A Change in the Criminalisation of Asylum Seekers?

Guest post by Henrik Kjellmo Larsen. Henrik is a PhD candidate in The School of Social Science at Monash University. He spent four months as a field coordinator doing search and rescue on Lesvos in 2015 and has since then been working in the field of humanitarian and violent borderwork, criminalisation of humanitarian workers, security, global governance and human rights. In his PhD he investigates the political economy of migration and how spontaneous volunteers in humanitarian crises are affected post-volunteering.

In December 2022, two Afghan asylum seekers in Greece got their sentence for facilitating people smuggling reduced from 50 years each, to acquittal for one and eight years for the other. The appeal case had been postponed for almost three years by the time Amir Akif and Akif Razuli could be said to have won the case against the Greek government in Mytilini court on the Greek island of Lesvos. In this post, I will reflect on why this trial could bring hope that there could be a change in Greece’s relentless criminalisation of asylum seekers and migrants.

Amir and Akif arrived on Lesvos in September 2020, more than half a year after Greece suspended the right to seek asylum. At first, the border closure was a response to Turkey opening its borders to Greece on 28th February 2020 where more than 30,000 of refugees and migrants gathered at the Turkish-Greek border which resulted in violent clashes with Greek riot police. Initially meant to be closed for a month, the borders remained closed, this time justified with the public health crisis brought about by the Covid-19 pandemic, and to reduce the pressure on island refugee camps. The initial general suspension of all migration and asylum services, which is against European law and the Geneva convention, was lifted on 18th May, when a limited service was resumed.

According to the Greek organisation Legal Centre Lesvos which offers legal support to asylum seekers in the country, Amir and Akif, were, without evidence or witnesses, sentenced to 50 years in prison each accused of “facilitating unauthorized entry of undocumented migrants”, i.e., people smuggling. In their short statement before the initial sentence, they claimed to have been attacked by the Greek Coast guard, who attempted to push the boat back into Turkish waters – a so called “pushback”.

The court case I sat in on was in Greek and was translated to international press and solidarity workers by Greek journalists and lawyers. There is especially one point worth highlighting from the trial. The prosecutor asked the defendants if they had been subjected to a “pushback”. The questions were translated by the Greek-Arabic translator, who, according to the journalists present, was not able to adequately translate “pushback” to the defendant, making their responses unclear. Why am I then making such a point about one question that was not even clearly answered?

According to the Greek journalist Nektaria Psaraki who has been covering the criminalisation of asylum seekers for several years, and who was also acting as a Greek-English translator for the court, this is the first time a prosecutor brings up the topic on pushbacks when questioning asylum seekers in a Greek court.

This might seem trivial, but it is in fact a significant recognition by the Greek prosecutor. The Greek state has for years been accused of performing illegal pushbacks in the Mediterranean, accusations they have denied from day one. Even after the Greek court on 4th July 2022 found the Greek coast guard guilty of preforming an illegal pushback to cost 11 lives back in 2014, evidence shows that the Greek coast guard continues with the illegal practice.  The verdict that was enforceable on 8th October, reads that the Greek coast guard did not do enough to save the lives of those who drowned, violated their right to life and subjected survivors to demeaning treatment when strip-searching them in public.  

Make no mistake, although the Greek state continues of deny all accusations of being involved in this illegal practice , it was beyond any doubt a pushback.

Greece is not alone in conducting illegal pushbacks on the Mediterranean

Countless witnesses, pictures and videos confirm that also Libyan, Italian and Maltese coast guard routinely preform illegal pushbacks. Frontex has been found to be complicit in these practices. The newly published OLAF report published by the EUs anti-fraud agency, concluded that Frontex had neglected their responsibilities, namely to ensure the protection and promotion of fundamental rights for refugees and migrants. Among other omissions, it has been revealed that Frontex mishandled evidence, covered up proves of pushbacks and did not report or investigate accusations of pushbacks according to Frontex’ own rules. That European authorities such as Frontex and European coast guards for years have been conducting illegal pushbacks in the Mediterranean almost daily is beyond any doubt.

Halfway through the court case, the persecutor stood up and gave a thorough account of just how challenging this case was to him. My translators told me how the prosecutor proclaimed to the court that he agreed with the critique of the Greek legal system and the discriminatory treatment of asylum seekers, but that although he wished he could run the case differently, he regretted that he was bound by the constraints of the Greek law. This surprised me. After having been researching the criminalisation of humanitarian actors and asylum seekers, as well as the use of violence in border areas for years, this is the first time I have read or heard an outright recognition of Greece’s deeply problematic border and legal practice from one of their high officials.

In the court case, Akif was acquitted whilst Amid was found guilty of facilitating unauthorized entry into Greece and sentenced to eight years. The only evidence the court had of his guilt was that he admitted to have taken turns to drive the boat the 28 migrants set out in from Turkey. Due to mitigating circumstances, the sentence was nevertheless reduced from 50 to eight years. According to Greek law, having been held in pre-trial detention for almost three years, Amid can apply for early release and will most likely be free within a few months.

This is just one court case, and the consequences for two individuals who have been imprisoned for making use of their right to seek asylum. Between 2015 and 2019 more than 7,000 people have been arrested accused of being people smugglers in Greece. Although some a of these individuals were likely actual smugglers, there is ample reason to believe that most of them are like Amir and Akif, simply being criminalized for seeking asylum.

We can only hope that this court case, with the prosecutor’s recognition of pushbacks, and acknowledgment of Greece’s problematic treatment of asylum seekers is the start of a more humane treatment of asylum seekers in Greece in line with international commitments.

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