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).