The case of ‘ERCI and others’ is part of a series of prosecutions happening in the Aegean and the Mediterranean Sea that aim to criminalize solidarity and the rescue of migrants. However, this particular case stands out in that the defendants are seeking to stand trial in every way possible, and the court, five years later, is denying it. As one of the defendants says:
“This trial was and remains a farce. If we were the dangerous criminals they portray us as, they managed to leave us unpunished and free for over four years, during which we could have continued to commit the horrible crimes they accuse us of. Crimes, that occurred severe enough to them, to lock up people in pretrial detention. Among them, two young students, to make sure they would not evade their responsibility, while in the end, one of them was banned from entering the country and therefore from attending their trial. Well, fortunately, we are not criminals and not guilty of any crime we are accused of—so there was no danger for society or the Greek state at any time.”
The judicial process:
In August 2018, three rescuers from the NGO ERCI1, Sara Mardini, Sean Binder and Nassos Karakitsos, were arrested in Mytilene. The three of them were detained for approximately three months in a Greek prison and were then released on bail. These three arrests were followed by criminal charges brought against 21 additional people. Some of them had ties to ERCI, while others had no connection to the organization. The criminal charges span a period of about two years (2016-2018) and contain both misdemeanours and felonies. The case was divided into two sub-cases for trial, one involving the misdemeanour charges while the other involved the felony charges, so as not to miss the statute of limitation for the misdemeanour charges.
The felony charges being prosecuted are, among others, the charges of
1) establishment and participation in a criminal organization;
2) money laundering; and
3) facilitating the illegal entry of foreigners (commonly known as smuggling).
To date, five years after the indictment, the 24 defendants have not been summoned to trial for the felonies, as the case is still at the investigation stage.
With the statute of limitations on the misdemeanour charges looming, the case reached court for the first time on 18 November 2021. However, the trial did not start because the court declared itself incompetent, as one of the defendants is a practicing lawyer, and therefore the case must be tried in a higher court (court of appeal), according to the code of criminal procedure. The defence lawyers raised a series of objections for all the legal errors that had been committed to that point, but the court did not take them into account as it had already declared that it had no jurisdiction. The prosecution for the multiple misdemeanour charges, in this case,
1) espionage;
2) forgery;
3) possession of radio frequencies; and
4) facilitation of a criminal organization
continue, referred to the court of appeal. The accused, in turn, insisted that they wish to be tried.
This is how we have arrived to January 2023, where all the extensive errors, procedural irregularities, and illogical leaps that are included in the case file and which are the basis on which the defendants have been dragged from hearing to hearing for five years, were revealed in the courtroom—without even starting the trial. To name just a few:
- One of the charges, possession of radio frequencies, is no longer a criminal offence and cannot be prosecuted.
- The beginning of the case file refers to 24 defendants, but at the end of the case file, there is a reference to 25 defendants. The time of the offences committed is also not mentioned in some cases. As a result, neither lawyers nor defendants can understand for which acts which person is accused and when these acts supposedly took place.
- For the charge of espionage, there is no mention (as defined by law) of what classified information the accused should NOT possess.
- For the charge of facilitating a criminal organization, it must first be proven that a criminal organization exists. This has not been done as the investigation in the felony case has not been completed, and the felony charges have not been confirmed by the three-judge council.
- The court is obliged to notify the defendants of both the charges and the summons to court in a language they understand, which was also not done.
On Friday, 13 January 2023, the court sustained all the above objections, and the proceedings were declared null and void. It also acknowledged that the statute of limitations had passed for the offences allegedly committed prior to five years prior to that date (i.e. offences up to 13 January 2018). Finally, it separated from the 24 defendants two Greek defendants, who will be tried alone.
The practical effect of all this is that the whole case was cancelled and returned to an earlier stage procedurally. That is, it will have to be corrected, rewritten, translated, and sent to the defendants before the other offences are time-barred, which is unlikely.
Reflections on a trial that never happened…
As another defendant mentioned,
“On the one hand, I feel satisfied that the court acknowledged all the mistakes and irregularities made in our case. On the other hand, we were preparing for a battle, we wanted to be heard, and that didn’t happen.”
All the above confirms that the aim of all these prosecutions was not to enforce the law, neither to bring the defendants to trial, nor to get them convicted. After all, the prosecuting authorities, with five whole years at their disposal, were unable to carry out their task. These prosecutions, as well as other similar ones in the Aegean and the Mediterranean, which have been underway since 20162, aim to ensure that there are no witnesses left to watch what is happening in the seas and on the coasts. Unfortunately, this objective has been largely achieved. After multiple criminal prosecutions, vilification in the media, and a slew of attacks on members of civil society, there is currently not a single rescue ship or mission in the Aegean.
This brings us to today, where the Turkish and Greek coastguards and the European Border and Coast Guard Agency FRONTEX are operating in the Aegean. Where the murderous and illegal practice of pushbacks has become the main tool of “migration management.” Where, because of the fear of pushbacks, migrants are being pushed down increasingly dangerous routes, travelling from Turkey to Italy in rotten boats. Where in the Aegean, we count more dead people day by day.
The criminalization of migration and the criminalization of rescue and solidarity are now facts of the European reality and are inseparable from each other. The trial of ‘ERCI and others,’ because of the publicity it has—rightly—received, has illuminated aspects of this phenomenon of tragicomedy. But in many other trials, especially when the defendants are migrants, the judiciary does not hesitate to violate itself. It does not hesitate to sentence people to tens of years in prison, in trials that are far from being called fair. In a way that is simply tragic, without any comic element.
1 In Lesvos, the humanitarian organization Emergency Response Center International (ERCI) was active in search and rescue, providing medical services inside Moria’s Reception and Identification Centre (RIC), etc. It was registered with the NGO registrar, and they often cooperated with the Greek authorities and the Greek Coast Guard.
2 It is worth noting that at that time and until 2019, the centre-left Syriza party was in government, which had adopted both pro-immigration rhetoric and anti-immigration practice.
