A Maltese chartering company owner and four employees have been acquitted of supplying vessels for the evacuation of mercenaries from Libya in breach of EU sanctions.

James Fenech, who owns Sovereign Charters, had been arraigned in court in 2020 along with employees Bertrand Agius, Konrad Agius, Charles Bugeja and Michael Cauchi and charged with breaching EU rules after sending two Malta-registered RHIBs to Libya without the necessary clearance.

The boats were leased on the pretext that they were going to be used to evacuate 'geological survey workers' from Libya in 2019.

However, when delivering judgment on Tuesday, Magistrate Donatella Frendo Dimech ruled that the type of boats in question were not listed as prohibited goods under the sanctions in question.

Inspector Omar Zammit had testified about the police investigation that kicked off when 20 people claiming to have fled Libya arrived on a RHIB at the Valletta Seaport on 1 July 2019. The men on board the RHIB told Maltese immigration officers that they had been performing geological surveys in Libya for a Dubai-based company called Opus Capital Asset Ltd and had decided to flee in view of the rapidly deteriorating security environment.

But these men were white Westerners and were noted as being in peak physical condition, unlike the irregular migrants the officials were used to. MaltaToday had reported about how a UN investigation had later revealed that the men were, in fact, private military contractors (PMCs) who had to be evacuated from Libya after a plan to provide military helicopters to Libyan Field Marshal Khalifa Haftar was called off at the last minute.

The men had been released from arrest by police two days after the Maltese company that leased them the two RHIBs, Sovereign Charters, accepted to pay a €15,000 fine for immigration irregularities.

A South African citizen called Steven Lodge identified himself as the leader of this group, explaining that he owned Umbra Aviations, a company based in South Africa, which provided helicopters for geo surveys and anti-poaching.

Zammit explained that Lodge had told the police that when the men had arrived in Libya, they had searched the port of Benghazi for boats which could be used together with helicopters for air-sea rescue or for transporting staff which were in Libya, but did not find any suitable vessels.

Lodge claimed that Opus Capital Headquarters had informed him that they would be sending two RHIBs that had been leased from Sovereign Charters Ltd. While en route to Malta, one of the RHIBS broke down and had to be abandoned.

The group of 20 were all found to have flights already booked for them. After it was confirmed that the men did not pose a national security threat, immigration officers sent them on their way, after imposing a fine on a number of them for entering Malta without a visa.

The prosecution insisted that as the defendants had not sought the authorisation of the Sanctions Monitoring Board before sending the RHIBs to Libya, this constituted a breach of EU sanctions on Libya.

The inspector recalled Fenech telling him that he had instructed his employees to obtain clearance from immigration authorities and had engaged a law firm to draft the necessary contracts and ensure that the law was followed.

Confronted with the fact that Sovereign Charters Ltd had received a €480,000 payment from Lancaster 6, a company owned by Christian Durrant, a former associate of Blackwater founder Erik Prince, Fenech denied knowing that the company was owned by Durrant. He was unable to explain why the payment was received from Lancaster 6 when his company’s agreement had been with Opus Capital to which it had also sent the invoice for the charter agreement.

Under cross-examination Inspector Zammit explained that in his opinion, the two RHIBs fell within the “outdoor motor boats” and “inflatable vessels for pleasure or sports” categories of goods prohibited for export to Libya. The court noted that he had not attempted to verify whether the RHIB in question, a Madera MR1250 Outboard, was inflatable or not.

In fact, during the course of proceedings, it was shown that the vessel’s “CN Code” - an 8-digit product classification system used in export declarations and in statistical declarations for trade in the European Community - was not on the list of prohibited goods in the relative Council Regulation.

The court remarked that it was “truly worrying that when it was so clear and obvious that the Council Regulation which the accused are charged with violating, only applies to goods with the listed nomenclature codes, there was still no attempt to ascertain - once they are specified and referred to in the same Annex - whether these sea vessels had a code from the very limited list of six, which could have led to a breach of Council Regulation 2016/44 as amended.”

It was clear, said the court, that it was only transactions relating to goods with a particular CN code that required prior authorisation and no other type of goods.

Magistrate Frendo Dimech emphasised that the signature of a police constable on documents relating to the embarkation of the vessels before their departure confirmed that nothing about the departure had been hidden from the authorities, who could also have requested additional information had this been required.

It also emerged from the testimony of several witnesses that the surviving RHIB had informed the Valletta port authorities of its impending arrival and that nothing illegal had been found when the arriving passengers had been searched by the police.

The court acquitted Fenech and Sovereign Charters Ltd of all charges, as it had not been satisfactorily proven that the permission of the Sanctions Monitoring Board was required for the charter party agreement over the vessels in question.

Magistrate Frendo Dimech ruled that the prosecution had not produced a “single piece of evidence” of the CN code pertaining to the Manta 1 and Manta 2. “It was only the defence which exhibited evidence to show that identical vessels to those specified in the charter party agreement had a different CN code to those listed in Annex VII of the Regulation which the accused are charged with breaching. This means that the defence has proven its case to the required grade, that of probability, and consequently brings to nothing the prosecution’s case,” the magistrate ruled.