'Rule of flaws': How Greece is putting refugee solidarity on trial

On Friday 13 January, 24 aid workers went to trial in Greece. Their charges – labelled ‘baseless’ by human rights monitors – have been understood as politically motivated based on the defendants’ work in refugee aid and contributing to the rising tide of criminalisation that aims to deter refugees from entering Europe.

Last week’s trial was just the latest instalment of a four-year-long tragedy of errors. On 21 August 2018, Sara Mardini – whose story of fleeing Syria to seek asylum in Europe is told in Netflix hit The Swimmers – was arrested at Lesvos airport.

When Seán Binder, her colleague at the Greek NGO Emergency Response Centre International (ERCI), went to the police station to meet her, he too was taken into custody. Shortly after, the field director of ERCI, Nassos Karakitsos, was arrested.

Thus began the trio’s 106 days in a maximum-security prison, which included moments of solitary confinement and being handcuffed to murderers.

"'This wasn't justice – justice would have been being found innocent four years ago'"

Their ordeal was never far away from farce. In November 2021, the misdemeanour trial began in Lesvos. Shortly after, it was cut short due to a procedural error by the prosecution. The defendants were then told that the court did not have jurisdiction and that their case would be heard by the North Aegean Court of Appeals.

This month, having waited more than a year, the defendants returned to court for the long-awaited misdemeanours trial.

The charges were dropped for 22 of the defendants due to further procedural errors, including issuing indictments that were untranslated or missing pages, or failing to issue them to some defendants at all, making the nature of the charges incomprehensible.

The remaining two co-defendants, both Greek nationals, were referred to lower courts, one on charges of forgery, and the other on charges of providing information to an ‘illegal organisation’.

Justice delayed, justice denied

Though this undoubtedly represents a small victory, the case has left major gaps.

“It’s very bittersweet,” Seán told The New Arab. “Obviously I’m happy not to be back in the clink. But that wasn’t really a fear I had. We aren’t guilty and I wanted to prove this at trial. This wasn’t justice – justice would have been being found innocent four years ago.”

This characterises the strategy behind state prosecutors’ attempts to criminalise solidarity with asylum seekers. Aware that the allegations are unfounded, the state prosecution brings flimsy evidence littered with procedural errors, postponing trials and referring them to new courts.

Such delays compensate for an unwinnable case, forcing aid workers to live through purgatory and de facto jail time – as in the case of Nassos, who as a Greek national is under restrictions on his movement.

This strategy is visible across Europe. In a comparable case, search and rescue workers in the Western Mediterranean who worked on board the Iuventa rescue boat have been on trial since May 2022.

Their case has also been marked by errors, such as the failure to provide interpretation during cross-examination, while the court is still discussing procedural matters. Much of the case seems designed for the camera rather than the judiciary; the Italian authorities have live-streamed aspects of the case, such as their search for weapons and explosives (to no avail).

For the Lesvos defendants, the situation is not dissimilar. Claudia Drost, a co-founder of the campaigning organisation Free Humanitarians that is currently advocating for Sara, Seán, Nassos, and their 21 co-defendants, told The New Arab that she feared the Greek state was “implementing a strategy of postponement” by trying the misdemeanour charges only a few weeks before the end of the statute of limitations.

"Despite the fortitude of Sara, Seán, and Nassos in dealing with the charges levelled against them, their 106 days in jail combined with the four years of legal purgatory have undoubtedly had a chilling effect on the sector"

“They do this so when the charges are dropped on procedural errors, the prosecution can blame it on running out of time so they don’t lose face.”

Though dropping the misdemeanour charges for 22 of the 24 defendants is a welcome omen, the defendants worry about the felony charges.

While their misdemeanour charges included allegations of forgery, espionage, and use of illegal radio frequencies, the felonies include charges of facilitating ‘illegal’ entry of migrants, which carry a maximum sentence of 10 years per person ‘facilitated.’

No trial date has been set for the felony charges. “If the prosecution adopts the same strategy,” Claudia tells The New Arab, “then we could be waiting another 15 years until the statute of limitation elapses.”

A chilling effect

Despite the fortitude of Sara, Seán, and Nassos in dealing with the charges levelled against them, their 106 days in jail combined with the four years of legal purgatory have undoubtedly had a chilling effect on the sector.

In conversation with The New Arab, Amanda Muñoz de Toro, Executive Director of legal aid NGO Fenix, warned that, “the misuse of the legal system has spread fear among humanitarian organisations, big and small”.

Today, there is no search and rescue around Lesvos. A month ago, a two-month-old died after he was pushed onto the rocks by the waves – MSF reported that their staff were prevented by police from accessing the site of the shipwreck for two hours. No search and rescue were present at the scene, and the fate of the 16 passengers who went missing is still unknown.

Without search and rescue operations, or indeed aid workers in general, border violence only stands to increase. A report published last month highlighted that border violence has now exponentially grown across Europe and gone from being ‘sporadic’ to a ‘systemised approach’, including beatings, forced undressing, shaving of heads, dog attacks, and sexual assault.

Legal analyses from the European Centre for Constitutional and Human Rights (ECCHR) have shown that the nature of pushbacks is systematic, meaning extensive collaboration between state agencies to push back tens of thousands of asylum seekers each year.

Correspondingly, deaths have only increased. Often, pushbacks entail abandoning vessels at risk of shipwreck – the ECCHR identifies that as early as 2007, the Greek coastguard began the practice of destabilising or damaging migrant boats, dragging them to Turkish waters, and leaving the passengers to their own defences. With no search and rescue, they are left to die. 

“Harassment and persecution of solidarity results in more deaths at land and sea borders,” said Amanda. “It should be a shame upon all Europeans.”

"Without search and rescue operations, or indeed aid workers in general, border violence only stands to increase"

Rule of law, not 'rule of flaws'

A common refrain of the commentary during the trial was the demand for the rule of law as opposed to the ‘rule of flaws.’

“Europe speaks about the need for the rule of law. Yet what actually gets implemented is very flawed,” explained Seán. He sees his trial as a “micro example” of the “macro-level” systemic violence at Europe’s external borders.

Currently, laws are being built upon norms incompatible with international law, which results in the rule of law producing outcomes inconsistent with international human rights law.

The EU Facilitation Directive has been domestically translated into legislation such as Greek Law 4251, which holds a sentence of up to ten years for “facilitation of entry from Greek territory of a third country citizen” and over ten years for “captains or masters of a ship”.

In cases such as the Paros3, where three Syrian asylum seekers received a collective sentence of 439 years for steering a boat, human rights lawyers have argued that the sentence was legally sound.

The UN Protocol Against Migrant Smuggling criminalises enabling irregular entry, “in order to obtain, directly or indirectly, a financial or other material benefit”. In contrast, EU law does not require material benefit, paving the way for humanitarians to be prosecuted for simply assisting asylum seekers. 

The sad reality is that preventing future criminalisation now relies on public outcry rather than the law. The humanitarians most vulnerable are those from the country itself, who rarely benefit from the same diplomatic support.

Worse yet is the situation of migrants. The case of the El Hiblu 3, which threatens decades in jail for three teenage victims of a shipwreck, has not garnered the same amount of attention.

For many humanitarians and solidarity workers, the widespread public support for the Lesvos defendants has reignited their hope in humanity. They hope this case will be the impetus of reform of EU laws to ensure that such incidents cannot happen again.

Tiara Sahar Ataii has worked in humanitarian response for the UN and major NGOs in 11 countries. She founded SolidariTee, which fights for refugee rights. She is also part of the 2022 'Forbes 30 under 30'.

Follow her on Twitter: @tiara_sahar