The Wrong Catch

The refugees have just been pulled from the waters of the central Mediterranean when Italian coast guard investigators pick out a handful of them for questioning. As the rescue ship steams toward Sicily, the chosen refugees are taken aside and interviewed, returning after about an hour now labeled with a plastic wristband. Some say “witness,” others, “suspect.” Usually, two of them say “smuggler.”

When the refugees disembark at port in Sicily, those with wristbands are handed off to Italian police, who will interview them again and arrest the suspected smugglers, in an effort to break up the criminal networks that have brought over 85,000 people to Italy this year. Regardless of whether rescued by the coast guard or ships run by NGOs, every boatload of refugees that arrives in Sicily goes through a similar process.

The Italian press cheer these operations as a key part of the fight against illegal immigration, lionizing figures like Carlo Parini, a former Mafia investigator who is now a top anti-human trafficking police officer in Italy. Parini leads a squad of judicial police in the province of Siracusa in eastern Sicily, one of several working under different provincial prosecutors, and his aggressive style has earned him the nickname “the smuggler hunter.”

There is only one problem: The vast majority of people arrested and convicted by these police are not smugglers. Almost 1,400 people are currently being held in Italian prisons merely for driving a rubber boat or holding a compass. Most of them paid smugglers in Libya for passage to Europe and were forced to pilot the boat, often at gunpoint.

In Italian, they are called “scafisti” — literally, boat drivers. Linguistically, there’s a difference between these people and the “trafficanti” — human traffickers. Legally there’s a difference too: Most boat drivers are charged with “favoreggiamento,” or “facilitating” illegal migration. It’s the lowest level smuggling charge you can get in Italy. According to the Italian Ministry of Justice, more than 1,000 people accused of favoreggiamento have been detained each year since 2014.

Yet many say that these charges, built on hasty interviews, have little to do with catching actual criminals and end up sending innocent people to prison. In interviews with refugees, legal observers, and local journalists in Sicily, The Intercept found widespread concerns about the legitimacy of scafisti prosecutions. Charges are often leveled with paltry evidence and dubious witness statements, and they rarely take into account violence and coercion in the smuggling trade.

According to Sicilian lawyer and researcher Paola Ottaviano, most people accused of favoreggiamento have no connection to Libyan smuggling rings. “The majority we’ve seen, around 80 percent, have paid to cross just like anyone else,” she said. “[Smugglers] just point a gun at them and say, ‘You’re driving.’”

Gigi Modica, a criminal judge in Palermo who has taken an unusual stance in rejecting some of the scafisti cases, told The Intercept that judicial police “are just satisfied listening to two, three, or four people who tell who was the driver.” As for the accused, “they do not go deeper and determine if his choice was a free choice.”

“They just ask two questions,” Modica said. “Who was the driver, and who was the compass-man? That’s it.”

Ousaineu Joof was 15 years old when Italian police put him in jail for a year for allegedly driving a rubber boat. Tall and lanky, Joof speaks English articulately with a heavy stutter, especially when he remembers the more violent parts of his story. In 2015, he fled his home in the West African nation of Gambia after his father kicked him out of his house and threatened to kill him; Joof says it was because he had gone to a religious ceremony with a friend of a different religion. First, he fled to stay with family in nearby Senegal, before taking a bus to Agadez, a city in Niger. From there, he paid smugglers to take him across the border into Libya and to the Mediterranean coast to board a boat for Europe.

Joof remembers sitting in the center of the 35-foot rubber boat that would take him toward Italy. It was 1 a.m. and the smugglers were loading close to 100 people aboard. During the voyage, Joof says he was vomiting for hours. When the boat was rescued in international waters by the Italian coast guard, they brought him directly to hospital. After three days there, the police took him to prison. He’d been tagged with a green wristband.

Joof was charged with favoreggiamento based on the statements of three witnesses, all of whom had made the journey from Libya that same day. According to Joof’s lawyer, the judicial police had asked them the same two questions that Judge Modica mentioned: Who drove, and who held the compass? The witnesses had pointed to Joof.

Joof denies that he drove. “They told me I was accused of being the boat’s captain,” he told The Intercept in an interview in the center for underage asylum-seekers where he now lives, in a small town outside Palermo. “I told them, ‘No, I paid my money to come here.’ I asked them to see the evidence that I was a captain. And since 2015, they haven’t shown me any evidence that I’m the one who drove the boat.”

