The denial of authorisation to proceed against the Italian Minister of the Interior: an alarming combination of violations of international law and unorthodox practices

Intro

On the 23rd of January 2019 the District Prosecution Office of Catania (hereinafter the Prosecution Office) transmitted to the Italian Senate the request for authorisation to proceed (hereinafter ‘the request’) –  issued by the special section of the  Tribunal of Ministers of Catania (hereinafter ‘The Tribunal’) –  against the Italian Minister of the Interior, Mr. Matteo Salvini, on the charge of abduction of 177 migrants, including several unaccompanied minors. The alleged criminal conduct relates to the events occurred between the 20^th and the 25^th of August 2018 when the Italian Coast Guard ship ‘Diciotti’  docked at the Catania’s harbour, right after the rescue operation of 190 migrants in the Maltese SAR (Search and Rescue) area. The criminal conduct consisted in delaying for approximately five days (but it might be resulted in being one week) the disembarkation of the migrants from the ship and, consequently, in deliberately  limiting the personal freedom of them. On 19 February 2019, the Committee for Immunities of the Italian Senate (hereinafter, ‘the Senate Committee’), asked to decide on the matter, denied the authorisation to proceed, concluding that the Minister’s conduct pursued a public interest of the State, thus constituting a political act not susceptible of judicial evaluation.  The Committee will submit the conclusive relation on the matter to the the Parliament with the aim of requesting the Assembly to confirm the vote on  denial.

Notwithstanding the primarily political dimension of the main issue at stake, a number of legal issues also arose from the wording of the request and from the following institutional debate. This post aims at providing for some comments on the content of the request as well as on the issues emerged during the debate in Senate, while waiting for the submission of the conclusive relation to the Assembly.  It will be underlined also how the online consultation on the matter, launched by the Movimento 5 Stelle on its website, Rousseau, represents quite an unorthodox practice in the management of such a sensitive, juridical and not only political, issue.

The facts

The facts leading to the request for authorisation to proceed occurred between the 20^th and the 25^th of August 2018. On 17 of August, the Italian National Coast Guard ship ‘Diciotti’ rescued 190 shipwrecked people from the Maltese SAR area, then escorted 177 migrants (after the execution of the Medevac protocol in Lampedusa in favour of 13 of them) to Catania’s harbour. There the Diciotti waited for communication of the so called POS (Place of Safety), as regulated by the amended International Conventions of the field, namely the 1974 SOLAS Convention (Safety of Life at Sea) and the 1979 SAR Convention (the Hamburg Convention on the International Law of the Search and Rescue in the sea). The communication was given only on the 25th. It must be noted that in Italy the State Authorities in charge of managing the POS communication are the Maritime Rescue Coordination Centre (which issues the request for POS communication), the National Centre of Coordination (which normally transfers the request to the highest Authority), and the Department of Immigration of the Ministry of Interior (which has the duty to identify and communicate the POS without undue delay).

The Prosecution  Office opened investigations against the Minister of the Interior on suspicion of having unlawfully delayed the disembarkation and, consequently, of having deliberately limited the personal freedom of the people on board. Following the Prosecution’s request to discontinue the proceedings, the Tribunal of Ministers of Catania , acting under Article  8, para 1, of  Consitutional Law no. 1/1989, conducted additional investigations and  concluded that the events occurred at Catania’s harbor on the 20^th /25^th of August 2018 should be classified as relevant under Article 605 of the Italian Criminal Code, paras I, II n. 2 and III, (i.e. the crime of abduction), aggravated by the quality of  public officer (the Minister) and by the fact that several victims were unaccompanied minors. Particularly, the Tribunal concluded that there had been an undue delay in the communication of POS by the Department of Immigration between the very first request, issued on the 17^th  of August (right after the rescue of the survivors in the Maltese SAR area), and the complete disembarkation at Catania’s harbor, operated on the 25^th of August ( it is worth to underline that the Diciotti docked at Catania’s harbor on the 20^th and the unaccompanied minors were disembarked on the 22^nd of August) . Therefore, the Tribunal ordered the Prosecution Office of Catania to transmit to the Italian Senate a request for an authorisation to proceed against the Minister, according to the ‘special’ constitutional criminal procedure for crimes committed by the Prime Minister or the Ministers of the Government in performing their duties.

Political choice or Political act?

Besides the verification on the material element of the alleged crime of abduction, the Tribunal’s conclusions offer food for thoughts related to, on the one hand, the examination of the subjective element of the alleged offence  (the mens rea) and, on the other, the definition of a ‘political act’, which might be relevant for a future analysis of the activity of the Italian government.

