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Greek courts start to reject unlawful criminalisation of asylum-seekers


Published on May 3, 2018


Since the failed coup in July 2016, the Turkish authorities have incarcerated thousands of citizens suspected of being involved in the plot, including journalists, teachers, police officers and judges. This unprecedented crackdown on civil society has forced many to flee and seek asylum in Europe. But for some of them, crossing the border often marks the beginning of new criminal trials which put them at risk of being returned to the regime they were trying to escape from.

The following case, from our LEAP member Alexis Anagnostakis, illustrates how local courts in Greece are responding to the criminalisation of asylum seekers.

Emin (not his real name) is a Turkish cardiologist who used to practise in Istanbul up until the moment he was accused of attempting to assassinate President Recep Erdogan and “destroy the Turkish Republic”. The accusations came shortly after the attempted coup in July 2016. Emin’s case is only one example of thousands more people who were charged, arrested and incarcerated by the Erdogan regime on suspicions of involvement in the rebellion.

As the arrest warrant against him was temporarily invalidated by a local court in Turkey, Emin fled from his country to seek asylum in Greece. In the meantime, his passport had been invalidated and his bank account frozen.

Hands on barsEmin travelled to Greece by sea and arrived on a small island, with the intention to seek asylum on grounds of political persecution. However, because he had no valid documents with him, he was charged with illegally entering the country.

After the charge, he spent almost a month in police detention, in the absence of any valid reason to detain him and without seeing a judge. When his case was finally heard by a local prosecutor in southern Greece, the prosecutor discharged him on the ground that he had no choice other than entering the country without documents to seek asylum, by virtue of the protections offered by the Geneva Convention on Refugees.

In fact, the 1951 Geneva Convention, which was transposed into Greek law in 1959 by law no. 3989/1959, grants criminal immunity to people fleeing persecution for illegally entering the country. Actions for which criminal immunity must be guaranteed include entering without legal documents or carrying fake documents. This provision (which is known as the “state of necessity” principle) aims at allowing people who flee persecution to effectively seek asylum even if they do not have legal documents with them, which very often were either lost or invalidated by the same authorities who persecuted the asylum seeker, just like in Emin’s case.

The Greek court’s decision was however an exceptional case, as asylum seekers often get caught up in the criminal justice system without due safeguards. For instance, asylum seekers often don’t have access to a lawyer because courts are not obliged to appoint one in cases like Emin’s, which are treated as misdemeanours, and for the most part they do not voice their claims appropriately or are not aware of their rights or don’t ask for them.

Criminal defence lawyers, in turn, do not always raise arguments related to the State’s obligations under the Geneva Convention as they lack awareness of this instrument. Appeals are also used poorly: as a result, higher courts are not given the opportunity to establish authoritative case-law on the issue, and local courts continue to interpret Geneva obligations differently.

For the most part, courts have been reluctant to accept the criminal immunity argument for asylum seekers. However, Emin’s case brings some hope as, following this decision, two more local courts in Athens discharged a police officer and a teacher who had also sought asylum after fleeing from Turkey. The two were arrested in a Greek airport, from where they intended to fly to another country, and had no valid legal documents with them.