimation on the outcome or a certain expectation? 

Since I’m superstitious, I prefer not to express myself. This process absorbed our energies and continuously forced us into an exercise of heartbreaking empathy. The parents of the children who died in the shipwreck have been forced to remember and recount the drama of those hours. I believe that a verdict establishing responsibility for those deaths, after nine years, is the least they can achieve. We hope that the defendants will not dare, in order to evade judgment and responsibility, to raise pitiful statute of limitations issues.

In case of a sentence, what would be the consequences? Individually for the victims, but also politically for state authorities?

Victims could obtain compensation. Politically, a conviction would force a correct interpretation of international rescue conventions regarding the proper care and immediate rescue that must be given to any vessel in distress or better still, in presumed danger, because it is overloaded, unstable, damaged, with many passengers on board and among them children. A conviction would make it more difficult in the future to shift responsibility between states and would sanction the duty of immediate rescue (irrespective of the area in which the vessel in distress is located) as well as that of cooperation between Coast Guards of different countries.

The verdict is only coming after the election of a new extreme right-wing government… do you think it will influence the decision making? Or vice versa: can we really expect a clear independence of the legislative from the executive power?

Italians who are sensitive to human rights were very concerned about the outcome of these elections. The parties who won the elections are the same ones that spoke of an unlikely “naval blockade”. However, we believe in the separation of powers, the foundation of any democracy, and we do not think that the victory of the right-wing coalition should influence the decision of the judiciary.

Thank you very much for this interview!

On the 27th of January 2021, the UN Human Rights Committee ruled on the case and affirmed Italy’s and Malta’s responsibility for the violation of the right to life of the 268 shipwrecked people, including over 60 children. In spite thereof, this responsibility is still being discussed in current proceedings in Rome, as was the case during the last hearing on the 4th of October 2022. After “redefining the perimeter” of the judge’s decision, the Rome Public Prosecutor’s Office asked for full acquittal of the defendants because “the fact does not exist”. 

In particular, while redefining the outline of the judge’s decision, the Prosecutor placed emphasis on traffickers and smugglers as “the true responsible”, as well as refugees themselves, who should have not put their lives in danger by choosing irregular migration pathways. Despite more than 5 hours of non-intervention, the Prosecutor decided to look only into the 40-minute window (from 16:22 to 17:04) i.e. from the official fax sent by Malta to the Italian MRCC until the order to the Libra ship to go to the target. Consequently, the Prosecutor concluded that “there had been no delay, and indeed, the officers had acted in advance”. The defendants’ lawyers went even further, arguing that the event in question was not a SAR event and thus, the people were not in distress.

In view of this (dangerous) alignment between prosecution and defense, 8 November is the date set for the next hearing, at which the judge after further hearing the defense is expected to issue a decision.

What is at stake goes far beyond the assessment of the criminal liability of the defendants. At stake is the possibility of shipwreck survivors to speak out through legal channels demanding truth and justice. At stake is also the possible reconstruction of the complex legislation on search and rescue. Starting from the single event, going for the first time to clarify what circumstances constitute a SAR event, what elements contribute to defining the ‘danger’ of a vessel in the Mediterranean Sea, and what those duties of rescue and cooperation between coastal states, well-enshrined in the International Conventions on the Law of the Sea, may consist of in practice. Additionally, the whole mainstream narrative about sea-crossing and death at sea is at stake: while defendants’ lawyers keep highlighting the responsibility of shipwrecked persons for the loss of their own and their relatives’ lives, this trial is an opportunity to overthrow this narrative, to put the accent on the lack of safe and regular pathways to seek asylum, and to fill, at least for once, the gap concerning state accountability for deaths at sea.

At a historical and political moment, when people continue to die at sea every day, despite the fact that the competent authorities are often informed, the relevance of this procedure seems clear. Not only from a legal point of view, but also from a cultural and political one, so that people no longer die of non-assistance.https://civilmrcc.eu/echoes-from-the-central-mediterranean/echoes3-nov2022/

ECHOES Issue 3, November 2022