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The lack of Jurisdiction in the Pylos 9 trial and the incoherent interpretation of international criminal law by Greek courts

Background


On 21 May 2024, nine men will appear before the Court of Kalamata to be tried for the shipwreck of the fishing vessel ‘the Adriana’, which sank on 14 June 2023, 87 kilometers off of Pylos, in international waters. The so-called ‘Pylos 9’, are nine Egyptian men who survived the deadliest shipwreck on record in the Aegean. They were arrested by the Greek authorities the day after the shipwreck and have been detained ever since. The nine accused were subsequently charged with causing the shipwreck, and forming and participating in a criminal organization in order to illegally transport third-country nationals to Greece for profit (i.e. ‘smuggling’) in a manner that is dangerous and resulted in hundreds of deaths. They are also charged with illegal entry into Greek territory. 


In doing so, the Greek authorities are attempting to distract from their own responsibility for the shipwreck. Forty survivors have filed a criminal complaint before the Naval Court of Piraeus against all responsible parties. The complaint accuses the Greek State of violating a series of obligations to protect the lives of those on board and it demands an effective investigation into the circumstances of the shipwreck. Frontex found that the Greek authorities only launched the search and rescue operation when it was already too late, and concluded that in the hours prior to the shipwreck, the Greek authorities deployed insufficient and inappropriate resources to assist the passengers, considering the number of persons aboard the ship, and that the Greek authorities failed to make use of the resources offered by Frontex. 


Pattern of Criminalisation


The prosecution of the Pylos 9 is in line with the Greek State’s widespread practice of criminalizing  migration. Similarly to pushbacks, the criminalization of migration is a state policy designed to deter asylum seekers from entering Greece. When a boat reaches Greek land without being pushed back, Greek authorities pick one or more passengers (commonly the person who was tasked to drive the boat) and accuse them of smuggling the rest of the group. 


In addition  to the fact that the accusation of the Pylos 9 is politically motivated (with the ultimate aim of deterring future migrants from coming to Europe - in line with  a wider EU strategy of  criminalization, pushbacks and border violence), the trial of the Pylos 9 takes place in the context of an institutional decline in Greece. The case of the Pylos 9 is yet another example of the persisting ineffectiveness of criminal investigations into ill-treatment by law enforcement bodies, a lack of independent investigating officers, deficient evidence collection, and the misuse and weaponisation of criminal law to target refugees and migrants (1)


The systemic deficiencies of criminal proceedings in Greece in cases of criminalisation of migration, as well as the immediate arrests and pre-detention of the nine accused, and the rejection of requests filed by their  lawyers for additional crucial evidence, indicates  that the Pylos 9 trial will not meet the conditions of a fair trial. Indeed, it appears that the conditions of the arrests and the gross violations of the accused’s procedural rights during the pre-trial investigation weakened their positions to such an extent that all subsequent stages of the proceedings will be unfair (2). 


Legal Argumentation


As it will be one of the first legal issues raised before the court on 21 May, we decided to focus on the question of the jurisdiction in the Pylos 9 case and, more precisely, on the lack of jurisdiction of the Greek authorities to prosecute the Pylos 9, as the shipwreck of the Adriana took place in international waters. 


The Human Rights Legal Project will present six previous cases in which our lawyers have objected to the jurisdiction of the Greek authorities. The objective is not only to demonstrate that the Greek State does not have jurisdiction in the Pylos 9 trial, but also that Greek courts incoherently interpret and apply the law, in violation of the principle of legal certainty. Indeed, contrary to the principle of foreseeability of the law, in those six cases, the courts reached varying conclusions regarding the Greek authorities’ competence to prosecute the accused despite the similarity of the facts. 


We consciously decided not to examine the six cases in detail and not to give any personal information about the defendants. The courts have consistently violated their right to a fair trial by disregarding exculpatory evidence, relying on questionable testimonies, not taking into account the personal situation of the accused and so on. 


As we demonstrate in this comparative study, international and Greek law clearly indicates that the transfer of migrants outside Greek territorial waters is not subject to Greek criminal jurisdiction. However, in violation of the principle of the foreseeability of the law and of the law itself, Greek courts inconsistently interpret and apply the law and reach contradicting decisions for similar facts. We remain hopeful that the three member Appeal Court of Kalamata will reach the conclusion that Greek authorities do not have jurisdiction to prosecute the Pylos 9.


Read the full analysis:


HRLP LEGAL ANALYSIS - PYLOS9 JURISDICTION
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References:

(1) Vouliwatch, Greek Council for Refugees, HIAS Greece, Refugee Support Aegean, Hellenic League for Human Rights, Reporters United, Greece in Institutional Decline, Joint Civil Society Submission to the European Commission on the 2024 Rule of Law Report, January 2024. 

(2) ECHR, Alexandru-Radu Luca v. Romania, no. 20837/18, § 63, 14 June 2022


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