The Ghost of Moria

The criminal court in Mytilini, the capital of the island of Lesvos, is known beyond the island’s borders for its at times draconian sentences against migrants and those who try to help them. A few years in prison for allegedly steering a boat. The accusation: Trafficking of migrants. People handing out bottles of water to stranded persons are convicted of promoting illegal residence. Unfortunately, none of this is new. The criminalization of migration is not something that Greece invented; it is rather a Europe-wide trend that I also observe in Germany.

On Monday, March 4th, the trial against the Moria 4 begins. I can watch it with the help of a live translation by Greek activists. The Moria 4 are the four of the six migrants who were accused and convicted of setting fire to Moria in 2020, the emblematic refugee camp.

I am pursuing my German legal traineeship, currently at the Legal Center Lesvos, where three of the four lawyers representing the defendants work. Recently, I had to study German criminal procedural law for my written exams, so I’m looking forward to comparing it with the practice of the Greek criminal courts. The proceedings at first instance have already attracted attention due to numerous violations of the principle of fair trial. First, there was no translation of the reasons for the verdict into the defendant’s language, Farsi. Then, there is the indictment of the four Afghans before the regular criminal court, although three can produce birth certificates proving that they were minors at the time of the alleged crime. In addition, the trial at the court of second instance was postponed for one year without a possibility to appeal (the defendants have been in custody for 3.5 years at the start of the appeal process). Thus, it will be even more interesting to see how the Mytilene criminal court will handle the proceedings against the Moria 4 in the court of second instance.

Trials are not equal

On Monday, at the entrance to the court at 8.30 a.m., I experience my first surprise. Criminal trials in Greece are not scheduled individually, but in a series of trials (six) over a period of several weeks, starting on March 4th. The trial of the Moria 4 is in 6th place. So, before the trial of the Moria 4 begins, the trials in places 1-5 get partly processed, partly postponed, and partly taken up again during the ongoing trial of the Moria 4. The chronological order is not followed anyway.

During the trial, which finally begins on Wednesday, I am immersed in a court culture which I have yet to understand. It begins with the seating arrangements of the public prosecutor and the judges. It is only on the second day of the trial that I realize, that the “public prosecutor” sitting opposite the defendants’ lawyers is actually the joint plaintiff’s representative. The woman sitting to the left of the judges, who I thought was a clerk, is in fact the public prosecutor. The public prosecutor and the judge sit next to each other in an enthroned position. This spatial blurring of the separation of powers offends me. Acoustically, the atmosphere is also different from what I am used to back home of my bureaucratic German education. Sometimes, the lawyers, judges and the public prosecutor talk passionately to each other for half an hour. Folding doors allow people to come and go throughout the entire proceedings. Breaks are determined without a fixed time, so you are either there when the court proceeds or not. The whole situation sometimes reminds me more of a train station where people are awaiting their trial while the legal actors are arguing loudly in the front. Only the defendant sits quietly, facing the bench the whole time.

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One out of four

Correct. The defendant. The second instance court has recognized, that three of the four defendants were minors at the time of the arson. These three are released from custody and their cases are referred to the juvenile court. I am relieved about this first important decision. However, my confidence in the independent judgment of the judges crumbles as the trial progresses. The fact that the public prosecutor does not want to know Farsi as an official language, when- right at the beginning of the trial – it is discovered that the translator is not present, seems merely bizarre to me at this point. In the course of the trial, however, a read thread emerges: the stigmatization of the accused as a migrant.

The witness’ statements consistently paint a picture of Moria that is characterized by chaos, misery and a lack of medical care during Covid. What they are not conclusive on, however, is who actually set the fires. The only evidence linking the defendant to the possible arson of Moria is the written testimony of an alleged neighbor in the camp, who can no longer be located or identified.

