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Greek court has finally ruled that REFUGEES cannot be charged with facilitating illegal entry

Updated: Jan 12

In two groundbreaking decisions, the Court of Syros, seating in Samos, recognized that refugees are excluded from the scope of Law 4251/2014 on Immigration, Social Integration Code and other provisions, and therefore cannot commit the offense of facilitation of illegal entry of third nationals and of illegal transfer of third nationals.


The right to seek asylum is unequivocally a fundamental human right (1). However, Greek authorities increasingly use criminalization to deter asylum seekers from coming to Greece to apply for international protection.


What is criminalization?


In practice most people in need of international protection cannot be given permissions (visas, etc.) to enter another country legally in order to apply for asylum, and therefore have no other choice but to enter illegally, usually through extremely dangerous routes. But because seeking asylum is a fundamental right, the Geneva Convention, which is the main international legal instrument in the matter, specifically includes that States shall not impose criminal charges on asylum-seekers because of their illegal entry or residence in their country (2).


Similarly to pushbacks, the criminalization of migration is a state policy, in contravention with human rights principles, designed to prevent asylum seekers from entering Greece.


In most cases, the authorities pick one or more passengers, usually men, often the one who is driving the boat, and accuse them of smuggling or facilitating the illegal entry of third country nationals. These charges are extremely serious and clients represented by HR's lawyers LP have faced sentences up to 250 years of imprisonment.


These accusations only serve a political purpose and lack a legal ground. 96% of our clients have been either acquitted of all charges or received very reduced sentences.


Reza and Abdul Kader (3), the perfect examples.


Abdul Kader arrived on the island of Samos on July 26th, 2019. He fled Syria due to the ongoing armed conflict. He came to Greece with several members of his family. During his journey from Turkey to Greece, he was on the boat with his 6 months pregnant wife and his two siblings who were 16 and 14 years old at the time.


On the 26th of July, when the family reached the boat, the Turkish smuggler asked Abdul Kader to drive, which he refused as he didn’t know how to drive a boat. Abdul Kader was afraid for his life and the one of his family. After his refusal, one of the smugglers kicked him on the left leg to force him to drive. The smuggler drove the boat for about 10 minutes before leaving the boat and forcing the defendant to drive it.


**


Reza fled Iran because he was being persecuted by the Iranian regime on religious grounds. He was also forced to flee Turkey on religious grounds as he refused to convert to Islam.


The boat he took to come to Samos was at first driven by a Turkish man who then asked the passengers if they knew how to drive the bot. No one replied. As Reza was sitting next to the smuggler, he was ordered to drive the boat. At first, Reza refused but he was eventually forced to do it because the smuggler started to physically assault him.

The smuggler quickly showed Reza how to drive before leaving the boat and the passengers on their own. The defendant and all the passengers started to panic. Reza managed to keep holding the wheel as he was instructed by the smuggler, hoping that they would eventually reach the coast. He drove until being caught by the Hellenic Coast Guards.


**


Both men were charged with intentionally and serially facilitating the illegal entry into Greek territory of third country nationals under article 29(5) of Law 4251/2014. They both faced imprisonment for up to 10 years and a fine of at least 20 000 euros.


Both men were tried in front of the one Member Court of Appeals of Syros First Instance, seated in Samos, on October 23rd, 2023. They were both acquitted of all charges. Indeed, for the first time, a Greek court found that refugees are excluded from the scope of Law 4251/2014 on Immigration, Social Integration Code and other provisions, and therefore cannot commit the offense of facilitation of illegal entry of third nationals and of illegal transfer of third nationals.


The two decisions are important legal precedents. It is the first time that a decision specifically mentions article 2(c) of Law 4251/2014 which states that provisions of the law shall not apply to beneficiaries of international protection within the meaning of the 1951 Geneva Convention and in accordance with national law.

While the law is very clear and the lawyers of HRLP systematically raise this argument, it is the first time that a Greek Court uses this article of the law to acquit defendants who are accused of facilitating the illegal entry of third-country nationals because they are beneficiaries of international protection.


We must stress that, if in the present cases Reza and Abdul Kader were not pre-detained, more than 10 of HRLP’s clients are currently awaiting their trials in Greek prisons.





Samos Court_HRLP_23.10
.2023
Download 2023 • 189KB


(1) See for example : United Nations Convention relating to the Status of Refugees, 1951 ; European Union Charter of Fundamental Rights, article 18 ; Universal Declaration of Human Rights, article 14.

(2) United Nations Convention relating to the Status of Refugees, 1951, Article 31 paragraph 1.

(3) Names have been changed for reasons of confidentiality.


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