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.