Moreover, none of the police officers who will testify during the trial were present when the defendant was identified by the missing witness. No one can say anything about how the defendant was identified amidst the chaos of the fires in Moria. None of the police officers or other witnesses were able to observe any arson at all. However, some “believe” that Moria was set on fire by the migrants who were forced to live in the camp. None of the police officers who testified recorded the witness statement. There is no record of the questioning. Nevertheless, the judges allow the written testimony of the disappeared witness to be read out loud as the main evidence.

They also do not interrupt the prosecutor when she questions the defendant mainly about his history of migration. Not even, when she does not understand why he fled Afghanistan and finds it dubious, that the defendant used the money he had saved to hire a smuggler to flee to Greece, instead of buying a false passport in Iran.

In her pleading, the prosecutor tries again to compensate for the lack of evidential value of the testimony of “a ghost” (quote from the defence) by portraying the defendant as an ungrateful, lying, and untrustworthy migrant (quote: “not a refugee!”). In any case, in the prosecutor’s argument, it was not the migrants in Moria who were the victims of the fires (quote: “Would they take us in in Afghanistan?”), but the owners of the neighboring properties. I am puzzled by the lack of evidence. And astonished how little is being said about the arson itself and how much is being said about the residents of the camp, their supposed ethnic backgrounds and questionable migration motives.

I receive the verdict on Friday afternoon via WhatsApp, because I had to go home and study for my oral exam. Eight years in prison. Without parole, mitigating circumstances are only partially recognized. It is argued that, after all, they didn’t know the defendant’s criminal record and couldn’t obtain it because of the Taliban rule in Afghanistan. The fact that the defendant had not only learned the Greek language and attended school while in custody, but had also otherwise behaved impeccably, was taken into account. No account was taken either of his young age or of the fact that this may have been his first conviction. After all, they argue, this is a serious offence, not a juvenile offence. And that it was also not known whether he had a criminal past in Afghanistan. Thus, the penalty assessment also fits into the narrative of the per se dangerous migrant, who in case of doubt isn’t assumed to be innocent but to have a dark criminal past.

One hour after the verdict has been pronounced, one of the translators writes a post that she just passed a restaurant where the public prosecutor is having dinner with the presiding judge. I think about the expansion of right-wing parties in the EU and Germany, the lawsuit that will probably follow before the ECHR (which will most likely be successful at a time, when the defendant has already been released from prison for good behavior) and my last client in the Legal Centre, who experienced three pushbacks. I realize: This news hardly upsets me anymore.

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The Week on Verfassungsblog

The role of the Federal Republic of Germany in the ongoing Gaza war is increasingly coming into the international spotlight. Due to the ongoing weapons deliveries to Israel, Nicaragua has now filed an application to initiate proceedings against Germany before the International Court of Justice. Nicaragua accuses the Federal Republic of facilitating genocide by aiding Israel and request the Court to indicate provisional measures obliging Germany, among other things,  to stop assisting Israel in so far as this assistance may be used in violating international law. ALEXANDER WENTKER and ROBERT STENDEL examine the procedural difficulties involved in the requests for provisional measures. In particular, they consider whether Israel should be included in the proceedings as an indispensable third party. Nevertheless, the International Court of Justice could rule on violations of international humanitarian law. Against the backdrop of the procedural difficulties, JUSTINA URIBURU discusses the potential positive effects of the case beyond its legal implications: increased international attention to the suffering in Gaza and the strengthening of Nicaragua’s ties with the United Nations institutions as it faces its own allegations of human rights violations.

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How can the Thuringian Constitutional Court be better protected? ZORA MACHURA and JAKOB WEICKERT continue the recent discussion by bringing up the possibility of using the instrument of “Organleihe” in accordance with Art. 99 of the German Basic Law. Should the election of constitutional judges be permanently blocked and no longer functioning, the Federal Constitutional Court could jump in. This fallback rule could be implemented by a mere state law – or by the coercive means of Art. 37 of the Basic Law.

In order to avoid the threat of a democratic erosion after the state elections in Thuringia, Saxony and Brandenburg, the necessary steps must also be taken at a party level. BENJAMIN HÖHNE is calling out in particular, but not only, to the CDU/CSU. They can help to keep the far right at a distance.

