European countries should face legal consequences for ‘criminalising’ migrant solidarity, says new report

Following openDemocracy revelations, a new EU-funded study reveals a sharp rise in cases of criminalised solidarity and humanitarian aid under anti-smuggling laws.

Claudia Torrisi
20 June 2019, 10.50am
People protest in Sicily against attacks on organisations rescuing migrants and refugees from the sea, January 2018.
Valentino Cilmi/Rop/ZUMA Press/PA Images.

European institutions must consider legal action against member states that incorrectly ‘criminalise’ citizens and volunteers for helping migrants, according to a new EU-funded study published today.

A recent openDemocracy investigation found that hundreds of Europeans have been targeted by authorities for providing food, shelter, transportation or other support to migrants without legal papers.

Today’s study, from the Research Social Platform on Migration and Asylum (ReSOMA), reveals a rise sharp in some of these cases – particularly investigations and prosecutions under anti-smuggling laws.

ReSOMA found that, between 2015 and 2019, at least 158 individuals have been involved in 49 such cases for offering humanitarian assistance to migrants and refugees across 11 European countries.

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Significantly, they found more cases last year than ever before – despite a nearly 90% decrease in migrant arrivals in 2018. In the first quarter of 2019, they found 15 cases ongoing involving 79 people in six countries.

“We – European civil society organisations and humanitarian actors – are concerned by the EU’s lack of action”, said Michele LeVoy, director of the Platform for International Cooperation on Undocumented Migrants.

“All these cases can be related to one EU law”, LeVoy explained, pointing to what’s called the ‘Facilitation Directive’, introduced in 2002, “which fails to distinguish between human smuggling and humanitarian assistance”.

We – European civil society organisations and humanitarian actors – are concerned by the EU’s lack of action.

Michele LeVoy, director of the Platform for International Cooperation on Undocumented Migrants

Echoing previous calls from the EU Parliament, the report calls for urgent reform of this 2002 law to specify that a “financial or material benefit” is required for an action to be considered a crime of migrant smuggling.

Humanitarian actors must be exempt from prosecution, it adds, calling also for “firewalls” to prevent civil society groups from being asked to share data with law enforcement on the people they assist.

The European Commission should further consider legal ‘infringement procedures’ against states that violate other EU laws through their actions criminalising humanitarian aid and solidarity with migrants, it says.

According to EU treaties, the Commission can refer such cases to the European Court of Justice which can impose financial penalties.

“Saving lives and upholding human dignity by providing food, shelter, and access to justice, at the borders or zones of transit were slowly relabelled as facilitation of entry or/and stay”, the study warns.

Meanwhile, “humanitarian response and asylum seeking are enshrined in the EU charter of fundamental rights and international law”, stressed Seán Binder, a coordinator of civilian rescue operations who spent 106 days in pre-trial detention in Greece last year.

Binder emphasised that “civilian humanitarianism is a highly skilled operation that works to complement the lifesaving of the authorities, instead of hampering them”.

“In my case”, he said, “we were the only actors who provided immediate medical services and interpreters where the authorities had none”.

A rescue operation in the Mediterranean sea, June 2019.
A rescue operation in the Mediterranean sea, June 2019.
Kai Von Kotze/Seawatch/Ropi/Zuma Press/PA Images.

The 2002 Facilitation Directive is the main EU law against migrant smuggling but its language is vague and “its interpretation is left up to national judges who might extend the scope of application to a wide degree”, warns today’s report.

The directive is not in line with the UN’s protocol against migrant smuggling, it adds, lacking an express reference to the “financial or other material benefit” requirement to classify “migrant smuggling” as a crime.

Today’s study looks at cases of ‘criminalised’ solidarity in 11 countries – Belgium, Croatia, Denmark, France, Germany, Greece, Italy, the Netherlands, Spain, Sweden and the UK. Most of these cases occurred in just three countries: France, Italy and Greece.

There is no way I am going to prison for saving people in distress.

Pia Klemp, NGO search and rescue boat captain

At least 16 NGOs and humanitarian associations have been affected by the formal prosecutions of their volunteers, the report found. Most groups performing search and rescue operations were forced to stop their activities and leave the sea.

The case of the Iuventa ship is among these. It was withdrawn from the Mediterranean search and rescue zone in August 2017 by the Rome Coast Guard Maritime Rescue Coordination Center (MRCC) while trying to save several boats in distress.

The vessel was seized by Italian authorities at the port of Lampedusa – a little island near the north African coast – and it is still impounded in Sicily. Meanwhile, its crew faces ongoing legal threats against them.

“There is no way I am going to prison for saving people in distress,” Pia Klemp, told The Guardian this month. The Iuventa’s 35-year old German boat captain, along with other crew members, is accused of aiding illegal immigration and collaborating with smugglers.

Klemp continued to participate in another NGO’s rescue operations, until her lawyers warned her last summer that she was risking too much.

She told a Swiss newspaper that she could face “up to 20 years in prison and horrendous fines”. More than 200,000 people have signed an online petition demanding that Italy drop criminal proceedings against her and other Iuventa crew members.

In Italy, 38 people and NGO volunteers have been investigated or prosecuted for allegedly abetting illegal migration or colluding with smugglers, according to ReSOMA's report which documents four ongoing cases in this country.

Civil society actors are pushed to ‘choose sides’ – either to align with the positions of national authorities or to oppose them.

The Research Social Platform on Migration and Asylum (ReSOMA)

The report underlines how the ongoing criminalisation of solidarity can impact on humanitarian efforts and raises “concerns with regard to the respect for fundamental freedoms, human rights and rule of law”.

“Civil society actors are pushed to ‘choose sides’ – either to align with the positions of national authorities or to oppose them”, it warns.

The current EU legal framework, it adds, has contributed to “growing intimidation and fear of sanctions” along with negative impacts on “social trust and social cohesion for society as a whole”.

It describes increased “anxiety and even post-traumatic stress disorders among the volunteers… during the peak of the humanitarian crisis”.

NGOs have seen drop in donations, “which may undermine their effective involvement in operations in the Mediterranean and, more broadly, their capacity to promote human rights and fundamental European values”.

Meanwhile, after the Italian government’s adoption of a controversial Code of Conduct for NGO vessels, there have been fewer rescue ships providing search and rescue services in the Mediterranean sea.

Echoing openDemocracy’s findings, the ReSOMA report also shows how ordinary citizens, family members, journalists, mayors and religious leaders have been ‘criminalised’ for helping migrants.

An ongoing campaign called “Welcoming Europe” involves more than 170 civil society groups demanding the decriminalisation of humanitarian aid. ReSOMA’s study also calls for an independent observatory of these cases.

“The new members of the European Parliament must hold the next set of European Commissioners to account when screening their policy positions on the criminalisation of solidarity”, LeVoy insisted.

However, the new Parliament may be less likely to do this. Italy, a hotspot for these cases, voted in a record number of far-right MEPs at the European elections last month following anti-immigrant campaigns.

In this country, a new so-called ‘security decree’ from the far-right Interior Minister Matteo Salvini states that NGOs rescuing migrant boats from the sea without the ministry’s permission could face fines of up to €50,000.

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