By Captain Support Greece

In 2002, EU Directive 2002/90/EC obligated each EU Member State to make it a criminal infraction to intentionally facilitate the unauthorised entry or transit of a person across a border – notably whether or not that person received any financial or material benefit to facilitate the crossing, and whether or not that person was a migrant who was subject to a smuggling network. This was codified into Greek law through Law 4251/2014. In practice, this means that anyone who steers a migrant boat or rubber dinghy from Turkey to Greece could be prosecuted as a smuggler, no matter their reason for boarding the boat or taking the wheel, in contradiction to the United Nations’ Protocol against the Smuggling of Migrants and the Geneva Refugee Convention. Greece’s punishment under this 2014 law is currently among the harshest in the EU: ‘facilitating unauthorised entry’, for example, the usual charge brought against alleged boat drivers, is a felony offence which results in a ten year prison sentence and up to an additional 15 years imprisonment for each person transported across a border and whose life was, allegedly, put in danger.

For every migrant boat that arrives in Greece from Turkey, a minimum of 1 or 2 people could face smuggling charges under these provisions, and border guards and police regularly interrogate people on the move to identify who drove the boat. Since 2015, with the increased arrivals of boats coming from Turkey to Greece carrying roughly between 20-50 people each, thousands of people have faced these charges. The prosecution – based on the same charges – of people driving cars carrying migrants over borders, has also increased. Indeed, the second largest prison population in Greece is currently composed of over 2000 racialized people who are charged with or convicted of so-called smuggling related offences.

Trials in Practice in Lesvos

While the law is itself harsh, the trials in which migrants are convicted are fraught with procedural violations. In cases of alleged boat drivers on the Greek island of Lesvos, trial observation has shown that several aspects of fair trial principles are repeatedly violated. The analysis of 48 cases tried in Greece between 2016 and 2019, for example, showed that the average duration of all trials was only 38 minutes, and all cases but one led to a conviction. At the same time, the analysis identified a lack of both adequate legal representation and translation. As trial monitoring and dedicated legal representation have increased since 2019, the courts in some cases are conducting what appear to be ‘proper trials’, however, violations of procedural rights continue, including repeated arbitrary and lengthy postponements, lack of proper translation, introduction of key witness testimony without the possibility to cross examine, and rejection of legal grounds for acquittal, such as when people are forced to drive the boat to save the lives of those on board.

This was the case of M.H., convicted of smuggling and sentenced to 142 years imprisonment. He was arrested following a shipwreck, during which he tried to save the lives of those on board. Unfortunately, the boat capsized and two women died. In this case and many others, the systemic violence M.H. faced in the Greek criminal system was not limited to the very strict anti-smuggling legislation or use of harsh penalties, but also included the use of racist language and ignorance of judicial officials. In the appeal trial of M.H. held on 9 January 2023, in the Mixed Jury Appeal Court of Mytilene, the prosecutor barely dealt with the relevant facts of the case. Instead, observers who were monitoring the case heard the prosecutor openly question in court why M.H. had travelled to Greece when he could have (in her opinion) gone to another country in Africa. She also questioned why he did not enter Greece via the airport if he had a passport, demonstrating her complete lack of understanding (or willful ignorance) of European migration and visa requirements and policies.

M.H. was found guilty in his appeal trial, but his sentence was reduced to 37 years and 20 days imprisonment after the court evaluated the mitigating circumstances. In the Greek system, while sentences issued can be quite lengthy according to the penal code guidelines, there are limits to the actual time an individual is detained inside a prison, which often does not exceed 8 years. Through complex mathematical calculations carried out at the close of M.H.’s appeal trial, it was determined that due to these limits, the reduction in his sentence, and the 2 years he had already spent working in prison, he was eligible for early release on parole.

As much as we are pleased that M.H. was finally released from prison, he should never have been convicted of smuggling or causing the deaths of people he was in fact trying to save. We cannot recognize the “lighter” sentence of 37 years or his release as a victory so long as people on the move are facing criminal sanctions simply for crossing borders.

In the case of M.H. and many others like him – especially in the cases of shipwrecks with fatalities – the practices of the repressive prison and judicial industrial complex are clear: since the coast guard, the Greek state, and the EU cannot be held responsible for either the shipwreck or the dead, a scapegoat must be created to whom the responsibility for these crimes will be attributed and who will eventually be punished. More examples are the #Samos2 case, #Paros3 case.

Conclusion

Legislative and political campaigns have long portrayed “smuggling networks” as the cause of exploitation and violence against migrants at Europe’s borders, rather than the exclusionary migration policies which necessitate the use of smuggling networks to cross borders in the first place. For example, one of the purported aims of the EU-Turkey Statement of 2016 was to “break the business model of the smugglers,” while the clear purpose and effect of this agreement was to increase militarisation of the borders and stem migration to Europe – resulting in even more precarious journeys for people crossing borders without formal authorisation. It is clear that the current application of anti-smuggling laws do not protect migrants, but rather further harm and punish people on the move for the sole act of crossing borders. This targeting of migrants as smugglers has become a part of migration management in Greece. It is essential both that policies that criminalise this movement across borders, and which prevent safe routes of migration are abolished, to prevent further violence, death and torture of people on the move at Europe’s borders.

first published on 16 June 2023.