Italy: arbitrary arrest and judicial harassment of Carola Rackete for rescuing migrants

08/07/2019
Urgent Appeal

ITL 002 / 0719 / OBS 058
Arbitrary arrest / Release /
Judicial harassment
Italy
July 8, 2019

The Observatory for the Protection of Human Rights Defenders, a partnership of FIDH and the World Organisation Against Torture (OMCT), requests your urgent intervention in the following situation in Italy.

Description of the situation:

The Observatory has been informed by reliable sources about the arbitrary arrest and judicial harassment of Ms. Carola Rackete, the captain of the flying Dutch flag ship Sea-Watch 3, a Search and Rescue (SAR) vessel from the German NGO Sea-Watch. A German specialist in environmental and nautical sciences, Ms. Carola Rackete has been dedicating herself entirely to humanitarian rescue in the Mediterranean Sea since 2016.

According to the information received, in the night of June 28 to June 29, 2019, Ms. Carola Rackete forced the Italian cost guards block and docked the Sea-Watch 3 - with 42 migrants on board - in Lampedusa’s port. She was subsequently arrested, at 3 a.m. on June 29, for “resistance or violence towards a warship” (Article 1100 of the Italian Navigation Code, hereinafter cod. nav. - a crime for which she could face up to ten years in prison) and “violence against public officials” (Article 337 of the Italian Penal Code, hereinafter c.p.) by around 20 police officers, and put under house arrest in Lampedusa. Ms. Carola Rackete was subsequently presented to the investigating judge (GIP) in Agrigento (Sicily) on July 1, 2019.

On July 2, 2019, after four days of house arrest, the investigating judge decided to lift the house arrest and release Ms. Carola Rackete pending investigation, despite the Prosecutor’s request to confirm the house arrest and a ban on residence in the province. In its decision, the investigating judge recognised that Ms. Carola Rackete’s decision to dock the Sea-Watch 3 in Italy was in line with international law and international conventions signed and ratified by Italy, namely with Article 98 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), ratified by and entered into force in Italy via Law No. 689/1994, which provides that the master of a ship must render assistance to any person in distress at sea and proceed to their rescue, as well as with the 1974 Safety of Life at Sea (SOLAS) and 1979 SAR (Maritime Search and Rescue) Conventions, both ratified by and entered into force in Italy respectively via Law No. 313/1980 and Law No. 47/1989, which also contain this obligation [1]. In its warrant, the investigating judge referred also to Article 18 and 19 of UNCLOS, which provide that the passage of a ship through the territorial sea, including stopping and anchoring, for the purpose of rendering assistance to persons in danger or distress must be considered “innocent” [2]. She concluded that the allegation of the commission of the offence provided for under Article 1100 of the Navigation Code is unfounded and that Ms. Rackete’s alleged responsibility for the offence provided for under Article 337 of the Penal Code is lifted by the exonerating circumstance provided for under Article 51 of the Penal Code, which absolves anyone who commits a crime to fulfil a legal obligation.

Despite the decision of the investigative judge, that refused to convalidate the arrest, thus releasing Ms. Rackete, and rejected the request to apply precautionary measures, the charges initially brought against her by the public prosecutor are still pending, and Ms. Carola Rackete will be heard by the public prosecutor on July 9, 2019. In the evening of July 2, 2019, the Sicily’s prefecture announced that a deportation order against Ms. Carola Rackete had been prepared and signed but that it would not be implemented before this next hearing. This order will have to be confirmed by judicial authorities.

Sea-Watch could also face the seizure of the vessel and a 50,000 Euros fine, according to recently adopted Legislative Decree No. 53/2019, which modifies Leg. Decree N° 286/1998, tightening up the sanctions for offences related to irregular immigration [3].

The Observatory expresses its utmost concerns about the increasing harassment and criminalisation against human rights defenders working on migration issues in Europe [4]. As of July 2019, at least 35 SAR workers were being officially investigated by the Italian authorities under charges of “aiding illegal immigration”. The trend of criminalising migrant rights defenders has also been documented in other EU countries, such as France and Greece.

The Observatory further recalls that rescue of people in distress at sea is an obligation under international law, as enshrined in e.g. Article 98 UNCLOS and in the SOLAS and SAR Conventions, and under customary law [5]. At the EU level, Directive 2002/90/EC (“the Facilitation Directive”) allows member states to exempt from sanctions those who enable a migrant to irregularly enter, transit or stay in the territory of a member states where the aim is to provide humanitarian assistance (Article 1 (2)) [6]. The failure to respect the duty to rescue constitutes a criminal offence in several EU member states [7]. The Observatory deplores that in the current context, Italy and other EU member states are acting in blatant violation of their domestic and international obligations and that vessels have been increasingly deterred from conducting SAR operations in the Mediterranean, to the point where such operations have virtually stopped.