“For every 100 to 150 people that arrive, they arrest two people,” said Ottaviano, the Sicilian researcher. Ottaviano doubts the veracity of many of the witness statements, which are often taken from traumatized shipwreck survivors who just arrived in Europe with pending asylum applications and every incentive to cooperate.

This is compounded when the questioning is done on boats, just after a rescue; Frontex, the border agency of the European Union, which cooperates with the Italian investigations, also said that “the conditions on board the vessel are not appropriate for interviews.” Still, a spokesperson for the agency also admitted that, after a rescue, officers aboard Frontex vessels do refer people they consider “persons of interest” to the Italian authorities. The spokesperson refused to clarify whether those people were accused of a crime, or what information led to their selection.

Ottaviano says that in Pozzallo, a port in the southeast of the island, “for every disembarkation, they find two, three, four migrants, often from countries where it’s hard to get asylum. The police tell the new arrivals, ‘If you tell me who drove the boat, I will give you a permit to stay.’

“The Italian government is looking for any culpable person,” Ottaviano added. “They need to show that they are fighting trafficking and arresting smugglers, even if those people aren’t smugglers.”

Ikukoyi Tamola is originally from Lagos, Nigeria, but fled after being singled out for his political activity. Tamola says that during a political rally he had helped organize, he was shot and left to die. He was in the hospital when he found out that the same people who had shot him had threatened his wife and children, and burned down his house. (He agreed to an interview with The Intercept on the condition that we identify him by a pseudonym.) Sitting in his lawyer’s office in central Catania, on the east coast of Sicily, Tamola shows off the scar from where the bullet entered his chest.

Tamola also spent one year in prison for favoreggiamento; like Ousaineu Joof, he was charged based on the testimony of three others who were rescued at the same time, but unlike Joof, he readily admits that he drove the rubber boat. He says he was forced to at gunpoint.

Tamola says that he paid Libyan smugglers the equivalent of $750 to cross to Italy. After a few days at a safe house near Sabratha, Libya, the smugglers took his group to a beach and lined them up, with automatic rifles pointed. One asked if anyone spoke English. Tamola raised his hand and then instantly regretted it.

The smugglers decided that Tamola would drive the boat. They showed him how to start an outboard motor, and then stopped the motor and told him to start it again. “I told him I don’t know how to do it. All the time, they are pointing the gun to my head, that I should start [the motor],” Tamola remembers, lifting his hands like he’s holding a rifle. Tamola had trouble with it; his arm still hurt from his injuries in Nigeria. “So the man with the gun, he hit me in the stomach, and I fell down. They treat people like animals there,” Tamola said.

Cases like Tamola’s are very common, says Modica, the judge in Palermo. “Probably all, but we can say most” favoreggiamento cases involve someone who was forced to drive, he said. Modica has heard and decided many such cases, and last year, he was the first judge in Italy to recognize that people who are coerced into piloting, often at gunpoint, should not be punished: He used the term “state of necessity.”

“Even though you are breaking the law, you are doing it to save your life,” he said. Putting those people in jail, he says, does nothing to combat smuggling networks. Still, many of Modica’s colleagues do not share his interpretation of the law.

According to Emilio Cintollo, a criminal lawyer in Ragusa, in southeast Sicily, favoreggiamento prosecutions have greatly expanded over the last few years, even as the smuggling trade has changed, and with it, the type of person charged.

Before 2014, Egyptian or Libyan smugglers used large wooden boats that could hold hundreds of people and stood a good chance of reaching Italian waters, unlike the small rubber boats used today. Cintollo says there was always one captain and one navigator in the wooden craft, who were often charged with favoreggiamento for working with the smuggling networks. “They were paid. Both usually admitted in court to doing it for money,” Cintollo said. If anyone drowned or otherwise died on the trip over, the driver and navigator were also typically charged with murder — many people, Cintollo says, are serving life sentences from shipwreck cases.

Since 2014, the smugglers’ tactics have changed. Most people now come over on 35-foot rubber boats, piloted by one of the passengers. The Italian coast guard considers these rubber boats, overfilled and driven by people with no experience, to be in need of rescue by default. They are often rescued in international waters before they even start to sink.

