The Communication on the situation of three Eritrean human rights defenders

In this Communication, Mary Lawlor, Special Rapporteur on “situation of human rights defenders”; Obiora C. Okafor,  Independent Expert on “human rights and international solidarity”; Felipe González Morales, Special Rapporteur on “human rights of migrants”, and Siobhán Mullally, Special Rapporteur on “trafficking in persons, especially women and children” focus on criminal prosecution of three human rights defenders. Mrs Afewerki Gebremedhn, Abraha Ghebrehiwet, and Hintsa Mebrahtom are Eritrean men living in Italy, where they have been granted asylum. They were providing assistance to migrants and asylum seekers.

The case originated from their arrest on 14 March 2016 on charges of criminal conspiracy to facilitate illegal immigration under Article 416 of the Italian Criminal Code and Article 12 of the Consolidated Immigration Act, 1998. The three men used to assist Eritrean migrants and asylum seekers by giving them advice on how to use public transport, helping buy tickets for buses or trains, buying them clothes, food, phones and sim cards, as well as hosting recently arrived migrants and asylum seekers and helping them find places to stay. Following an investigation by the Italian Anti-Mafia Directorate and the Coastguard, including wiretapping activity, the Rome Criminal Court convicted them of aiding and abetting illegal immigrants under Article 12(1) and (3) of the Consolidated Immigration Act, sentencing them to 2-4 years' imprisonment and fines up to €125,000, while dismissing the conspiracy and illicit money transfer charges due to lack of evidence. On appeal, the Court of Appeal of Rome upheld the conviction but reduced the sentence, maintaining the interpretation of their conduct as acts facilitating illegal entry into the State. Further, the case was submitted to Italy’s Court of Cassation. As of the time of writing of the Communication, the defendants were at liberty. 

In the Communication, the UN experts mentioned several previous occasions when Italy was questioned about the charge of aiding and abetting illegal migration being pressed against human rights defenders (see ITA 1/2021 and ITA 5/2020). The Communication highlighted that “states must refrain from criminalising or otherwise penalising either the provision of support or assistance to migrants or the organisations or individuals who carry out such essential activities” and asked to provide information about the legal basis for the pre-trial detention of the concerned individuals, the reasons for its extended duration, and information on any measures to ensure that criminal laws are not misused to punish migration-related humanitarian acts or to harass human rights defenders or civil society organisations that work with migrants.

The Communication asked Italy to provide clarifications on the allegations mentioned above; detailed information on the legal and factual basis for the prosecution of Gebremedhn, Ghebrehiwet and Mebrahtom, who appear to be human rights defenders and not criminals; on their pre-trial detention, along with information as to the assessments taken to evaluate the necessity of such detention and information concerning the reasons for its extended duration. Information is also requested on any measures taken to ensure that criminal justice laws are not misused to punish migration-related humanitarian acts or to harass human rights defenders or civil society organisations that work with migrants.

Italy’s reply on the communication on the situation of human rights defenders

The Government sent a response on 14 June 2022. In this document, Italy provided information concerning a public hearing held on May 20, 2022, at the First Criminal Section of the Court of Cassation. The proceeding under examination was concluded with the following decision (the operative part of the judgement): “annul without referral the challenged verdict, because the fact does not exist.” 

The Communication of the Special Rapporteur on the independence of judges and lawyers

In this Communication, Diego García-Sayán, Special Rapporteur on the independence of judges and lawyers, brings to the attention of the State the situation of Ms. Elena Ojog, a woman of Moldovan, American and Italian nationality, residing in Italy. Ms. Ojog’s former partner has relatives working in the Venice Tribunal, which has reportedly impeded her access to an impartial tribunal in some separation, custody and criminal cases she was involved in.

