The prosecution links solidarity and profit: hypothesis of a crime that does not exist
By STEFANO ZIRULIA, Jurist at Milan University, for l’Avvenire, edition of 5 March 2021.
“They did it for financial gain, not out of solidarity.” The serious charges that have been slithering around for days made against the crew of the Mare Jonio regarding the transport to Pozzallo of 27 migrants rescued at sea by the Danish merchant ship, Etienne, can be summarized in such a statement. Claiming to have evidence that the transfer of shipwrecked people from the Danish ship to the Italian one was based on a business transaction, Ragusa’s Public Prosecutor’s Office has opened a case for aiding and abetting illegal immigration. The Prosecutor’s Office alleges that the owner of the Danish shipping company deposited a significant sum of money in return for the service rendered by the Italian organization. Even though the examination of what actually took place will occur during the court proceedings, the emphasis put upon economic matters objectively seems disproportionate and it distracts from the real issues regarding this matter. In fact, in Italy, the personal responsibility involved in the crime of aiding and abetting illegal immigration does not lie in whether one has acted for financial gain; rather simply, the crime lies in illegally transporting foreigners who have no documents to Italy (Article 12, Consolidated Act on Immigration). If the act is committed for financial gain, then an aggravating factor is taken into account and more severe penalties apply. However, the offence exists even in the case where there is no financial gain. This is exactly how the issue of the “crime of solidarity” was created. Italian law, as it is currently written, brings to the stand both those acting for financial gain and those whose objectives are unselfish.
However, a recent decision by the Court of Appeals (the court which declared Carola Rackete’s arrest unlawful at the beginning of 2020) has finally made clear that Article 12 of the Consolidated Act on Immigration is not absolute nor does it stand alone. It must be interpreted and applied by judges while taking into consideration how it fits within the given legal framework, including the international laws which regulate rescue operations at sea. According to the Court of Appeals, this is the reason why the transport to Italy of shipwrecked people cannot be considered “illegal”- not even when they are undocumented. The duty to aid and rescue human lives at risk is decreed by the Conventions on Maritime Law (i.e. United Nations Convention on the Law of the Sea, International Convention on Maritime Search and Rescue, International Convention for the Safety of Life at Sea) and this duty overrides any state interests regarding border protection.
If this is the case, then let’s turn our attention back to current events. The game of criminal responsibility of Mare Jonio’s crew is not being played on the field of (alleged) monetary profit. But rather, yet again, the crime is the carrying out of the duty of rescue at sea. And, because that duty includes not only the peaceful rescue of shipwrecked people but also the subsequent disembarkation to a safe port, it begs the question whether Mediterranea’s crew’s intervention of taking onboard 27 migrants served to resolve a deadlocked situation that had resulted in the unjustified delay of disembarkment.
According to available information, it seems that the answer to this question is “yes.” The migrants were on board the Etienne for 37 days. Clearly, this was a longer period than what triggered charges for kidnapping in the Gregoretti and Open Arms cases. The physical and psychological wellbeing of the 27 migrants was progressively deteriorating and their repeated requests for help were ignored. Faced with the inaction of the authorities, Mare Jonio’s intervention did nothing other than guarantee that these people were brought to a safe port “in a timely manner” as required by the Convention of Hamburg, which was ratified by Italy. Just as in Rackete’s case, yet again, the carrying out of duty means the crime does not exist. To discuss the aggravating factor of financial gain without discussing aiding and abetting illegal immigration is like planning to furnish a house that does not yet have a roof or walls- it is nonsense. Ragusa’s Public Prosecutor’s Office is definitely aware that this is nonsense. The discussion surrounding this event should also be made aware of this.