On June 18, 2019, the Council of Europe Commissioner for Human Rights released a recommendation [8] to member states encouraging them to reframe their response to migration and SAR activities according to human rights standards. On March 1, 2018, the United Nations Special Rapporteur on the situation of human rights defenders also published a report underlining that “defenders of people on the move are currently facing unprecedented threats and restrictions to their work, as well as pervasive disqualification and criminalisation” and urging States and other stakeholders to protect their work [9].

The Observatory calls on the Italian authorities to ensure that all human rights defenders are allowed to carry out their legitimate human rights activities, in particular with regard to SAR operations in the Mediterranean Sea, without hindrance, and on the judiciary to immediately drop all charges against Ms Carola Rackete.

Background information:

On June 25, 2019, the application filed by the NGO Sea-Watch to the European Court of Human Rights (ECtHR) in order to obtain an interim measure under Article 39 of the Rules of the Court requiring that the applicants be authorised to disembark in Italy was rejected, on ground that most of the vulnerable people on board – 11 persons out of the 53 migrants initially present on board the ship - had already been disembarked on health grounds on June 15 and June 21-22. In spite of the applicants’ claim that the rights of the rescued people on board under the Convention [10] had been violated and their request to be permitted to disembark in order for them to be able to apply for international protection or, at least, to be taken to a safe place, the Court dismissed the request, considering that there were no exceptionally serious and urgent reasons justifying the application of the urgent measures.

Despite the Italian authorities’ prohibition to disembark and the ECtHR’s refusal to order an interim measure, on June 26, 2019, the Sea-Watch 3 entered the Italian territorial waters with 42 of the 53 migrants [11] its crew rescued in international waters within the Libyan SAR Zone on June 12, 2019 and who had been on board the ship for 14 days, waiting in international waters for an authorisation from Italy or another European Union (EU) member state to disembark.

On June 28, 2019, the prosecutor’s office of Agrigento, Sicily opened an investigation against Ms. Carola Rackete for “aiding illegal immigration” (Article 12.1 and 3 (a) of the Consolidated Act on Immigration), a crime for which, following recent amendments introduced by Legislative Decree No. 53/2019 entered into force on June 14, 2019, which modified the Consolidated Act on Immigration No. 286/1998 (Testo Unico sull’Immigrazione - T.U.I.), she could face up to 15 years in prison, and “refusal to obey to a warship” (Article 1099 of the Italian cod. nav.), as well as for non-compliance with the prohibition to enter, transit or stop in Italian territorial waters ordered by an Interministerial Decree issued by the Minister of Interior, in concert with the Minister of Defence and the Minister of Infrastructures and Transports on June 15, 2019 and based on Article 1 of the aforementioned decree, and ordered the search and seizure of the ship.

On June 29, 2019 the Sea Watch-3 entered the port of Lampedusa and disembarked, despite the Italian authorities’ attempts to prevent the disembarkation. Ms. Carola Rackete was subsequently arrested and the prosecutor requested as a precautionary measure the prohibition for her to reside in the Agrigento province.

Actions requested:

Please write to the Italian and European Union authorities asking them to:

i. End all acts of harassment against Ms. Carola Rackete and all human rights defenders in Italy, including those protecting and promoting the human rights of and providing humanitarian assistance to migrants, asylum-seekers and refugees, including through SAR activities;

ii. Ensure in all circumstances that human rights defenders and NGOs are able to carry out their legitimate activities, including SAR activities in the Mediterranean Sea, without any hindrance and fear of criminalisation or reprisals;

iii. In line with international human rights standards, broaden the scope of the exemption provided for under Article 12 of Italian Legislative Decree No. 286 of 1998 which, as currently drafted, is limited to SAR activities concerning migrants “already present on the territory of the State”;

iv. Launch an investigation into Italy’s Legislative Decree n° 53/2019, which modifies the Consolidated Act on Immigration (D. lgs. 286/1998), to assess its compliance with EU and international standards, and take appropriate measures to address any inconsistency that may be identified;

v. Amend Article 1(2) of EU Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence (“the Facilitation Directive”) to impose a clear obligation on Member States not to impose sanctions in cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned and ensure that his/her the human rights are respected [12];

vi. Conform to the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly of the United Nations on December 9, 1998, especially its Articles 1 and 12.2;

vii. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international and European human rights standards and international instruments ratified by Italy and the EU.

