Italy: Minister Salvini’s statements are a threat to judiciary’s independence

The ICJ called today on the Italian Government to reject the incendiary statements issued by Matteo Salvini, Vice-President of the Council of Ministers and Minister of Interior, calling for the “reform” of the judiciary after a court issued a judgement with which he did not agree.

On 2 and 3 July, Minister Salvini issued a series of press statements and tweets that accused a judge in Agrigento of having made a “political judgment” for having ordered the release of the captain of the rescue boat SeaWatch3, Carola Rackete.

She is alleged to have rammed a boat of the law enforcement officers of the Guardia di Finanza in an effort to rescue 53 migrants stranded at sea for more than two weeks.

Minister Salvini followed his complaints with a direct request “to reform the judiciary, select and promote those who administer it in Italy and change the criteria of appointment, because this is not the justice that is useful for a country that wants to grow.”

“The declarations by Minister Salvini are unbecoming of a representative of an Executive and constitute a direct threat to the independence of the Italian judiciary” said Massimo Frigo, Senior Legal Adviser of the ICJ Europe Programme.

“Calling for a reform of the system of appointments and dismissal of judges in the wake of pernicious accusations of “politicization” are a clear threat to the independence of the judiciary and to any judge that would rule against the wishes of Mr Salvini,” he added.

“The Italian Government should publicly reject the threats by Matteo Salvini and ensure that any justice reform is fully in compliance with international and national constitutional standards on the independence of the judiciary”, said Frigo.

The ICJ emphasizes that international standards on the independence of the judiciary forbid such inappropriate interference with judicial process by the exective.

In that connection, the Committee of Ministers of the Council of Europe, which includes Italy, has affirmed that “[i]f commenting on judges’ decisions, the executive and legislative powers should avoid criticism that would undermine the independence of or public confidence in the judiciary. They should also avoid actions which may call into question their willingness to abide by judges’ decisions, other than stating their intention to appeal.”

On Twitter, Mr Salvini has also issued declarations that undermine the right to presumption of innocence under articles 14.2 ICCPR and 6.2 ICCPR by calling Carola Rackete an “outlaw” and a “criminal” before and after the ruling of the judge on release.

The ICJ has informed the UN Special Rapporteur on the independence of judges and lawyers of the situation.

Background

On 2 July 2019, the judge for preliminary investigations (Giudice per le Indagini Preliminari – G.I.P.) of Agrigento, Sicily, Italy – i.e. the judge competent under Italian criminal procedure law to decide on the lawfulness of one’s pre-trial detention – ruled that the detention of Carola Rackete, captain of the boat SeaWatch3, was unlawful and ordered her immediate release.

The judge based her decision on the Italian Constitution that dictates the primacy of international law standards over national law. Following this principle, she found that the criminal offences of which Carola Rackete was charged could not stand.

She was accused of disregarding the orders of the Italian law enforcement officers (Guardia di Finanza) not to disembark at Lampedusa (Sicily) harbour and to have hit with her boat the boat of the Guardia di Finanza that was standing between the SeaWatch3 and the point of disembarkment. Carola Rackete held that she was acting upon her duty to rescue and disembark the people on her boat and that there was urgency to do so.

With regard to the criminal charge of “resistance or violence against a military vessel” (article 1100 of the Navigation Code), the judge found it inapplicable because the boat concerned could not be considered a “military vessel”. On the merits of the criminal offence of “resistance to a public officer under article 337 of the Criminal Code, the judge ruled that the clause of exclusion of criminal responsibility of “implementation of a duty” provided by law (article 51 Criminal Code) did apply and therefore that Carola Rackete could not hold any criminal responsibility. The duty to implement was identified as the duty of rescue at sea that international maritime law foresees for all captains of maritime vessels.

The judge ruled that such duty has primacy in Italian law and further found that the legal provision under which the Minister of Interior, Matteo Salvini, ordered the prohibition of disembarkment on Lampedusa (article 11-ter of d.lgs. 286/98, introduced by Law Decree 53/2019, the so-called “Salvini Decree-bis”) had to respect international law as envisaged by the provision itself.

Carola Rackete remains under investigation for facilitation of irregular migration under a separate criminal proceeding.

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