Participation in an organized criminal group

Offences

• Participation in criminal activities of organized criminal group

Degree of Involvement

• Overt act in furtherance of agreement
• Knowledge of aim or activities of the organized criminal group or its intention to commit the crimes in question

Smuggling of migrants

Offences

• Enabling illegal entry
• Financial or other material benefit (to smuggler)

Mode

• land

Aggravations

• Inhuman or degrading treatment

Decision no. 108/2013

UNODC No.:
GREh004

Fact Summary

Date(s) of offending: on/from TBC - at least early 2010 to at least 21 August 2011

The defendant was the subject of an European Arrest Warrant (EAW) issued by Germany, whereby Greece was requested to surrender the subject for prosecution in Germany.

The defendant was accused in Germany of membership in an organised criminal group and facilitation of illegal entry, with the purpose of obtaining a financial benefit thereby. Specifically:

  • The organised criminal group was composed by an undetermined number of individuals, with allocated tasks. It arranged the smuggling of migrants, in several ventures, from Greece to Dresden (Germany). The activities of the organised criminal group had an expectation of durability.
  • Irregular migrants were mostly Afghans and nationals of Arab countries.
  • The smuggling ventures were carried out through an altered touristic bus with Greek licence plate, which integrated a hidden compartment to conceal the irregular migrants. Migrants travelled in that location for several hours, in inhumane conditions.
  • In each smuggling venture, the organised criminal group resorted to up to 28 persons who posed as tourists so as to avoid suspicions were the bus to be intercepted by law enforcement.
  • The defendant was one of the persons who posed as tourists, having received 100 Euro per smuggling venture. She joined the organised criminal group at least before 6 March 2011.
  • At least five separate smuggling ventures were accounted for in which the defendant participated:
  • 18 April 2011 – 12 irregular migrants;
  • 10 July 2011 – 12 irregular migrants;
  • 7 August 2011 – 8 irregular migrants;
  • 14 August 2011 – 11 irregular migrants;
  • 21 August 2011 – 12 irregular migrants.

 

The defendant was detained in Greece as a result of the EAW but did not consent to the surrender to Germany.

 

 

Legal findings:

The Court of Appeal of Thessaloniki (Greece) denied execution of the EAW.

 

For further details see “Commentary”. 

Commentary and Significant Features

The Court of Appeal of Thessaloniki (Greece) noted as follows:

  • Law 3251/2004 transposed into Greek law Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. As per Article 1 of the said Law, the European Arrest Warrant (EAW) is a warrant issued by a judicial authority of a Member State of the European Union requiring another Member State to detain and surrender a criminal suspect or sentenced person to the issuing Member State so that the person might be put on trial or serve a custodial sentence.
  • Articles 9 (3) and 18 Law 3251/2004 provide that whereby the requested person does not consent to be taken into the custody of the issuing State, the competent judicial authority for issuing a decision executing the EAW is the Council of Appeal (Court of Appeal in Council) of the district in which the requested person resides or is detained.
  • Article 10 (1) Law 3251/2004 provides that the EAW shall be executed if: (i) the underlying offense constitutes a crime under Greek criminal law, irrespective of its legal classification, which is punishable by a custodial sentence or security measure of a maximum of at least twelve months, (ii) the courts of the district where the EAW was issued sentenced the requested person to a custodial penalty or security measure of at least four months for an offense which is classified as a misdemeanour or as felony under Greek law as well.
  • Article 11 (g) said Law establishes the circumstances in which the execution of the EAW shall be denied. This is the case inter alia when the crime was committed wholly or in part in Greek territory. Importantly, for refusing execution of the EAW in such conditions it is not a pre-requisite that the requested person be subject to prosecution in Greece for the same conduct. This approach is validated a contrario by the fact that, under paragraph (h) of Article 11, prosecution in Greece for the same act is set as negative condition re surrender of Greek nationals. By the same token, prosecution in Greece for the same conduct appears as a potential ground of refusal re surrender of foreign nationals.
  • Article 88 (1) Law 3386/2005 criminalises the conduct of commanders and captains of watercraft or aircraft – as well as drivers of any means of transportation – who facilitate the illegal entry in, or transit within, Greece or the territory of a EU Member State of irregular migrants. It further punishes those that provide accommodation to irregular migrants. If the perpetrator acted with the purpose of obtaining a financial or other material benefit, the penalty is at least 10 years’ imprisonment and fine of 30 000 to 60 000 Euro per migrant smuggled.
  • The individual who knowingly and willingly accepts to facilitate the illegal transit of irregular migrants that are already in Greek territory further within the country commits a crime of migrant smuggling. It is essential that the said individual knows the migrants are not authorised to be, stay or transit in Greece (Areios Pagos judgment no. 837/2012).
  • The facts of the instant case are punished under both German and Greek Law.
    • Germany: (i) Article 95 (1) sentence 3, Article 96 (1) sentences 1a and b and (2) sentences 1 and 2 and 5, Article 97 (2) Law on Residence of Foreign Nationals; (ii) Articles 25 (2) and 53 of the Criminal Code.
    • o Greece: Article 88 (1) (b) Law 3386/2005; (ii) Article 94(1) (c) and 187 Criminal Code.
    • The place where the perpetrator committed wholly or partly the criminal act or omission as well as the place where the criminal result occurred or - in the case of attempt – was expected to have occurred in line with the intent of the perpetrator is considered as the place of commission of the crime (Article 16 Criminal Code).
    • In cases where the perpetrator smuggles irregular migrants from Greece to other countries, both Greece and that other country of destination are considered places of commission of the crime (Areios Pagos judgment no. 200/2011).
    • In the instant case, thus, the crime is deemed perpetrated also in Greece. Thus, under Article 11 Law 3251/2004, the EAW may not be executed regardless of whether criminal proceedings have been initiated in Greece against the defendant, for the same acts.