Addresses in Italy:

• Mr. Giuseppe Conte, Prime Minister. E-mail: presidente@pec.governo.it
• Mr. Luigi Di Maio, Deputy Prime Minister. E-mail: sgrvicepresidentedimaio@governo.it
• Mr. Matteo Salvini, Deputy Prime Minister, Minister of Interior. E-mail: sg.cgvicepremiersalvini@governo.it; gabinetto.ministro@pec.interno.it
• Mr. Enzo Moavero Milanesi, Minister for Foreign Affairs and International Cooperation. E-mail: ministro.affariesteri@cert.esteri.it
• Mr. Alfonso Bonafede, Minister for Justice. E-mail: centrocifra.gabinetto@giustiziacert.it
• H.E. Elena Basila, Ambassador of Italy in Belgium. E-mail: ambbruxelles@esteri.it
• H.E. Maurizio Massari, Ambassador, Permanent Representative of Italy to the European Union, E-mail: rpue@rp.esteri.it
• H.E. Gian Lorenzo Cornado, Ambassador, Permanent Representative of Italy to the United Nations. E-mail: rappoi.ginevra@esteri.it

Addresses in the European Union:

• Mr Donald Tusk, President of the European Council. Email: donald.tusk@consilium.europa.eu.
• Mr Jean-Claude Juncker, President of the European Commission. Email: president.juncker@ec.europa.eu
• Mr Frans Timmermans, European Commission’s First Vice-President and Commissioner for Better Regulation, Inter-institutional Relations, the Rule of Law and the Charter of Fundamental Rights E-mail: frans-timmermans-contact@ec.europa.eu
• Mr Dimitros Avramopoulos, European Commissioner for Migration, Internal Affairs and Citizenship. E-mail: dimitris.avramopoulos@ec.europa.eu
• Mr David Sassoli, President of the European Parliament. E-mail: david.sassoli@europarl.europa.eu.
• Mr Claude Moraes, (former) President of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament. E-mail: claude.moraes@europarl.europa.eu

Please also write to the diplomatic representations of Italy and the European Union in your respective countries.

***

Paris-Geneva, July 8, 2019

Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organisation Against Torture (OMCT). The objective of this programme is to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.
 
To contact the Observatory, call the emergency line:
• E-mail: Appeals@fidh-omct.org
• Tel and fax FIDH +33 (0) 1 43 55 25 18 / +33 1 43 55 18 80
• Tel and fax OMCT +41 (0) 22 809 49 39 / +41 22 809 49 29

[1] The aforementioned international obligations are reinforced under domestic law by the provisions under Article 1158 of the Italian Navigation Code, which criminalises the omission by the master of a ship to provide the said assistance to or rescue people in distress at sea in cases where he/she is under a legal obligation to do so.
[2] In addition, Article 10-ter of the Italian Legislative Decree 286/1998 provides that a foreigner found while irregularly crossing the State’s land or sea borders or arrived on the State’s territory following sea rescue operations must be conducted to designated hotspot areas for first assistance and informed of the procedures to seek international protection, relocation to other EU member states or assisted voluntary return. From this provision stems the obligation for State authorities to rescue and provide first assistance to anyone who has entered, albeit irregularly, the State’s territory.
[3] Legislative Decree No. 53/2019 (also known as Matteo Salvini’s second “Security Decree”) which modifies the Consolidated Act on Immigration (Testo Unico sull’Immigrazione – T.U.I., D. lgs. 286/1998) and which entered into force on June 14,2019, provides for fines of 10,000 up to 50,000 Euros for NGOs that try to disembark in Italy after rescuing migrants, as well as the seizure of the NGO migrant rescue ships if they are repeated offenders or if the migrants who disembark are more than 100. In May 2019, United Nations human rights experts wrote to Italy saying the draft decree was an attempt to criminalise SAR operations carried out by humanitarian actors.
[4] See for instance, the Observatory urgent appeals ITA 001 / 0418 / OBS 048, published on April 16, 2018; ITL 001 / 1018 / OBS 125, published on October 16, 2018; FRA 001 / 0518 / OBS 077.2, published on December 21, 2018 and ITL 001 / 0519 / OBS 041, published on May 13, 2019.
[5] See also: UNHCR, General legal considerations: search and rescue operations involving refugees and migrants at sea, 2017: https://www.refworld.org/docid/5a2e9efd4.html; 2018 UN Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations (Principle 4.7): https://www.ohchr.org/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf
[6] The European Parliament has also recently (2018) elaborated Guidelines for Member States to prevent humanitarian assistance from being criminalised, see: http://www.europarl.europa.eu/doceo/document/TA-8-2018-0314_EN.pdf?redirect
[7] See European Union Agency for Fundamental Rights, Fundamental rights at Europe’s southern sea borders, 2013, available at: https://fra.europa.eu/sites/default/files/fundamental-rights-europes-southern-sea-borders-jul-13_en.pdf
[8] See:https://rm.coe.int/lives-saved-rights-protected-bridging-the-protection-gap-for-refugees-/168094eb87
[9] See: https://undocs.org/pdf?symbol=en/A/HRC/37/51 and https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22735&LangID=E
[10] Namely, their right to life (Article 2 of the European Convention on Human Rights, ECHR) and not to be subjected to inhuman or degrading treatment (Article 3 ECHR).
[11] Out of the 53 migrants rescued on June 12, 2019, 11 vulnerable people (sick persons, children and pregnant women) had already been disembarked with the agreement of Italy on health grounds on 15 and 21-22 June.
[12] At the moment, the Directive allows States to decide whether or not exempt from the scope of the Directive “cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned”.

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