Magistrate throws out Repubblika complaint of homicide in migrant rescue

Malta migrant rescue and P52 inquiry: Magistrate says government honoured international obligations despite return of migrant boat to Libya

AFM soldiers from patrol boat P52 allegedly sabotaged a dinghy carrying migrants
AFM soldiers from patrol boat P52 allegedly sabotaged a dinghy carrying migrants

A magistrate has thrown out a criminal complaint filed by the NGO Repubblika accusing Prime Minister Robert Abela and AFM commander Jeffrey Curmi, as well as the AFM’s P52 crew of sabotaging a migrant vessel.

The Maltese government has published the entire 491-page magisterial inquiry by Magistrate Joe Mifsud into claims that the Maltese army sabotaged a migrant boat.

In a government statement, the Office of the Prime Minister said the report threw out allegations of voluntary homicide by the Prime Minister, the AFM commander, and the P52 crew.

The inquiry was launched after NGO Repubblika filed a criminal complaint after a boat was taken back to Libya by a commercial vessel, with five migrants confirmed dead and seven others missing. The complaint also accused Prime Minister Robert Abela and AFM commander Jeffrey Curmi, as well as the AFM’s P52 crew that first assisted the boat, of causing their deaths.

According to the NGO Alarm Phone, the Maltese authorities deliberately ignored a distress call and then coordinated the pick-up of a boatload of 63 people who were returned to Libya.

Later, Repubblika conceded that the migrant manning the outboard engine on the dinghy was directed by a P52 crew member to pull what is known as a ‘kill switch’ to shut off the engine – a standard procedure in rescues of this type to ensure the safety of all parties involved – and not that the engine was deliberately damaged.

The other issue was whether the refusal to take in the other boat in distress in Maltese SAR responsibilities makes Malta guilty of an act of refoulement, for the AFM ultimately coordinated the intervention of a commercial vessel to take the boat back to Libya. Since the boat potentially carried asylum seekers, the act of returning the migrants to the place they were fleeing from would be illegal in the eyes of international law.

Secret pushback? Timeline of the AFM’s rescue coordination of the returned migrant boat

Magistrate Joe Mifsud found no grounds for criminal action against the Prime Minister or the AFM commander in a criminal inquiry following a report filed by NGO Repubblika, in which it accused the AFM of sabotaging a vessel carrying migrants at sea.

Repubblika alleged homicide after the international press reported that the crew of AFM patrol boat P52 had boarded a dinghy carrying migrants and cut the cables of the vessel’s motor. The government eventually ordered the migrants aboard the dinghy to be brought to shore, where they were taken into quarantine.

In his conclusions to the voluminous report, the magistrate notes that the closure of Malta’s ports because of the coronavirus pandemic was in line with previously adopted policies, which were entirely in conformity with Malta’s rights under international law. 

He quoted EU Commissioner Ylva Johansson as saying on May 8 that “we will have to gradually put an end to restrictions on free movement and internal border controls, before we can lift entry restrictions at the external borders and guarantee access to the EU for third-country nationals.”

The magistrate’s report also quotes from a UN document which describes migrants in transit as being “at high risk of contracting the virus” and that “basic public health measures, such as social distancing, hand hygiene and self-isolation may also be very difficult [for them] to observe.”

Mifsud also said the human smuggling industry was undergoing rapid expansion in Libya, quoting the UNHCR as saying that smuggling networks are “dynamic, in constant evolution and, it would appear, increasingly professional.”

“Malta could not renounce its international obligations to coordinate rescue,” Mifsud said, noting that the government had fulfilled this obligation. “But the international community must also step up to its responsibilities, which are not simply those of creating laws and treaties… Real burden sharing and not only on paper. Real solidarity, not only in the declarations of principles of treaties and laws.”

Rescue NGO Alarm Phone had refused to allow the court to hear recordings of the distress calls, saying that it would identify the person making the call. This excuse was not accepted by the court, which said that this did not help to uncover the truth. Alarm Phone had later submitted a transcript of the calls to the court.

“The findings of the inquiry contrasted greatly with that which Alarm Phone alleged,” the inquiry noted, referring to technical shortcomings in court documents presented by Repubblika and the fact that they had not sought to clarify matters with the AFM, the Prime Minister or the source of the tweets that first reported the allegations. “Beyond this case, it is not right how in this country we have ended up with everyone saying what they want to and nobody answering for their actions and words when it emerges that it was false or fake news.”

The magistrate even rued the revocation of a section of the Criminal Code which imposed imprisonment or a fine for those who intentionally spread malicious rumours. “The allegations were not found to be founded on evidence, neither eyewitness or documentary.”

Circumstantial evidence was not equivocal, said the magistrate, and concluded that the inquiry had not established that the crew of P52 had carried out an attempted murder or that Prime Minister Abela and Brigadier Curmi could have been involved in a murder.

From the report, it also emerges that former OPM official Neville Gafà, a one-time unofficial envoy to Libya on migration, was warned not to give comments or interviews about what he told the inquiry. “It did not emerge from the evidence gathered, that Gafà coordinated a rescue in this case,” the magistrate said.

Mifsud noted with dismay the fact that neither Alarm Phone or those who presented the criminal complaints had mentioned the role of traffickers putting out migrant at sea, saying these had to be held responsible for their criminal actions.

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