This article originates from the experimental research thesis conducted by Avv. Andrea Aloi at the LABANOF (Laboratory of Anthropology and Forensic Odontology - Forensic Medicine Section) of the University of Milan, supervised by Prof. Cristina Cattaneo.
The Shipwreck
The date of April 18, 2015, marks one of the most tragic shipwrecks known to us: a 23-meter Eritrean-flagged fishing boat sank about 77 miles north of the Libyan coast. There were 28 survivors, 24 confirmed dead, and, according to initial estimates, between 700 and 900 missing. The news shook public opinion and prompted the Italian Government to commit to a massive operation for the recovery of the bodies and the wreck: on May 7, 2015, a naval formation sent by the Italian Navy, consisting of a frigate and two minehunters, located the hull on the seabed at a depth of 370 meters. On the following June 10, recovery operations began with the participation of the Italian Navy, the Fire Brigade (Vigili del Fuoco), and the Military Red Cross.
Parallel to the recovery operations, the victim identification activity began, managed by the Office of the Extraordinary Commissioner for Missing Persons, which was assisted by an operational unit coordinated by the University of Milan and composed of experts from the Forensic Medicine Institutes of the same university and those of Palermo, Catania, and Messina.
The Identification of Victims: Why is it Important?
A question might arise at this point. Why identify the victims of the shipwreck? In the absence of an active role by the international community, which would have been both necessary and right, Italy took on an activity that not only attests to this country’s long and deep-rooted tradition in protecting the dignity of the dead but also responds to the concrete and pressing needs of their families. Giving a name to each shipwreck victim, besides allowing their loved ones to process their grief, enables the latter to claim legal rights and social recognition that would otherwise be denied. One only needs to think of the right to family reunification for the victims’ orphans, the capacity to inherit, and the social stigma placed in many African countries on those who are considered abandoned. These are often vulnerable individuals: young orphans and widows. Without identification, the ultimate victims of the shipwreck would be far more than those the sea claimed.
An Incomplete Legal Framework
The recovery of the bodies of the victims of the April 18, 2015 shipwreck was the result of a political decision by the Italian Government, implemented with the deployment of personnel and resources from the Armed Forces and the involvement of several academic entities based on specific Memoranda of Understanding. The Catania Public Prosecutor’s Office, which was proceeding concerning the crimes of negligent shipwreck, multiple negligent homicide, and aiding and abetting illegal immigration against two alleged smugglers arrested shortly after the tragedy, had not in fact deemed it necessary to order the recovery and identification of the victims itself because, as the Catania Prosecutor declared, such activities “would not have been useful to the investigations” and, in any case, “it would not have been possible to order them because the choices [of the Prosecutor’s Office] are strictly procedural choices.” This was, in truth, a legitimate position in light of the law then in force, but one that must be compared with a different determination made a few years earlier by another Sicilian Prosecutor’s Office: in 2013, following a shipwreck that had claimed another sad load of lives, the Agrigento Prosecutor’s Office had ordered the recovery of the bodies “to proceed with the identification of the corpses, collect their DNA and compare it with that of their relatives” as an act “due because the victims’ families have the right to file a civil claim (costituzione di parte civile).” The contradiction between the two Prosecutor’s Offices—and at the same time the legitimacy of their respective decisions—is explained in light of the normative and systematic gaps resulting from an ongoing process of transformation in criminal law.
