On the Open Arms case, “l‘illegitimacy of the deprivation of personal liberty is demonstratedeven indirectly, from the reactions of the various authorities involved in the affair who tried, each according to their own area of competence, to urge the interruption of that unlawful situation by the very person who had generated it, namely the Minister of the Interior. Thus, the Coast Guard, thus the Prime Minister, thus the Ministers Trenta and Moavero, thus the Juvenile Court and the relevant Public Prosecutor’s Office, not to mention the heartfelt interventions of the Guarantor of the rights of prisoners and the Guarantor of childhood and adolescence”. This is what we read in the Memorandum of the Palermo Public Prosecutor’s Office filed at the Open Arms trial against Matteo Salvinifor whom the prosecutors have requested 6 years in prison for kidnapping and refusal to perform official duties.
“The undoubted illegitimate conduct of the accused has therefore given rise to the equally undoubted and illegitimate deprivation of personal liberty of 147 people, inflicted in violation of specific primary rules, not justified by the existence of legal rules that could order or permit it, and indeed carried out by someone who held a position of guarantee (typical of omissions) deriving from the attribution of public powers”, say the prosecutors.
“Port Authority caught in a vice between rescue and ministry”
“Particularly eloquent is the state of enormous difficulty of the Port Authority which found itself caught in the grip between the duty to save lives at sea and that of respecting the ministerial denial of the POS”, we read further.
“Indeed, in the face of worsening weather and sea conditions on 14 August 2019 and despite never having formally assumed the coordination of rescue operations, it had to and wanted to allow the Open Arms (already legitimately arrived in national waters) to dock near the coast of Lampedusa as the “only safety condition to avoid tragedies”, and this because, despite the extreme dangerousness of the situation, that POS continued not to be indicated – we read in the memo – And, given the dramatic nature of the situation, IMRCC Rome had to underline, in transmitting to the Ministry of the Interior the request for a POS, (re)advanced by Open Arms, that “as far as this IMRCC is concerned there are no impediments of any kind, please make known with all further kind urgency the intentions of this NCC regarding the matter in question” to highlight that it was not possible to continue to evade the obligation to issue the POS by leaving the Coast Guard with its back to the wall.
For prosecutors Marzia Sabella, Calogero Ferrara and Giorgia Righi, “equally indicative is the expedient that the Port Authority tried to resort to, in an attempt to find a solution through Medevac (under the jurisdiction of the Ministry of Health and the Ministry of Infrastructure and Transport), when, despite being aware of the impossibility of carrying out individual medical visits for each migrant, with an email dated August 19, at 3:35 pm, it requested the transmission of an individual medical report for each of the shipwrecked people”.
For the prosecutors “prolongation of ministerial inertia”
And more. For the magistrates of the Open Arms trial in August 2019, the “continuation of ministerial inertia” on the part of the deputy prime minister was recorded. Not only that. For the prosecutors, as they write in the brief filed with the registry after the request for six years of prison, “the Open Arms ship could not be considered a temporary safe place, as the minimum safety conditions no longer existed: both because the vessel was completely inadequate to accommodate that number of people, both because the crew and passengers, after more than two weeks at sea, were exhausted, both because the changing weather conditions had shown that the vessel could barely cope with further difficulties, and because those people lived on board in inhumane conditions”.
“Several witnesses, in fact, especially those who boarded the Open Arms in various capacities, have provided the Court with a particularly bleak and alarming picture. Similarly, other witnesses with specific expertise in maritime safety have ruled out that the vessel could technically be defined as a temporary POS, thus confirming, at least implicitly, that there was a need to proceed with the disembarkation in the shortest time possible”, say the prosecutors in the brief filed with the registry.
“Salvini noticed an unmanageable situation on board”
“That the situation on board the Open Arms was increasingly unmanageable was certainly known to the defendant” Matteo Salvini “also in consideration of the continuous emails forwarded by Imrcc Roma to the Viminale (and brought almost in real time to the attention of the Minister of the Interior), with which the commander Creus and the head of mission Montes requested the urgent indication of a POS in the face of the worsening of the hygienic-sanitary conditions and, above all, of the psycho-physical health conditions of the migrants, increasingly tried and ready to throw themselves into the water, in desperation, to swim to Lampedusa”. This is what can still be read in the report of the Palermo Public Prosecutor’s Office.
“The state of physical and mental prostration of the shipwrecked people rescued by the Open Arms was also confirmed by the reports drawn up by the various doctors who came on board, by the Emergency psychologist, by the USMAF and CISOM personnel, all promptly transmitted by IMRCC to the Cabinet of the Minister of the Interior”, say the prosecutors.
“Drastic deterioration on board, harmful for shipwrecked people”
“The situation on board the Open Arms was constantly and drastically worsening, both in terms of health and hygiene conditions, as ascertained during several inspections and site visits by health workers, consultants and law enforcement, and in terms of safety and public order, considering that numerous shipwrecked people had thrown themselves into the sea, in a vain attempt to swim to dry land, so much so as to induce the Agrigento Public Prosecutor’s Office to issue an emergency seizure order for the ship – precisely considering the existence of the crime in question, also recognized by the GIP during the validation of the precautionary measure which, moreover, underlined the existence of the crime of kidnapping not found in that measure – in order to interrupt the worsening of the crime and its consequences, thus allowing the disembarkation of the people on board”, the words of the prosecutors.
“It is therefore extremely evident that the prolongation of the stay on the Open Arms of the people rescued in the three rescue operations was further damaging to the health (individual and collective, physical and mental) of all the people present there (including the crew members, who were busy managing a complicated situation marked by a worsening of the reasons for tension, which put their psychophysical health to the test, in addition to representing a concrete danger to safety),” say the prosecutors Marzia Sabella, Giorgia Righi and Calogero Ferrara.
“The rescue brought to some migrants with the implementation of the various Medevacs had certainly not exhausted the needs of protection of the physical and mental health of the people on board the Open Arms. As ascertained by the numerous doctors and psychologists who boarded the ship, in fact, the migrants were in precarious hygienic conditions, as well as extreme physical and mental suffering”, the magistrates write.
“No concrete risk to public safety”
Furthermore, according to the prosecutors, “there was no real and concrete danger to public safety that would make the refusal of the POS and the consequent indiscriminate and collective detention of a plurality of shipwrecked people rescued at sea legally permissible”.
The magistrates recall the statements of former Prime Minister Giuseppe Conte and former Ministers Trenta and Toninelli. The latter “clarified that no specific risk to national security had been presented to them with reference to the Open Arms affair and that, in any case, it would have been appropriate to allow all the migrants to disembark in order to proceed with their identification and carry out all the checks”. “Nor did any technical reasons emerge that absolutely prevented the migrants from disembarking on board the Open Arms at the port of Lampedusa, or at another easily reachable port. In particular, the situation of the presences inside the “hotspot” center of Lampedusa in the period from 14 to 20 August 2019, did not appear to be objectively an obstacle to the reception of the migrants from the Open Arms, as can be seen from the presence data acquired in the documents and from the statements of numerous witnesses”.
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