ONE MORE ACQUITTAL SHOWS THE DRAMATIC CONSEQUENCES OF THE CRIMINALISATION OF REFUGEES ENTERING IN EU TERRITORY
On May 19, 2022, the Single-Member Criminal Court of Appeal of Kalamata acquitted two Syrian nationals of the criminal charges imposed whilst entering the Greek territory, one of them defended by RSA lawyers. More specifically the refugees have been charged of a) being the captain of a vessel transferring into Greece third-country nationals from abroad who do not have the right to enter the Greek territory (1st accused) and of b) being an accomplice in transferring into Greece third-country nationals from abroad who do not have the right to enter the Greek territory (2nd accused). The Court also acquitted them for the accusations of illegal entry in Greece. Furthermore, the Court had declared guilty three Syrian nationals who were absent in the hearing for complicity in transferring into Greece third-country nationals from abroad who do not have the right to enter the Greek territory and convicted them to 364 years of imprisonment and a big fine.
Serious gaps and irregularities in the pre-trial and investigative procedure
This decision is particularly important as the hearing brought to light major irregularities, serious gaps, omissions and faults of the pre-trial and investigative procedure, which resulted in the prosecution and pre-trial detention of the two accused for one year and, of course, the conviction of the three accused who were absent from the hearing. In particular, the non compliance with procedural guarantees during pre-trial and interrogation proceedings, the lack of adequate interpretation, the irregularities in the collection and evaluation of evidence e.t.c. characterized the fast-track/summary pre-trial proceedings, quite common in similar cases, which lead to the above prosecution.
The judgment of acquittal though, should serve as a precedent for putting an end to a series of systematic violations of the rule of law and the application of summary proceedings against the weakest and in this case against refugees. At the risk of their lives, refugees are forced to seek the obvious, that is, a safe haven, asylum in a Europe which, by invoking its border security, denies protection and safe access to its territories, exposing thousands of people to danger. In this context, refugees are perceived and treated as ‘perpetrators’ for “illegal entry” or even “common criminals’ for carriers’ liability, facing serious accusations involving hundreds of years convictions without being taking into account their state of emergency and/or the particular circumstances provided by international, EU and national law and exempting them from penalties.
The case of N.S, single-father pretrial detained for one year and deprived from his two minor children
RSA lawyers defended Mr N.S who was the 2nd accused in the trial and acquitted by the Court for being an accomplice in transferring into Greece third-country nationals from abroad who do not have the right to enter the Greek territory. Mr N.S is a refugee from Syria, who arrived as a single-father with his two minor children (of 8 and 9 years old) and who has been singled-out and accused by the Greek authorities according to the problematic and summary pre-trial proceedings, while even his parenthood has been questioned.
Mr N.S was forced to leave Syria and flee to Turkey with his minor children after the tragic death of his first wife and mother of his children by a bomb blast near the city of Idlib. Obviously, their lives and freedom were in danger due to the raging civil war also because of the political beliefs attributed to him, due to his refusal to serve as a soldier in Syrian army and on the other hand to join the opposition groups and turn either in one case or another against his compatriots. Due to the lack of effective protection in Turkey and with the assistance of the United Nations High Commissioner for Refugees, his family was selected for a resettlement program for Canada without though a successful completion. Therefore, he decided to leave Turkey and seek protection in an EU country.
On 3/5/2021 they arrived at Kalamata rescued from an impending shipwreck. On 6/5/2021 Mr N.S was arrested for reasons he never understood, as being accused of complicity in the transfer of persons to Greece and then he was detained until his release, following the acquittal decision.
Mr N.S I applied for asylum in Greece, for him and his children. The children were recognized as refugees in Greece following his initial application, as the file was separated for procedural reasons, since he was a detainee and he is still an asylum seeker waiting for his decision.
It should be noted that the Prosecutor of the Court of First Instance of Kalamata acted as Temporary Guardian and took care of the minor children, due to Mr N.S’ arrest and detention and their mandatory separation, in combination with the absence of another relative in Greece to take care of them. The children were placed in a foster family and they were put by the Prosecutor under the protection of the Organization “METADRASI – ACTION FOR IMMIGRATION AND DEVELOPMENT in Greece.
