25 August 2023

No Protection

The biggest wildfire ever in the EU is currently raging around the Greek town of Alexandroupoli in the far east of the country, almost on the border with Turkey. This border, marked by the river Evros, is one of the escape routes through which people who are not regularly allowed into the EU cross the external border irregularly in search of a space for themselves and their family where they can be a little less uncertain of their life, their freedom and their human dignity than they are at home. This week in the village of Havantas just north of Alexandroupoli, 18 of these people, including two children, were trapped by the flames and burned alive.

It is possible that the number of dead will soon rise. Currently, right-wing militias are apparently on the prowl in the area, inciting the population to hunt down refugees by claiming that the fires were set by migrants. Although this is a lie – lightning strikes started the fire – and completely implausible to begin with, many people apparently believe it anyway. I can guess why. It is getting hotter and hotter, the fires and droughts more and more devastating, the anxiety greater and greater, the tension between the poles of the ever-tightening conflict over the ending of fossility more and more unbearable. The temptation to discharge this tension violently at the expense of an alien, unfamiliar minority is felt everywhere in Europe, not only in the Evros Delta. This is how pogroms occur. This is how fascism is born. It is happening now, in Greece, everywhere.


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The great refugee movements of the present are mostly, indirectly or directly, themselves a symptom of this conflict and the field of tension it creates. Accordingly, the temptation to blame the refugees for their very presence is growing everywhere: It must be somehow criminal that they are there in the first place. There must be some way to punish them for being refugees.

The NGO borderline-europe has been documenting and analysing the increasing criminalisation of refugees in Europe for years. This week, two young Sudanese were arrested in France, one of them a teenager of 16 or 17, survivors of one of the many hardly noticed boat accidents on the seas surrounding Europe, in this case on the English Channel. The gangster organisations running the smuggling business are reluctant to expose their own to the deadly risk of the crossing, preferring to let their passengers take the wheel themselves in exchange for a discount. This was apparently also the case with the two young Sudanese men. Now they will probably be charged with involuntary manslaughter and aiding and abetting illegal entry. The smuggler and the smuggled fall into one.

DANA SCHMALZ, in a VB post I’d particularly like to urge you to take note of this week, takes this case as an opportunity to take a closer look at the limits of this sort of criminalisation under international law – which are narrower than one might think. There is an additional protocol to the United Nations Convention against Transnational Organised Crime, which concerns the trafficking of migrants by land, sea and air. According to this, trafficking is a crime to protect migrants, not to punish them.


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Meanwhile, in Germany, if Federal Interior Minister Nancy Faeser gets her way, asylum seekers will in future be punished with up to three years in prison if they provide “incorrect or incomplete information” in order to be recognised as eligible for protection. So far, it is only punishable to tell the untruth in the procedure for a residence permit, but not in the asylum procedure. There is a reason for this: in 1982, the legislator deliberately decided against criminalising false statements in the asylum procedure, according to a press release of the German Bar Association. Those who are criminals are the gangs that draw eye-watering profits from the refugee-trafficking business. In order to prosecute them, one needs the testimony of the asylum seekers. But if they themselves are threatened with punishment, they can and will refuse to testify. The less it is organised crime that is on trial, and the more their victims themselves, the less weight this consideration still carries, I suppose.

This week on Verfassungsblog…

… has been rather quiet otherwise, for seasonal reasons I suppose.

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What we have been doing here for many years and every day is publishing academic texts that often deal with processes and developments that are often summarised in legal and political science under the term “democratic backsliding”. This is exactly what economist Sabyasachi Das has done, finding a number of indications of systematic discrimination against Muslim voters in India’s 2019 general elections. If any proof were needed that the world’s largest democracy, under its current regime, is undergoing something that indeed may correctly be termed democratic backsliding, it was promptly provided: his university forced him to resign, and his faculty, who stood by him, got a visit from the secret service. This is not the only case that shows what has become of academic freedom in India, as ANMOL JAIN describes also from his own experience.

Is the protection of privacy in good hands with the Indian government? The Modi regime is suspected of using spyware against their political opponents. Recently, a new Data Protection Act came into force in India, and NIVEDITHA PRASAD has grave doubts about the independence of the institutions it installs for the purpose.


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In Germany, the Federal Office for Information Security (BSI) has a new president, but after the hullabaloo over her predecessor’s resignation and a change in the law, she is now a “political civil servant” and thus much easier to dismiss than the former. Both independent and dismissible for political reasons? NICOLAS ZIEGLER considers this is somewhat problematic.

In Sweden, the government is considering banning the burning of the Koran for the occasion. ESTER HERLIN-KARNELL thinks such a ban is compatible with freedom of expression and has little sympathy for the libertarian stance taken by the Swedish judiciary on this issue.

A rich Finn was fined after a boat trip across the Baltic Sea to Estonia because he could not show his passport when returning to Finland. The fine, as is customary in Finland, was quite extraordinary because the man earned no less than 700,000 euros a month. The ECJ found this disproportionate. SAKARI MELANDER is annoyed and recalls that Finnish criminal law operates with day fines based on the payer’s financial circumstances – a system that the ECJ, with its understanding of proportionality, needlessly destroyed. The case, according to Melander, is an example of the problematic effects of EU law on criminal law.



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JENNY ORLANDO-SALLING reports disturbing news from the smallest EU member state Malta: There, a judge had to decide on the question of whether an Austrian judgement against a gaming company – these are comprehensively shielded from liability by law in Malta – must be enforced. The judge, with a sweeping reference to the Maltese constitution, argued that, no, in fact it doesn’t. “A broken justice system and an out-of-date Constitution are a lethal duo,” she concludes.

To return to the starting point: ANNICK PIJNENBURG takes a close look at the “strategic partnership” between the EU and Tunisia, which is sinking ever deeper into authoritarianism, to jointly fend off refugees. Not only what was agreed is very problematic, but also how. The fact that agreements like this only deepen the dependence of refugees on criminal trafficking gangs does not seem to be an aspect that is assigned a lot of weight to in contemporary European migration policy. The baddies must be punished, huh? Aren’t we sleeping well behind the thick walls encircling the space of freedom, security and justice…

That’s all for now. All the best to and see you next week!

Max Steinbeis

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