Against this background, the Court of Appeal of Thessaloniki denied the execution of the EAW and lifted the detention of the defendant.

International judicial cooperation is critical in the effort of bringing migrant smugglers to justice, particularly given the cross-border nature per se of this crime type. This case provides insight into the specifics of the operability of an important instrument of mutual legal assistance (i.e. EAW) within the EU and the obstacles that may derive from the specifics of its implementation at the national level.

 

NOTE: As per Greek national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation – Greece).

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Details

• involved an organized criminal group (Article 2(a) CTOC)
• occurred across one (or more) international borders (transnationally)

Involved Countries

Greece

Germany

Investigation

Involved Agencies

• Criminal Police, Public Prosecutor

International Cooperation

Measures

• Mutual legal assistance
Outline:
International cooperation was based on multilateral treaty:

Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.

Cooperation measures involved: 

European Arrest Warrant of which Germany was the issuing State and Greece was the executing State.
 

• Gender Dimension

Procedural Information

Legal System:
Civil Law
 
Proceeding #1:
  • Stage:
    other
  • Details:
    Pre-trial (decision on execution European Arrest Warrant)
  • Official Case Reference:
    Decision 108/2013
  • Decision Date:
    01 January 2013

    Court

    Court Title:
    Court of Appeal of Thessaloniki (in Council)
     
    • Criminal
    Description:
    On 14 January 2013, the Public Prosecutor of Dresden (Germany) issued an European Arrest Warrant against the defendant, requesting Greece to surrender her for prosecution in Germany. On 5 February 2013, the Public Prosecutor of Thessaloniki referred the request to the Court of Appeal of Thessaloniki. The defendant had been detained accordingly. She did not consent to the surrender.
     

    Outcome

  • Verdict:
    Other
  • Other Outcome:
    Execution European Arrest Warrant denied
     

    Migrants

    Migrant:
    Total number of migrants is 55 from Arab countries and Afghans.

    Defendants / Respondents in the first instance

    Defendant:
    X.
    Gender:
    Female
    Nationality:
    Greek

    Permanent resident in Greece.

    The Defendant did not consent to the surrender to Germany, in the terms of the corresponding European Arrest Warrant.

    Charges / Claims / Decisions

    Defendant:
    X.
    Statute:
    Law 3386/2005 Article 88 (1) (b) Smuggling of migrants
    Statute:
    Criminal Code Article 187 (1) (in conjunction with Articles 45 and 94 (1)) Membership in a criminal organisation
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