Regarding his minor children, it is emphasized that it was the first time that they separated from their father after the tragic loss of their mother in 2015. All three of them have faced many difficult situations all these years as Syrian nationals in Turkey but they were never experienced a separation. However, despite the above difficulties due to Mr N.S’ detention, it was possible for them to communicate for the entire period, at Mr N.S’ request to the Prosecutor. Ensuring the best interests of his minor children and preserving their normal mental state and care was and is Mr N.S’ major concern.
Pursuant to the acquittal of the Single-Member Criminal Court of Kalamata, according to which he was acquitted of all charges against him, Mr N.S was released from prison and then went to Athens, where he is temporarily staying in order to prepare the conditions for his reunification with his children. To date, he has not been granted an asylum seeker card, nor has any reception conditions been activated (shelter, allowance), although his status as an asylum seeker has been established by the competent services for his release.
Mr N.S was prosecuted and was put in a pre-trial detention for a year while deprived from his children, in spite of the fact that he had produced since the beginning all the necessary documents proving his whereabouts (documents of temporary protection in Turkey, relevant correspondence with UNHCR, certificate of his wife’s death etc) while he has been subjected to DNA test for establishing his parenthood.
Mr N.S is a typical victim of the implementation of EU deterrence policies: the systematic and unlawful criminalization of refugees-and often of their rescuers- for irregular entering in EU territory, has become, nowadays a tool affecting and destroying the lives and freedoms of many people who are systematically deprived of their basic rights and guarantees, as provided by the rule of law, depriving them also of their protection.
WE MUST PUT AN END TO THE UNLAWFUL CRIMINALIZATION OF REFUGEES FOR IRREGULAR ENTERING IN EU TERRITORY
Legal aid organizations express concerns regarding the unprecedented administrative practice of the Regional Asylum Office of Lesvos, which goes against Greek, European and International law
The undersigned legal aid organizations operating on the island of Lesvos have been surprised to learn that, from 15 to 20 November, the Regional Asylum Office (‘RAO’) of Lesvos has, without any prior notice, served negative asylum decisions on 28 asylum seekers from Sub-Saharan African countries without conducting the legally mandatory asylum interview.
The Administration justified its decision on the basis of its ‘inability’ to secure interpretation for languages spoken by the asylum seekers. The reasoning of the Administration, which was repeated in an identical manner in all the decisions, was that “the asylum seeker did not attend a personal interview since repeated attempts to find interpretation services for the mother tongue and the language of communication of the asylum seeker proved unsuccessful”. What is more, in one case, the application for international protection was rejected without conducting an interview because, according to the decision of the Asylum Office, finding interpretation for . . . Portuguese, proved impossible.
However, the omission of the personal asylum interview due to the inability to provide interpretation constitutes a violation of EU law. In addition, the fact that the majority of the applicants were rejected only a few days after they lodged their asylum applications is in direct contradiction to the statement of RAO Lesvos about “repeated and unsuccessful attempts to find suitable interpretation”.
Further questions arise from the fact that all the decisions were issued urgently and were signed by the same person, namely by the Head of the RAO of Lesvos, while in many cases the applicants were served fictitious invitations to interviews scheduled for the same day that the negative decisions were issued. It must be noted that the relevant negative decisions were served in languages it is uncertain if the asylum seekers understand. Moreover, the hearings of the appeals were scheduled in just a few days and the asylum seekers were never informed about their right to free legal aid, rendering the right to an effective remedy a dead letter.
Moreover, the Administration has rejected asylum applications, despite having assessed as credible the evidence in the administrative file of applicants for refugee status. For example, the Administration rejected an applicant even though it had accepted that he had been subjected to torture by his country’s authorities. In another case it rejected the asylum claim, although it was acknowledged that jihadi militiamen had attacked the applicant and killed two of his brothers because they were Christians.
This unprecedented for national, European and international legal standards, action of the Administration to decide on international protection claims without conducting a personal interview serves the purposes of another arbitrary practice which has been ‘tested’ on the island of Lesvos since mid-2016. Specifically, 27 of the 28 rejected applicants mentioned above have been arbitrarily detained at the Lesvos Pre-removal Detention Center (P.R.D.C.) since the first day of their arrival in Greece, as part of the program of detention of applicants considered as coming from ‘low refugee profile’ countries. The purpose of this program is to complete the entire asylum procedure before the release of the applicants from detention after the expiry of the maximum time limit for detention of asylum seekers. In this way, in the event of their rejection, they can be immediately returned to Turkey. However, this practice goes directly against the principle of individualized examination of any application for international protection and the prohibition of discrimination.
