The owner of a vessel chartering company and four employees have been cleared of breaching EU sanctions since the military-grade inflatable boats leased to evacuate workers from war-torn Libya did not feature among the “very limited” list of prohibited goods, a court declared.
This was the outcome of two judgements delivered on Tuesday against James Fenech, as sole director of Sovereign Charterers Limited, and his employees Bertrand Agius, Konrad Agius, Charles Bugeja and Michael Cauchi.
All five were charged with violating an EU regulation prohibiting the sale, supply, transfer or export of equipment “to any person, entity or body in Libya or for use in Libya” which might be used for “internal repression”.
Investigations by the anti-terrorist squad were triggered when in July 2019, the Manta-1, one of two Rigid Hull Inflatable Boats (RHIB), arrived in Malta with an unusual boatload of some 20 people.
They were not asylum seekers but evidently trained personnel bearing South African, English, Australian and American passports.
They later told police that they had been tasked by their employer, Opus Capital, to carry out geological surveys in Libya and had opted to flee out of Benghazi after noticing a spike in militia presence.
Investigations led to charges being issued against Fenech and his four employees who had been involved in ferrying those RHIBs to Libya in terms of a charter party agreement signed between Sovereign Capital and Opus Capital.
All were charged with breaching article 4 of the National Interest (Enabling Powers) Act, meaning they were charged with violating an European Council regulation on restrictive measures related to the situation in Libya.
They had denied the charges.
The case had attracted increased scrutiny after The New York Times reported that those passengers were not really oil company workers but mercenaries engaged in a military operation commissioned by renegade general Haftar as part of his efforts to take over Tripoli.
When delivering judgment two years down the line, the court remarked that it was “truly concerning” that no attempt had been made, before Fenech and his co-accused were criminally charged, to ascertain whether the boats fell under any one of the prohibited items listed under the relative regulation.
That Regulation, 2016/44, laid out a “most limited list of six” goods which were not to be transferred, sold or supplied to Libya.
It did not lay down a blanket prohibition but clearly stated that the prohibition applied “limitedly to goods mentioned under Annex VII”.Turning to the case at hand, the court observed that, obviously, goods not included in that list required no “prior authorisation” by the Sanctions Monitoring Board.
The boats chartered by Fenech were Madera RIB MR 1250 models matching a specific CN “nomenclature code” which, however, did not feature anywhere under the prohibited list in terms of Annex VII of the regulation.
Among the prohibited goods were “inflatable vessels, for pleasure and sports” as well as “outboard motor boats,” but the RHIBs did not fall under those categories, as the prosecution sought to argue.
Indeed, the prosecution had failed to produce a single piece of evidence to prove the CN code matching the boats chartered by Fenech, observed Magistrate Donatella Frendo Dimech.
On the other hand, the defence had put forward evidence showing that these vessels matched a different code that was not among the prohibited list.
By proving its case on a balance of probability, the defence had reduced the prosecution’s case to nothing, said the court.
It had not been sufficiently proven that the charter party agreement signed by Fenech required prior authorisation and that the accused had violated the law, concluded the court, acquitting all the co-accused.
Lawyers Joe Giglio, Stephen Tonna Lowell and Patrick Valentino were defence counsel.