Decision No. 585/1993 of the Criminal Court (First Instance) of Mytilini
|Publisher||Greece: Criminal Courts (First Instance)|
|Author||Criminal Court (First Instance) of Mytilini|
|Citation / Document Symbol||585/1993|
|Other Languages / Attachments||Greek|
|Cite as||Decision No. 585/1993 of the Criminal Court (First Instance) of Mytilini, 585/1993, Greece: Criminal Courts (First Instance), 1993, available at: http://www.refworld.org/docid/3f4f8a254.html [accessed 23 October 2016]|
|Comments||This is a summary in English provided by UNHCR Athens.|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Facts: On May 1993, 17 Iraqi nationals – including a family with a pregnant woman and a child – arrived illegally into Mytilini from Turkey. The Turkish smuggler who helped them cross had fooled them into believing they were in Italy. They were arrested and they all applied for asylum. They were brought to Court for illegal entry into the country.
Through an interpreter the defendants explained that they were Iraqi nationals serving in the army and that, being Catholic Christians, they had different political and religious opinions from those held by the Moslem dictatorial regime. Due to the persecution they suffered, they fled to Zakho autonomous region where they stayed for 3 months. After this time their families could not longer provide for them and, being informed that the Iraqi authorities were looking for them and, fearing arrest and imprisonment,left the country. The Public Prosecutor proposed their acquittal.
A) The Court expressly referred to article 31 para.1 of the Geneva Convention that allows, under conditions, for the waiver of sanctions on refugees for illegal entry into the territory of the host country. In conjunction with article 33 para. 1 and 32 (non-refoulement and interdiction, on conditions, of deportation) it noted the resettlement activities undertaken by the International Organization for Migration, in cooperation with governmental and international organizations. It stressed the prohibition of refoulement or expulsion of refugees to the territory of states where their life or freedom is threatened for reasons of nationality, religion, ethnic origin, membership of a particular social class or political opinions. In all cases, States must provide refugees with a reasonable period of time for them to try and legally arrive in a third country. In case of mass arrivals of refugees and awaitingfor a resettlement in a third country, the state of admission may provide refugees with temporary asylum.
B) The Court interpreted article 25 para. 1 of Law 1975/1991, referring to Council of State jurisprudence (830/1985 and 932/1988) in a way that in order for someone to be recognized as a refugee, it is not necessary to have arrived directly from the country of origin. S/he may have crossed a third country. The deciding factor is flight from persecution.
C) In particular concerning the family among the defendants the principle of family unity – as enunciated in the Final Act of the 1951 Geneva Convention Conference and in the UNHCR Ex.Com. conclusion15: when the head of the family is a refugee, the dependents also receive the same status.
D) In forming its opinion, the Court admitted that the burden of proof for the refugee status lies with the applicant, but given the particular circumstances of flight it is not possible to request full proof of the claim and offer the applicant the benefit of the doubt (UNHCR Handbook). Criminal trials follow the principle of moral proof. Common sense arguments – one does not leave one's country and property with no serious reason – leads to the conclusion that the defendants were forced to leave Iraq fearing persecution and they could not request a passport from the Iraqi authorities.
Rights of defense: The entire procedure was faithfully interpreted from and to the defendants, though interpreters.
Found not guilty for the offence of illegal entry on the grounds that their situation of need waives the illegal character of the offence.