Criminalising solidarity, part II
Italy/Tunisia: Fishermen on trial for rescuing migrants


The trial of seven Tunisian fishermen began in Agrigento (Sicily) on 22 August 2007, two weeks after their two fishing boats rescued passengers from a dinghy in distress carrying 44 migrants in international waters around 40 miles south of the Pelagian islands (Lampedusa, Linosa and Lampione) that had sent out an SOS on 8 August.

According to the testimony in court of a Moroccan man who was rescued, the Mortadha and Mohammed el-Hedi intervened when the passengers had been without food for days, with a two-year-old child crying constantly, two other children including one who was spastic, a pregnant woman who lay on the deck, in a dinghy whose front had deflated and had been held up by passengers while the engine drove them forward. They switched the engine off while requesting assistance, which was denied by several other boats. The crews and captains, who acted in accordance with the law of the sea that demands that everything possible be done to rescue vessels in distress, were arrested on arrival and face charges of assisting illegal immigration for profit, an offence that carries a prison sentence of between one and 15 years, after fast-track judicial proceedings were initiated. On 10 September, the fishermen were released from custody, and the captains of the two vessels were placed under house arrest in a nearby reception centre in Licata. Court hearings are scheduled to resume on 20 September.

In spite of the boats being closer to Lampedusa than to Tunisia, the port authority did not authorise their entry into Italy, ordering them to turn back towards the north African country, although they had been previously ordered to head into Italian waters to allow inspection. A doctor had boarded the fishing boats in Italian territorial waters to inspect the passengers and certify that none of them were in particularly serious conditions, so as to exclude the possibility of them docking in the port of Lampedusa due to a "state of necessity". The captains disobeyed, taking them into the port as it was closer, apparently also because the sea was rough, resulting in their arrest and that of the five crew members on arrival, and in the seizure of the boats, caught in the act of breaching the prohibition to dock. Four of the passengers were carried to a hospital in Palermo by helicopter.

The charges of facilitating illegal immigration relate to the prosecution's assertion, based on the absence of nets or ice for chilling the catch on board, that the fishing boats were in fact "mother ships" involved in migrant smuggling networks, responsible for carrying the migrants in international waters before disembarking them into smaller vessels (that have not been found) nearer to the island. The disappearance of the dinghy, a vessel that, it is argued, does not normally sink, is a further element in the reconstruction on which the charges are based. The defendants claim that they were on a duly authorised fishing expedition in international waters in which their role consisted in lighting the sea bottom to help another vessel to drag its nets, and that the dinghy sunk as it filled with water as its passengers climbed onto the fishing boats.

There was a strong mobilisation in support of the Tunisian defendants among associations active in the field of immigration and MEPs, with 103 of them signing a request for their release and a delegation travelling to Agrigento to express their solidarity during a demonstration on 7 September.

In a legal analysis of the incident, Fulvio Vassallo Paleologo of Palermo University highlighted some concerns raised by the incident. Firstly, he notes that the incident is not isolated, referring back to a precedent in late June of this year involving the rescue of 23 shipwreck victims (five people drowned in the incident according to the rescued migrants) holding onto its tuna cages in international waters between Libya and Malta by the Icelandic trawler Eyborg, which was ordered to transport them to Misurata in Libya. The captain refused to do so in spite of having been threatened with arrest, arguing that Libya was not a safe destination for Erithrean asylum seekers, a view supported by reports of the detention and repatriation of Erithreans (there were also Ethiopians, Nigerians and Somalis) by Libya. Malta eventually accepted to take charge of the shipwreck victims after pressure from different EU states and a promise that the burden would be shared between different states, and the captain was not arrested.

In reference to the inspection by a doctor (above), Paleologo notes that the duty of rescue at sea and the prohibition of refoulement do not depend on the migrants' health conditions when they enter territorial waters, and that involvement in "humanitarian" rescue and assistance to migrants in need are expressly excluded from being construed as criminal offences by the Italian immigration law. Legal doctrine has also established that the state has a duty to co-operate in the finalisation of sea rescues, "allowing shipwreck victims to disembark" irrespective of its power to pursue people facilitating illegal immigration or to adopt measures against illegal migrants, with due guarantees.

The analysis also notes that the police reconstruction ignores the fact that were potential asylum seekers among the shipwreck victims, including Erithreans, and that returning them to Libya or Tunisia may have resulted in their repatriation and in the violation of the principle of non-refoulement contained in the Geneva Convention and of guarantees in the Italian constitution, among others, and that the duty of rescue and assistance not only involves saving peoples' lives at sea, but also to make them disembark in a "safe place". Thus, Paleologo argues that if the reconstruction provided by the crew members is confirmed in court proceedings, the incident should not be liable to have any penal relevance.

In spite of Tunisia's formal adherence to the Geneva Convention on refugees and its apparent recognition by European border police forces as a "safe third country", there have been reports of intercepted migrants being immediately detained in its 11 detention centres and subsequently expelled to neighbouring countries (including Libya) where they were likely to suffer ill-treatment. Fishermen are increasingly wary of intervening to save migrants in distress as a result of the risk of facing criminal charges and often limit themselves to informing military authorities. Cases in which military vessels have forced boats back to the region from which they set off have been documented, although an interministerial decree issued by the Berlusconi government in 2003 to make the practice of inspecting and escorting them back to their port of origin commonplace has largely remained unimplemented due to its contravening the international law of the sea (except for cases involving terrorism, piracy or environmental pollution) and to the Italian navy's efforts to rescue vessels, described as "exemplary" by Paleologo.

Sources

"Lampedusa: salvarono naufraghi, oggi rischiano il carcere", Fortress Europe 27.8.2007, and "Agrigento: scarcerati i pescatori tunisini; audizione a Strasburgo", Fortress Europe, 10.9.2007, both available at: http://fortresseurope.blogspot.com;
"Ancora sotto accusa chi salva la vita in mare", 18.8.2007, in-depth analysis by F. Vassallo Paleologo, Palermo University and ASGI, available at: http://www.meltingpot.org/stampa10973.html .

"Trial in Agrigento : No to the criminalisation of solidarity", appeal, Migreurop website

Previous Statewatch coverage
Criminalising solidarity, part 1: Cap Anamur trial underway


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