The following is based on a communication written by the UN Special Rapporteur on Human Rights Defenders and other UN experts to the Government of Italy on 19 May 2022. The communication remained confidential for 60 days before being made public, giving the Government time to reply. The Government sent a response on 14 June 2022.
This is a shorter version of the original communication.
UPDATE: since this communication was written, the four human rights defenders implicated in this case have been acquitted.
Topic: criminal prosecution of three human rights defenders for providing assistance to migrants and asylum seekers.
Messrs. Afewerki Gebremedhn, Abraha Ghebrehiwet and Hintsa Mebrahtom are Eritrean men living in Italy, where they have been granted asylum. Concerns in relation to the criminalization of human rights defenders working in support of the human rights of people on the move and the situation of migrants and asylum seekers in Italy and at its borders have been raised with the Italian Government by multiple Special Procedures mandate holders on several previous occasions (see, most recently, ITA 2/2021, ITA 1/2021, ITA 7/2020, ITA 5/2020 and ITA 6/2019). While we welcome the Government’s engagement on these issues through its responses to these communications, we remain concerned about the issue in light of the below-detailed allegations.
On 14 March 2016, Messers. Afewerki Gebremedhn, Abraha Ghebrehiwet and Hintsa Mebrahtom, along with three other Eritrean men, were arrested on suspicion of being members of an international people smuggling organisation. They were charged with criminal conspiracy to facilitate illegal immigration under article 416 of the Italian Criminal Code and article 12 of the Consolidated Immigration Act, 1998. The accusations against these men stemmed from acts of assistance towards other Eritreans, which they had performed between May 2014 and October 2015. These acts included giving advice on how to use public transport, helping the migrants and asylum seekers buy tickets for buses or trains, buying them clothes, food, phones and sim cards, as well as hosting recently arrived migrants and asylum seekers and helping them find places to stay. The three human rights defenders were assisting migrants who were newly arrived in Italy at the time and were seeking asylum. Two human rights defenders were also charged with having illegally transferred money, in relation to their use of the hawala system.
For these actions, the prosecutor requested sentences of between 12 and 14 years for each of the three men and fines of up to €300,000, along with their preventive detention on the basis of the seriousness of the charges. Subsequent to their arrest, the men were placed in preventive detention in Rebibbia prison in Rome, where they were held since March 2016 until 22 December 2017.
The case was opened following an investigation involving the Italian Anti- Mafia Directorate in Rome and the Italian Coastguard into an alleged international organisation of people smugglers claimed by to be involved in organising the journeys of people from Eritrea to Europe, via Italy. Proposed evidence against the accused men was collected through surveillance conducted in the course of this investigation, including by means of wiretapping.
In the first instance, Messers. Gebremedhn, Ghebrehiwet and Mebrahtom, along with one of the other men on trial, were convicted by the Rome Criminal Court of the charge of aiding and abetting illegal immigration, under article 12, paragraphs 1 and 3 of the Consolidated Immigration Act, and sentenced to between 2 and 4 years imprisonment, along with fines of up to €125,000. The other two men involved in the case were acquitted. The decision was based on the Court’s interpretation of the acts performed by the men as having been aimed at aiding the migrants and asylum seekers to cross Italy’s borders into another State, an offence punishable under the Consolidated Immigration Act without a requisite profit motive. The Court dismissed the charge that the men had been involved in a criminal conspiracy due to the lack of evidence provided by the prosecution to prove the existence of a criminal organisation or any profit or gain the men may have derived from the material acts forming the substance of the case against them. The charges relating to the illicit transfer of money were also dismissed, with the Court deeming there to be no evidence to support them.
The decision in the first instance was appealed by the defence to the Court of Appeal of Rome, who ruled on the case on the 26 May 2021, reducing the sentence of the court of first instance while nonetheless upholding the interpretation of the defendants’ conduct as “other acts” aimed at facilitating the entry of the people they helped into another State, as provided for in article 12, paragraphs 1 and 3, of the Consolidated Immigration Act. This decision was appealed by the defence to the Court of Cassation, with a decision expected on the 20 May 2022.
As of the time of writing, Messers. Gebremedhn, Ghebrehiwet and Mebrahtom are at liberty. They have been assisted by a legal team throughout the proceedings against them.
In the communication, we underlined our concern at the prosecution of Messers. Gebremedhn, Ghebrehiwet and Mebrahtom, whose pursuit by the State would appear to represent the criminalisation of acts of solidarity and assistance towards migrants and asylum seekers through the misapplication of elements of the national legal framework designed, in principle, to regulate migration and combat trafficking in persons. In addition, we would like to express our concern as to the extended period of pre-trial detention to which Messers. Gebremedhn, Ghebrehiwet and Mebrahtom were subjected.
We express these concerns recalling that this is not the first occasion upon which Special Procedures mandate holders have communicated with the Italian Government in connection with the charge of aiding and abetting illegal migration being pressed against human rights defenders following investigations carried out on the basis of approaches used to tackle organised crime and including the extensive use of surveillance powers (see ITA 1/2021 and ITA 5/2020). We fear that this investigatory approach has contributed to the conflation of humanitarian acts of solidarity aimed at defending, promoting and enabling the fulfilment of the human rights of migrants, including the right to seek asylum, with criminal activity. We further state our concern that the result of this approach has been to repress the legitimate work of human rights defenders and to deter individuals from engaging in acts of solidarity with migrants and asylum seekers.
In this regard, we wish to stress the crucial role played by human rights defenders undertaking humanitarian action aimed at preventing and alleviating suffering of migrants, including through the prevision of shelter, food, medical care and transportation, and wish to underline the negative human rights impacts of efforts to deter the provision of such assistance. States must refrain from criminalizing or otherwise penalizing either the provision of support or assistance to migrants or the
organizations or individuals who carry out such essential activities.