The Victim in Criminal Law
A premise is needed here: the history of criminal law is the history of the offender, of their removal from private vengeance, and the exclusive attribution of the sanctioning power to the State. The entire criminal process has been shaped around the offender; over the centuries, the prevalence of liberal-guarantist principles has led to the marginalization of the victim, relegated to a mere walk-on role in a process where the offender is the sole protagonist. Theories of punishment have changed accordingly; the retributive theory, which more than any other weighed the harm to the victim, has been replaced by the general and special prevention theories: the purpose of punishment is therefore to punish the offender to affirm the certainty of the law, to re-educate them, and if this is not possible, to neutralize them. In all this, thanks to the fear that justice might turn into revenge, the victim has been forgotten. The decision of the Catania Prosecutor’s Office, therefore, falls within this doctrinal current and is the offspring of a deep-rooted legal tradition: if the evidence collected in the case files allows the prosecution to sustain the accusation against the suspect, there is no need to recover the victims’ bodies and give them a name. Conversely—for some time now—a new procedural humanism has been gradually affirming itself, in which the traditional emotional sterilization of the process gives way to an increased recognition of the victim’s role. The EU legislator championed this renewed sensitivity with Directive 2012/29/EU, establishing minimum standards on the rights, support, and protection of victims of crime. Consideration number 9 states: “Crime is not only a wrong against society but also a violation of victims’ individual rights.” And Article 1 of the same directive: “Member States shall ensure that victims are recognized and treated in a respectful, sensitive, personalized, professional and non-discriminatory manner […]” (bolding by the current author). The directive was transposed into domestic law with Leg. Dec. 212/2015, which reformed the Code of Criminal Procedure by introducing Article 90-bis, a true charter of victims’ rights (or their family members, if the victim died as a result of the crime, Article 90 c.p.p.). Unfortunately, as often happens, the transposition of the directive did not occur with an organic reform of the procedural architecture but with targeted interventions that have, in fact, multiplied the systematic anomalies. New participatory spaces have been recognized for the victim in criminal proceedings, yet nothing has been expressly provided for their identification: the latter appears, however, not only a necessary prerequisite for the attribution of the rights mentioned but also imposed by the legal necessity of an interpretation conforming to the dictates of the directive itself. The decision of the Agrigento Prosecutor’s Office fits into this context, and although it temporally preceded the transposition of the directive and despite the reference to civil claimants instead of injured parties, it seems to have conformed to it.
The Crime of Aiding and Abetting Illegal Immigration
While it is true that the two opposing legal references substantiate the different decisions of the Prosecutor’s Offices, a simple consideration regarding the structure of the crime charged against the suspects could have induced the Catania Prosecutor’s Office also to order the recovery of the victims’ bodies. The crime of aiding and abetting illegal immigration under Article 12, paragraph 3, letter B of Leg. Dec. 286/1998 provides, for anyone who facilitates the illegal entry of foreigners into the State’s territory by exposing them to danger to their life or safety, the penalty of imprisonment “and a fine of 15,000 euros for each person [transported].” The number of victims therefore becomes a constitutive element of the crime, or at least a necessary element for determining the penalty associated with it, such that the investigative activities could have included, if not the identification, at least the recovery and counting of the victims.
System Limits and Future Prospects
Such was the legal context in which the Italian Government acted: in the absence of a Prosecutor’s initiative, the Government decided on the recovery and identification of the bodies; a decision in line with the most recent transformation of criminal law at the domestic and European levels. However, it must be noted that, although the system of protections just outlined undoubtedly constitutes clear progress in guaranteeing shipwreck victims’ rights, this system suffers from a double limitation: on the one hand, it is only valid within the scope of criminal proceedings, and on the other, the technical time required for victim identification is poorly reconciled with the process’s need for speed. The first point, in particular, appears critical: Italian jurisdiction over the 2015 shipwreck, which occurred in extraterritorial waters, was deemed to exist based on the connection with the crime of aiding and abetting illegal immigration, whose terminal conduct—the survivors’ landing ashore—took place in the State’s territory (it is irrelevant that the survivors landed due to the rescuers’ action, as their intervention was not only foreseen but actively desired and provoked). In cases where the shipwreck occurred in extraterritorial waters and there were no survivors, there would therefore be a lack of Italian jurisdiction, with the consequence that the victims would be abandoned in a kind of legal “limbo,” perpetually awaiting justice. The problem should therefore be addressed at the international, or at least EU, level: after all, numerous principles of international humanitarian law and international human rights law all converge toward the need to provide adequate protection to shipwreck victims in the Mediterranean and their families. However, a clear application framework is lacking, and, even more fundamentally, the political will of the members of the international community is absent.