The Tribunal focused on the reasons grounding the delay with which the Minister of Interior communicated the POS.  As clearly emerging from the text of the additional statement released by the Head  of the Cabinet,the Chief of Police Mr.Matteo  Piantedosi ( p. 28 of the Request) to the Tribunal, the choice of the Minister to postpone the communication of the POS –  and consequently the disembarkation of the people on board – was deliberate, and grounded on the political belief that it was a duty of the Italian Government to raise the awareness of the European Union on the issue. This approach appears in line with the political propaganda of the Minister of the Interior, who for years has grounded the election campaign of his party (La Lega/ex Lega Nord) on the need for the EU to take care of the ‘migration crisis’ knocking at the Italian doors as external border of Europe (as reminded also by the Head of the Cabinet in his statement).

Despite the fact that the Minister of the Interior deliberately did not comply with an international obligation, the decision of not identifying and communicating the POS has been praised by the Ministry’s apparatus (and by the Senate committee as we said) as a legitimate mean to force the EU Member States to apply the voluntary scheme of relocation of migrants. Regardless the undoubtable importance of stepping further in the implementation of the relocation system and the principle of fair sharing of responsibility within the EU, it is nowadays unbearable  that a  Minister of the Interior counters in this debate by failing to fulfil any of the international obligations for the search and the rescue of people at sea. There is not room for a legitimate reason or a valid public order interest to be invoked in preventing a National Coast Guard ship, already docked at the Catania’s harbor, to proceed in disembarking its shipwrecked passengers for more than five days.

The reasoning of the Tribunal dealt with the crucial distinction between ‘political reason’ and ‘political act’, which could be considered as one of the most interesting aspects of the request. The Tribunal labelled the conduct of the Minister of Interior as an unlawful administrative act, based on arguable political reason, and not a strict ‘political act’ (which, according to the doctrine of the  separation of powers, cannot be challenged by the judiciary). While an administrative act has normally effect on individuals’ situation relating to a specific object, a political act issued by the Government is the expression of the majority’s  political agenda and should not prejudice individual rights and guarantees. After this clarification, the Tribunal of Ministers referred the issue related to the evaluation of the ‘political reason’ of such administrative act to the Senate, to which the Minister of Interior belong as a Member of Parliament.

The decision of the Senate Committee: “in the interest” of the State?

On the 19th of February 2019, the Committee on the Immunities of the Senate, after a four sessions debate,  denied the authorisation to proceed requested by the Tribunal of Ministers and decided to submit the motivation of the denial  to the Assembly in a written relation (which will be available in the next few days). From a quick overview on the transcripts of the discussion within the Committee, it clearly emerges that the majority of members hold that the decision of postponing the disembarkation of the ‘Diciotti’ was a unitary act of the Government in protection of the public interest. In this sense, the notes presented by the President of the Council of Ministers, the Deputy President and the Minister of Transportation and Infrastructures (potentially inadmissible as the only  actor legitimate to present any defensive act  and document was the Minister of the Interior and there is no chance to lawfully qualify those notes as documents instead of defensive statements) to support the position of the Minister of the Interior probably wanted to provide evidence of the unitary of the political address in the interest of the State. The President of the Committee underlined how the Prime Minister, on the occasion of the Senate Committee meeting on the 12^th September 2018, claimed that the Government’s approach in the ‘Diciotti case’ was unitary.  In the President’s opinion, this post facto ‘expression of solidarity’ offered by the Prime Minister should be considered as a clear evidence of the public interest which grounded the shared choice of the Minister of Interior to postpone the communication of POS. As already noted, it does not clearly emerge how the deliberate violation of several international obligations, together with the violation of the fundamental rights of individuals and the abandonment of the Coast guard shipmasters and operators by the Government in such a critical situation could be compliant with the pursue of any equivalent public interest values, especially considering the absence of emergencies or official threats for national and international security in that specific situation.

The last staggering aspect of the whole incident relates to the arguable procedure of ‘online vote’ on the Rousseau website, which preceded the vote of the Movimento 5 Stelle members of the Senate Committee on the request issued by the Tribunal of the Ministers. The head of the Movement, on behalf of the members of the Parliament, asked their own electors to express a vote on the opportunity of denying (or accepting) the request for the authorization to proceed against the Minister of Interior. Such practice of continuous externalization of the vote may decrease the role of the members of Parliament, who could use this allegedly ‘super democratic’ tool to abdicate their responsibility as elected representatives in Parliament.

Conclusion

What happened between the 20^th and the 25^th of August 2018 offered to the world a critical imagine of a country deeply fragmented and divided on the management of migration matters. The choice of the minister of the Interior aimed at sending a clear message to EU Member States regarding the controversial matter of the relocation of migrants. Paraphrasing the Minister of Interior, if the EU is not ready to change its migration policy, a Member State has the right to protect its national interest, even at the cost of violating individual guarantees and international obligations. This arguable approach – regardless the outcome of an hypothetical trial against the Minister of the Interior fo the domestic crime of abduction,  which is not the real issue at stake here –  might thus ground a serious responsibility of the State Authorities before the International Community, in addition to not being respectful of  the individuals involved. At the same time, the choice operated by the Movimento 5 Stelle of handling such a sensitive issue in an arguable unorthodox way risks to definitely undermine the already weak respect for the Institution for the democratic principle and for the International obligations before the national and international society.