Monday, 21st of October 2024, Samos: In two recent groundbreaking decisions, the one Member Court of Appeals of Syros First Instance, seated in Samos, acquitted three defendants of all charges, on the grounds of their asylum seeker status.
M.S. F.F. and E.A. were accused of illegal transfer of third-country nationals and assisting the illegal transfer of third country nationals. The first two men were accused merely because they were driving the boat, while the latter was accused of helping the driver by using his phone and the map. Each of them was facing 15 years of incarceration for each transferred person.
This is nothing new. Over the past decade, the criminalization of migration has become a systematic deterrence strategy aimed to prevent people on the move from seeking international protection in the EU.
Greek authorities have increasingly targeted the drivers of boats and vehicles carrying migrants, arresting and prosecuting them on the charges of 'smuggling'.
As a result, innocent people are paying the price, being used as a scapegoat so authorities can claim taking effective action against "irregular" migration.
However, in a groundbreaking decision, on Monday October 21st, E.A. F.F. and M.S. were declared innocent after 7 months of pre-detention in prison. This marks the first time a Greek court found that asylum seekers are excluded from the scope of Law 5038/2023 on Migration Code, and therefore cannot be accused of committing the offense of illegal transfer of third nationals and of facilitation of illegal entry of third nationals.
Right to seek asylum & illegal entry
The right to seek asylum is unequivocally a fundamental human right. However, Greek authorities, in contravention with human rights principles, have been using criminalisation to deter asylum seekers from coming to Greece to apply for international protection.
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.
Taking into account these pragmatic obstacles and because seeking asylum is a fundamental right, the Geneva Convention, i.e. the primary international legal instrument in the matter, protects refugees against prosecution for illegal entry to a receiving country. Specifically, article 31 of the 1951 Refugee Convention, includes that States shall not impose criminal charges on asylum-seekers because of their illegal entry or residence in their country.
Nonetheless, Greek authorities have systematically resisted to apply the aforementioned law correctly, which has led to the unfair criminalisation of thousands of migrants seeking protection in Greece.
A legal precedent
“The two decisions are important legal precedents. It is the first time that a court decision specifically mentions article 3 para. 3 (e) of Law 5038/2023 (previously article 2 para. 1 © of Law 4251/2014) which states that provisions of the law shall not apply to asylum seekers 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 refers to this article of the law to acquit defendants who are accused of illegal transfer of third-country nationals, on the grounds of their asylum seeker status.
Almost a year ago, HRLP lawyers noted a similar success, when a Court decision acquitted two defendants who were accused of facilitating the illegal entry of third-country nationals, on the grounds of their refugee status. The specific decision was based on article 2 para. 1 ( c ) of Law 4251/2014, which was in effect at the time. You may read more here.
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