Italy: Court of Trapani rules that those rescued on Vos Thalassa acted in self-defence in opposing Libyan orders to disembark

Date: 
Thursday, May 23, 2019

On May 23, 2019, the judge for Preliminary Investigations of the Court of Trapani acquittedtwo individuals who were rescued by the tugboat Vos Thalassa, along with 65 others, in the Sicilian Channel in July 2018. The two applicants were arrested upon disembarkation in Italy, accused of having led a revolt against the crew to prevent their return to Libya and for aiding illegal immigration.

The judge held that while the facts of the case are well established, it is important to analyse if there was a justification for the actions of the accused. In this case, the judge considered that their actions were legitimate in that they were acts of self-defence.

The judge assessed the international rules and norms related to Search and Rescue operations. He recalled that under the International Convention on Maritime Search and Rescue (the SAR Convention), those rescued during a search and rescue operation should be taken to a safe place where, in addition to providing protection of physical integrity and human dignity, the possibility of asserting fundamental rights is guaranteed, starting with the request for international protection. He held that it is hard to argue that in the summer of 2018, to when the facts of the case date back, Libya could have been considered a safe place in accordance with the SAR Convention. The judge emphasised that the situation in Libya is characterised by serious and systematic violations of human rights and that Libya has not ratified the 1951 Refugee Convention. He also held that Libya did not meet the requirements laid down in Article 6.12 of the UNHCR Guidelines on the Treatment of Persons Rescued at Sea regarding a place of safety.

Concerning the principle of non-refoulement, the judge extensively cites international law. Particular reference is made to Article 3 of the European Convention on Human Rights, as interpreted by ECtHR case law, under which states cannot return individuals to a state where there is a real and concrete risk of an individual being subject to inhuman or degrading treatment. The judge also refers to Articles 4 and 19 of the Charter of Fundamental Rights of the EU, which prohibit in an absolute and imperative manner, the return to a country where the individual faces a risk of torture.

Concerning the bilateral agreement between Italy and Libya, the judge held that the agreement was made between the Prime Minister of Italy and the Head of the Libyan Government of National Accord without prior authorisation from the Parliament. As a result, the judge stated that the agreement cannot be recognised to have legal effects and is therefore not binding.

Finally, the judge cites UNHCR reports to describe the conditions for migrants in Libya, in particular current living conditions, torture, lack of food and education. He concluded that returning individuals to such conditions would be a grave violation of their fundamental rights.

In light of the above, the judge recognized that the offences of the two applicants had not been disproportionate in the context of the circumstances of the case. Given that the fundamental rights of the applicants were at stake, including their right to life and to not be exposed to inhuman or degrading treatment or torture, and that the right to self-determination of the crew was expendable, he acquitted the two applicants.

Based on an unofficial translation by the EWLU team. EWLU would like to thank Sofia Bonatti, Senior Legal Officer at ECRE for her assistance with summarizing this case. 


This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

 

Keywords: 
Inhuman or degrading treatment or punishment