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The Indian Supreme Court has dealt with the immunity of Members of Parliament in an eargerly awaited ruling. According to the Court, if lawmakers accept payment for their voting behavior, they cannot claim immunity, as immunity only extends to “essential” legislative tasks. KARTIK KALRA explains why the ruling is good for the integrity of Parliament, but the court’s “essentiality test” also poses risks for the functioning of the legislature.  ANMOL JAIN takes the ruling as an opportunity to revisit the history and rationale of legislative privileges in India. While the law of parliamentary privileges still aims to protect the Indian Parliament from external threats, it overlooks the dangers posed by ruling majority parties within the Parliament itself. It is high time, therefore, to reconceptualize the law of legislative privileges.

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The Can Atalay saga has been discussed on this blog several times. Last autumn, it led to a spectacular confrontation between the Turkish Constitutional Court and the Court of Cassation (as discussed here, here, and here). In January, the Turkish Parliament added a new chapter to this saga by revoking the parliamentary mandate of the imprisoned lawyer. DORUK ERHAN takes this opportunity to reflect on the role of the parliament in Tayyip Erdoğan’s authoritarian system.

Belgium has introduced the new crime of ecocide, making it the first Western legal system to do so in a comprehensive way. DANIEL BERTRAM elucidates how this came about and whether the new offense is expected to provide stronger protection for the environment.

Worldwide, a growing number of climate litigation cases are being filed to pressure governments to increase their efforts to mitigate climate change. However, so far, the impact of climate litigation on actual greenhouse gas emissions is limited. THOMAS GROSS believes that while this does not speak against climate change litigation, it does call for greater attention to the role of governments and legislatures. Climate litigation remains important, but a profound and comprehensive transformation of society cannot be initiated by courts.

Elections in Brazil are organized by the judiciary. Now judges are also responsible for protecting upcoming elections from AI-supported misinformation. LUCAS HENRIQUE MUNIZ DE CONCEIÇÃO analyzes whether this may work.

Given the persistent scale of recurrent shipwrecks in the Mediterranean Sea, APHRODITE PAPACHRISTODOULOU argues for integrating AI systems into Frontex’s activities. She presents the recent decision OI/3/2023/MHZ by the European Ombudsman on the fundamental rights obligations of Frontex with regard to search and rescue (SAR) in the context of its maritime surveillance activities and calls for improving the decision-making process in responding to boats in potential distress and the overall SAR system.

In Hungary, Tamás Sulyok succeeded Katalin Novák, who had to resign due to the escalation of the presidential clemency scandal. VIKTOR Z. KAZAI presents a portrait of Sulyok, a former member and president of the Constitutional Court, which has become subservient to the Fidesz-dominated political branches. He argues that there is nothing to suggest that Sulyok will exercise greater autonomy and independence in his new Head of State role.

The Hungarian Parliament passed a law in December 2023 establishing a Sovereign Protection Office – a state administration which now possesses unfettered access to personal data to find and sanction supposed foreign agents among the Hungarian populace. While the European Commission already launched an infringement proceeding over the law, HENRY BARRETT shows how this last culmination is only the tip of the iceberg of the political instrumentalization of constitutionalism in Hungary.

Reflecting the acte clair doctrine in EU law (CILFIT), the ECtHR provided clear contours as to what types of questions national courts should (not) ask concerning the advisory opinion on the principled interpretation of ECHR rights under Protocol 16. JASPER KROMMENDIJK highlights the recent decision and its significance.

The European Union moved closer to adopting the world’s first hard-coded AI law. On 13 March 2024, the EP approved the AI Act, introducing comprehensive rules to govern and regulate the technology of artificial intelligence. FEDERICA PAOLUCCI examines some of its potential inconsistencies and risks.

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That’s all for this week. Take care and all the best,

the Verfassungsblog Editorial Team