Conducting an asylum interview is a cornerstone of the process of examining an application for international protection, as it provides applicants with the opportunity to fully explain the reasons why they were forced to leave their country and are unable to return. Any omission of a personal interview constitutes a violation of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. In addition, the importance of the personal interview is also illustrated by the severe legal consequences for asylum seekers who do not appear in person for the interview.
This unlawful practice by the Administration does not occur in a vacuum, but is part of significant regression in relation to the procedural guarantees and rights of asylum-seekers which has become apparent for some time now from the announcements of the new government, which has been sanctioned with the adoption of the new law on international protection, 4636/2019. Additionally, it coincides with the Government spokesperson’s announcement of 20 November 2019 for a new ‘operational plan for the management of the migration/refugee issue’ that will include expanding the use of detention with the replacement of current structures with closed Reception and Identification Centers (RICs) and the creation of new Pre-removal Detention Centers (P.R.D.C.).
The Lesvos RAO follows practices that do not adhere to our legal acquis and breach national and EU law, which we believe is important to highlight. Moreover, these practices expose our country to future condemnations by European and international courts and institutions.
We call on the competent Greek authorities to respect the law and take the necessary steps in order to revoke all the above decisions, to restitute the harm caused to the asylum seekers, and to refrain from similar practices in the future.
Signing organizations: HIAS Greece, Refugee Support Aegean [RSA] Greek Council for Refugees, Equal Rights Beyond Borders, Legal Center Lesvos, Danish Refugee Council [DRC] and FENIX Humanitarian Legal Aid.
On 4 November 2019, the European Court of Human Rights issued a decision under Rule 39 indicating to the Greek Government to transfer two unaccompanied brothers to an accommodation with reception conditions which are compatible with Article 3 of the Convention and the minors’ particular status.
The two unaccompanied minors have been detained for almost 15 days in police station cells in implementation of the authorities’ policy of ‘protective custody’. Their detention takes place until today in degrading conditions detrimental to their mental health ; in cells that are completely inappropriate for detention longer than few hours, in premises where adults, including detainees under criminal law procedures/provisions are held, with no yarding, no natural light and fresh air, no access to doctor and proper hygiene conditions, no outdoor or indoor activities, no access to the outside world, no way to communicate with their family members and no information about the duration of their detention.
Since their arrival in Greece, the authorities have failed to provide the minors with the protection prescribed by national, European and international legislation. The minors had previously been detained for about 12 days upon arrival and have not received any guarantees during the time they underwent reception and identification procedures. A few weeks after their release from their initial detention, and after appearing before the competent asylum authorities to complete their asylum registration and family reunification procedure, they found themselves detained again in a police station behind bars.
RSA notes that it is the second time in less than a month, and at least the third time during this year, that the Court indicates to the Greek authorities to transfer unaccompanied minors from detention to safe accommodation.
The Court’s decision to grant interim measures in this case highlights once more the authorities’ unlawful practice to hold unaccompanied minors in degrading conditions, in implementation of their so-called ‘protective custody’ policy, as well as the absence of an effective protection policy for unaccompanied children in Greece.
RSA reiterates its condemnation about the widespread use of the so called ‘protective custody’ in general and in particular in police cells that are not designed even for detention for adults for more than a few hours. RSA notes that detention is not the only violation of their rights, refugee children face in Greece. Inefficient identification of minor children, gaps in the age assessment procedures, inadequate or absent reception conditions, insufficient appropriate shelters, the lack of an effective guardianship system for unaccompanied children, lack of consistent guarantees in the asylum procedure and not ensured access to education further endanger their rights and deprive them of effective protection.
RSA stresses that the lack of a coherent protection policy for refugee children does not relieve the state from its obligations to ensure their rights and protection.
RSA further emphasizes that apart from the minors represented by our organization, many more unaccompanied children remain detained in police stations, and Pre-Removal Centers in similar conditions. In particular, according to statistics of the National Centre for Social Solidarity, as of 30 September, there were 238 unaccompanied children in protective custody. Not to mention that, in the same police station concerning the application before the Court, more children remain in detention at the time of the publication of this statement.