Seek Acquittals on Current Charges; Drop Felony Investigation
Greek prosecutors should request the acquittal of humanitarians on trial for search-and-rescue efforts that are protected under international human rights law and Greek law, Human Rights Watch said today. The trial is set to begin on January 10, 2023. The case against two of the defendants, Sarah Mardini and Sean Binder, effectively criminalizes life-saving humanitarian solidarity for people on the move and is riddled with procedural flaws that undermine their rights to due process and a fair trial.
Two dozen defendants face trial in Mytilene, on the island of Lesbos, on misdemeanor charges related to Emergency Response Center International (ERCI), a registered nongovernmental search-and-rescue organization that regularly cooperated with Greek authorities on missions in Greek waters and on Lesbos from 2016 to 2018. A European Parliament report identified it as “the largest case of criminalization of solidarity in Europe.”
“This case is really an indictment of the Greek authorities, who are going after people for saving lives the authorities didn’t want them to save,” said Bill Van Esveld, associate children’s rights director at Human Rights Watch. “Meanwhile the Greek government continues to restrict humanitarian rescue while also illegally pushing back refugees and migrants, forcing them into the deadly situations that humanitarians tried to alleviate.”
Prosecutors should also drop a related felony investigation, in which defendants have not yet been charged, Human Rights Watch said. In 2021, prosecutors had split the misdemeanor charges from felony charges in the case so the misdemeanors could be tried before expiring under Greece’s five-year statute of limitations.
The misdemeanor case has prejudiced defendants’ rights to be promptly informed of criminal charges, in a language one understands, and to prepare a defense, Human Rights Watch said. The indictments sent to the accused list a variety of charges against various individuals but refer to them with the numbers 1 to 24, with no explanation of whom each number represents, leaving the defendants to guess which charges they are facing. The indictments are missing pages and were not translated for defendants who do not know Greek into a language they understand. Lawyers familiar with the case have said that some of the defendants never received an indictment or summons.
The right to be present at one’s own trial is enshrined in international, European, and Greek law, but Mardini, who lives in Germany, was previously barred from entering Greece to be present at her own trial. It is not clear if she will be allowed to enter for the trial on January 10, her lawyers said.
Mardini had traveled by boat from Turkey to Greece in 2015 as an asylum seeker from Syria. When the engine failed, she and her younger sister Yusra, who swam for the Refugee team at the 2016 and 2020 Summer Olympics, helped save others on board by swimming and keeping the boat afloat. Their story has been made into a Netflix film.
Mardini was enrolled at Bard College Berlin and took leave from her studies for a semester to return to Lesbos as a volunteer with the search-and-rescue group. She was arrested on August 21, 2018, when she was about to fly home. Binder, a German national, was arrested the same day when he went to the police station where colleagues said Mardini had been taken. They were detained for 106 days. Other defendants include Nassos Karakitsos, a trained rescuer, and Panos Moraitis, the founder of the search-and-rescue group, who were also held in prolonged pretrial detention in 2018, forcing the group to cease its operations. There is currently no search-and-rescue organization active on Lesbos.
The only trial hearing so far, in November 2021, was adjourned because the prosecution had filed the case before the wrong court, which held that it was not competent to try the case. The case was referred to the Appeals Court of the Northern Aegean, also on Lesbos.
The misdemeanor charges against Mardini and Binder as well as other defendants include espionage and forgery. The maximum prison sentence that can be served for convictions on misdemeanor charges is eight years.
The charges are based on a Greek police report that contains blatant factual errors, including claims that some of the accused participated in rescue missions on multiple dates when they were not in Greece. The report also cites communications between humanitarians that police surveilled on dates outside the time frame of their warrant.
The espionage charge is based on humanitarians’ efforts to identify migrant boats in distress, including by monitoring Greek Coast Guard and Frontex radio channels and vessels. However, as the police report acknowledged, anyone with a VHF radio can access the unencrypted radio channels.
The forgery charge alleges that police found a fake military license plate beneath the civilian plates of a vehicle that Binder and Mardini drove, and that the pair intended to enter restricted-access military areas on Lesbos where asylum seekers and migrants sometimes disembarked. But the report does not include any evidence that they tried to enter restricted areas. It is not clear how they could have pretended to be driving a military vehicle because their car prominently displayed the logos of their rescue group. They stated that they were unaware of any fake plates.
A separate felony case misrepresents the search-and-rescue group’s humanitarian operations as human smuggling by a criminal organization. Yet the Greek law that was allegedly violated, Law 4251 of 2014, explicitly provides that the offense does not cover helping asylum seekers. The felony case, which has not yet led to any indictments, also mischaracterizes legitimate fund-raising activities by the group, which was a registered nonprofit organization, as money laundering. Each felony carries 5 to 10 years in prison, and a third charge, facilitation of illegal entry for foreign nationals, carries 10 to 20 years for each migrant.
In June, the United Nations Special Rapporteur on human rights defenders, Mary Lawlor, while presenting her preliminary findings at the end of a 10-day mission in Greece, described an environment of fear and insecurity for human rights defenders in the country, particularly those defending the rights of migrants. In its Rule of Law report published in July, the European Commission noted the narrowing space for groups working with migrants and asylum seekers in Greece.
During the first half of 2022, the United Nations High Commissioner for Refugees (UNHCR) estimatedthat 1,200 people drowned in the Mediterranean trying to enter Europe, in addition to 3,100 people who died in 2021. The Greek authorities have unlawfully pushed back thousands of would-be asylum seekers and migrants to Turkey from the Aegean Sea.
“The prosecution of Mardini, Binder, and others has not only had a chilling effect on saving lives, it has turned laws and facts on their heads and placed the liberty of humanitarians from across the European Union at stake,” said Van Esveld. “Germany and other EU member states should condemn this prosecution for the scandal it is.”
(c) 2022, Human Rights Watch