Italy’s geography has made it one of the easiest destinations for thousands of refugees and economic migrants trying to sail from northern Africa to Europe. The European Union’s Dublin Regulation means that the EU Member State responsible for a refugee’s asylum claim is the first country where the refugee entered the EU.

Barbara Wegelin, Refugee Officer of the IBA Immigration and Nationality Law Committee and an attorney-at-law at Dutch law firm Everaert Advocaten, says Italy has called for a more equal system for some time.

‘It’s clear to everyone from an academic or legal perspective that the only sensible way forward is to have a distributed system,’ Wegelin says, explaining that under such a system each EU Member State would take a proportion of refugees.

Under international law, countries can only turn refugees away if they can be sure the country the refugees are sent back to is safe. Wegelin points out that without disembarking the people aboard the Diciotti, the Italian government would have been unable to establish whether they were refugees, entitled to asylum, or economic migrants, who could be turned away.

‘Even if they were all economic migrants, Italy and all the rest of the EU is still banned from exposing people to torture,’ Wegelin says, pointing to studies that show refugees and migrants are routinely tortured in Libyan camps.

But Italy’s moves to stop those picked up at sea in the Mediterranean from disembarking on Italian soil do not stop people from trying to reach Europe, Wegelin adds. ‘People are desperate. It’s not that people stop getting on boats, it’s that they take far more risks,’ she says.

In August 2018, Sicilian prosecutors began an investigation into Italy’s deputy prime minister and interior minister Matteo Salvini for alleged kidnapping and detention of the migrants, on the basis that he would have been responsible for any decision to prevent the Diciotti’s passengers from disembarking.

Italian criminal lawyers explain that the mechanism is a function of Italy’s history. It stems from the fact that when Italy’s Constitution was drawn up in 1947 it had the intention of protecting dissenting voices from overweening power. ‘The authorisation to proceed had been conceived to protect politicians from invasion of judicial power,’ says one Italian criminal lawyer.

The vote to block the prosecution was supported by the Five Star Movement (M5S), the coalition partner of Salvini’s Lega Nord party, despite previously supporting the abolition of immunity for elected politicians. M5S leader Luigi de Maio argued that if the minister had been responsible then the whole Italian government was, in fact, responsible for detention of the migrants.

Interestingly, M5S party members were asked to vote online on whether the case should proceed. The vote guided M5S senators sitting on the constitutional committee, which in February recommended the blocking of Salvini’s prosecution.

The blocking prompted criticism by several parties. The International Commission of Jurists (ICJ) was among those speaking out ahead of the Senate vote. ‘The decision on investigation of gross human rights violations such as mass and arbitrary deprivation of liberty should not be subject to political scrutiny but be left to the assessment of the judiciary,’ said ICJ senior legal adviser Massimo Frigo.

‘By having a political body deciding on the authority to proceed in a criminal offence, that, in its own nature is about the abuse of power, means that a minister can act beyond the law if he gets political clearance from parliament,’ says Frigo.

Not everyone agrees, however. Italian criminal lawyers interviewed by Global Insight said they felt the Constitution had been followed, and that people were forgetting their history in criticising the way the vote had gone. Cases approved in the past have involved bribery, fraud and defamation.

One criminal lawyer voiced concern that Article 96 might now be in danger of being viewed as a ‘trick’ to avoid prosecution, taking the view that, if one respects the original design of the Article, the blocking of the trial ‘is 100 per cent in line with the rule of law according to the Italian Constitution.