Cintollo says that the punishment now falls on passengers; most of those now charged with favoreggiamento were never part of a smuggling organization. “I’ve defended over 100 scafista cases,” Cintollo said, “and I have never met a scafista that drove for money.”

The punishments for favoreggiamento vary widely. A conviction can lead to a five- to 15-year sentence and a heavy fine, sometimes tens of thousands of euros per person aboard the driver’s boat. But many people up against scafista charges opt for plea bargains or abbreviated proceedings in exchange for shorter prison stays. Cintollo says that alleged scafisti often sign these agreements without fully understanding their implications — something confirmed by interviews with five people convicted of favoreggiamento and their lawyers.

“Many attorneys ask for plea bargains in order to get the quickest release of their clients,” said Fulvio Vassallo, an immigration lawyer and law professor at the University of Palermo. Vassallo explains that in Sicily, plea bargains or abbreviated trials can be a win-win for numbers-oriented prosecutors and defense lawyers alike. The former gets their conviction despite weak evidence, and the latter gets their client out of prison and get paid sooner. (Defense attorneys are paid by the Italian government for each refugee they defend pro bono.)

“In the most serious cases, it can get to the point of a real collusion between prosecutors and defense attorneys, who earn money for giving free legal aid, as long as they don’t make too many problems,” Vassallo said.

But for the refugees convicted, a shorter prison sentence comes with an expulsion order from Italy and an admission of guilt. With a smuggling charge on their record, they will have a more difficult time applying for asylum or other international protections.

Carlo Parini, the “smuggler hunter,” refused multiple interview requests for this article, and his office and that of the Siracusa prosecutor did not respond to questions about their anti-smuggling operations.

I did meet Parini in early 2017 in Augusta, a small commercial port in Siracusa province, when I was reporting on rescue operations aboard the Golfo Azzurro, a ship run by a Spanish NGO. The Golfo was disembarking 250 people they had rescued, and I was taking photos when two plainclothes police officers approached me — Parini and another member of his squad, Mario Carnazza. The two men demanded that I supply them with photos I had shot during the rescue at sea. They explained that they wanted the photos so they could identify the driver of the rubber boat. With that information, the police added, they could find and arrest that person on smuggling charges.

When I refused to supply my photos, Parini and Carnazza confiscated my passport and, against my protests, forced me off the ship and into a nearby office.

In Parini’s portside office, I recognized two men that the NGO had rescued days earlier, sipping juice boxes while police investigators asked them about their journey. They looked terrified.

Parini and Carnazza grilled me for an hour. They threatened to charge me for not collaborating with police (Carnazza told me to cooperate so that I wouldn’t “have problems.”) And yet, their questions had little to do with the rescue: who I was, where I lived, about my family, and about my work. Finally, after about an hour, they returned my passport and let me go. I did not give them any photos.

Before leaving the port, I asked Parini and Carnazza if they thought the men who had driven the rubber boats had anything to do with Libyan smuggling rings. The two police officers just shrugged.

Tamola spent one year and two months in prison while his case crept through the Italian bureaucracy. Joof was in prison for just under a year. In Italy, people who are charged with favoreggiamento are generally kept in prison while their case progresses, and it was only after changing lawyers that Joof and Tamola were able to get out of preventative detention. Both still face trial. Tamola lives in a crowded refugee camp in central Sicily, working odd jobs in the area, and Joof, in the center for minors, is studying to be a chef; he wants to cook Sicilian food. Their cases are due to be decided in the fall.

Both Joof and Tamola have the same complaint about their time in prison. Neither was allowed to call home. Both of their families thought they were dead.

“The only pain Italy caused for me, they did not allow me to make a call. For one year and two months,” Tamola said.

“I never talked to my family after I entered in the prison,” echoed Joof. “Every time I asked the police ‘I want to talk to my family,’ what they always told me was that I have to fill out an application to call. I wrote many applications.”

Correction: Sept. 17, 2017, 2:27 p.m.
An earlier version of this story incorrectly referred to the city of Agadez as being in Mali. In fact, it is in Niger. The story also stated that Paola Ottaviano was a journalist; she is a researcher and lawyer who writes for a watchdog organization called Borderline Sicilia.

Top photo: Port security officers stand in front of the Aquarius vessel as migrants wait for disembarking after arriving to Messina, Sicily in Italy, on June 26, 2016.