A judge on Thursday dismissed a lawyer's suggestion to go out to sea in adverse weather conditions to experience conditions experienced by the AFM as they handled a migrants' rescue.

The suggestion was made by a lawyer representing the armed forces in ongoing proceedings filed by 50 migrants who are claiming that their fundamental rights were breached when they were sent back to Libya and placed in detention in an operation coordinated by the Maltese authorities.

At a previous hearing, an AFM search and rescue mission coordinator testified that he had received orders from his superiors to instruct a vessel engaged by Malta to pick up the migrants, to take them to Libya.  The migrants had been in a dinghy in Malta's search and rescue zone. 

Captain Christian Francica told the court when he returned to the witness stand that his intention was always to save lives.

Francica was questioned by lawyer Paul Borg Olivier, representing the migrants who asked if any footage from an AFM aircraft involved in the operation was available. He also asked about sea conditions. 

The witness said there was no footage and infrared cameras used at night could not shed much light on sea conditions, only making out the dinghy as “a flat object” on the surface.

“But if the craft were covered by waves, it would make a difference, no?” remarked Mr Justice Lawrence Mintoff.

Questions then focused on weather conditions that day, with Borg Olivier insisting that nowhere had it been recorded in the case file that the wind was at Force 7, as the AFM had claimed. 

The wind strength was noted as varying from Force 3 to 5.

Asked how he knew that the sea was rough, Francica said that besides the weather forecast, as SMC official he also relied on military sources as he had been professionally trained to do. That included first-hand information from vessels engaged in the operation.

Asked by the court whether a plane could measure wind speed, the witness explained how in such adverse conditions the main effort of the crew was to identify the target and establish contact so that the AFM could save lives.

As the hearing drew to an end, lawyer Susann Agius, representing the AFM commander in the case, minuted that since Borg Olivier wished to determine what the weather was like at the time of the rescue mission, there was no better way to do that than for the court to hold an onsite visit under matching circumstances.

The “best evidence rule” would be satisfied if the court were to assess those sea and weather conditions “with its own eyes,” said Agius.

And since meteorologists were forecasting Force 7 winds this Saturday, the AFM was willing to place one of its vessels at the court’s disposal so as to conduct such a visit at sea. This would also serve the “proper administration of justice.”

Borg Olivier reiterated that the rescue officers never indicated in their report  that the rescue operation had been conducted in Force 7 winds. Furthermore,  at a previous hearing the AFM had presented unrelated footage of one of its vessels at sea at Force 8 winds, so as to provide the court with some insight into the conditions at sea.

“You wanted to see the waves, we could show them to you,” taunted the AFM lawyer.

Borg Olivier retorted that the respondents were making a mockery of the situation.

Stepping in to calm the waters, Mr Justice Mintoff said that the AFM could present footage recorded by one of its vessels on Saturday, just as they had presented a video taken at Force 8 winds. However, in any case, since the respondents had wrapped up evidence at this preliminary stage of the case, their request could not be upheld.

The case continues in May.

State Advocate Chris Soler represented the other respondents.

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