Ms. Ojog reported that she initiated separation and custody proceedings at the Venice Tribunal on March 10, 2016, despite the absence of a formal marriage registration with her former Italian partner. The case was bifurcated, and Ms. Ojog concurrently faced criminal allegations. Ms. Ojog alleges a lack of judicial impartiality due to her former partner’s familial ties to key members of the Tribunal. She asserts systemic procedural violations, including intimidation, manipulation of evidence, and obstruction of access to justice. In particular, she endured an eviction proceeding. The former partner’s father lodged an expedited eviction claim in November 2016, alleging unlawful occupation. Despite financial police findings suggesting her partner concealed financial assets to evade alimony obligations, the Tribunal ruled for eviction (April 21, 2017), later enforced on March 16, 2018. Ms. Ojog provided legal documentation supporting her right to residency, but the Tribunal allegedly dismissed this evidence. 

Initial custody rulings (June 2017, October 2017, February 2018) upheld shared custody and assigned to her partner financial obligations in support of her and their children. However, her former partner continued to seek sole custody, and on May 8, 2018, the Tribunal excluded Ms. Ojog’s residency proof from case records. A July 30, 2019, decision awarded full custody to the father, with no visitation rights for nine months, citing COVID-19 restrictions. Subsequent interactions with her children remain strictly supervised.

Later, as stated in the Communication, Ms. Ojog’s former partner and his father opened two criminal cases against her, claiming that she physically assaulted her partner in 2017 and 2018. Although she claimed innocence and the statute of prosecution of two years had passed, the criminal case court hearing date was nevertheless set for January 12, 2022, at 11 a.m. Ms. Ojog's arguments were not accepted, and her lawyers were reportedly passive in her defense. 

Ms. Ojog also contends that systematic legal obstruction has barred her from pursuing appeals, violating her right to a fair trial. The Tribunal allegedly facilitated the removal of her children, financial asset seizures, and suppression of exculpatory evidence, preventing effective legal recourse.

The Communication raises concerns that the Judge, a friend of the family of Ms. Ojog’s former partner, ignored the Court of Appeals and Cassation's decision and took a case outside of his jurisdiction. Additionally, it draws attention to the lack of adequate legal support Ms. Ojog received from the assigned lawyer and the rejection of her request for a translator. These instances demonstrate that Ms. Ojog’s right to a fair trial has been neglected.
The Special Rapporteur asked to provide information on the alleged violations that have prevented or limited the right of Ms. Ojog to a fair trial, to provide an update on the current status of Ms. Ojog’s case, and on the measures adopted to ensure the independence and impartiality of courts in her case, and provide an update on the current status of Ms. Ojog’s case.

Italy’s reply on the communication on the independence of judges and lawyers
The Italian government sent the reply after the 60-day confidential period on 24 Mar 2023, providing the information requested in the Communication. The Tribunal granted Mr. B.A.'s (Ms. Ojog’s former partner) application for eviction on April 19, 2017, finding no procedural violations, and subsequently dismissed Ms. Ojog’s request for revocation as inadmissible, holding her liable for frivolous litigation. The custody proceedings resulted in an initial shared custody order, later reconsidered based on social services’ reports, ultimately leading to the assignment of custody to the paternal grandparents. A panel of judges took the Tribunal's decision. According to the State, all claims of judicial bias should be dismissed.

Regarding the ongoing criminal proceedings, a counsel of her choosing defends Ms. Ojog, and no procedural irregularities regarding legal aid or access to case files were identified. Allegations of missing case files were refuted by the Public Prosecutor, who dismissed her complaints for lack of specificity. The reply also states that in the complaints filed by Ms. Ojog with the Venice Public Prosecutor's Office, she did not raise the alleged friendly relations between the judge of the Venice Tribunal and the family of her ex-partner, which, on the contrary, in the Communication under reference are indicated as the cause of the abuse she suffered. The circumstance that in these complaints Ms. O.E. never denounced the alleged partiality of the judge who ordered the release of the property and subsequently ordered the custody of the children in favor of their paternal grandparents is a further confirmation of the groundlessness of the allegations.”