1. Mens rea and evidence
Areios Pagos that the mens rea includes knowledge of the illegal entry of the smuggled migrant, which should be referred to in the judgment in order for it to have the reasoning required by law.
It further concluded that the Appeals Court correctly established that the appellant knew that the persons he transferred had entered illegally, based on the following: 1. the fact that he agreed to transfer them with his taxi setting a rate at double the regular rate for this trip, thus assuming the relevant risk and 2. on the return trip from Komotini to Athens he chose a different route in order to avoid a border police control point that he had identified when he went from Athens to Komotini.
2. Law to be applied
Areios Pagos upheld the Appeals judgment that Law 1975/1991 (applicable at the time of the offense) should be applied instead of Law 2910/2001 (applicable at the time of the judgment), as more favourable for the defendant, since the penalty range provided under Law 1975/1991 was lower.
3. The ex post facto possibility of obtaining residence permit on behalf of the smuggled migrants does not render the act not criminal
The appellant claimed that taking into account article 66 of Law 2910/2001, which entered into force after the commission of the crime and provided for the possibility for “illegal aliens” to file an application to be granted residence permit, under certain criteria, the two foreign nationals that he transported should not be deemed as “illegal” since the two-month deadline to file their applications under the aforementioned article had not yet expired. The Court found that the ex post facto possibility of obtaining residence permit on behalf of the smuggled migrants does not render the act not criminal, and that in any event, the individuals concerned did not meet the requisite criteria in order to obtain permits.
4. Confiscation – constitutionally protected right to ownership – suspension as adjunctive penalty
Areios Pagos dismissed the appellant’s argument that the confiscation of his taxi violates the right to ownership. In particular, Areios Pagos found that the right to ownership is weakened in such cases, due to the abuse of the right when the owner uses their property in order to commit a crime. Consequently, the owner exercises their ownership rights at the expense of the common good, and therefore confiscating this property does not violate the constitutionally protected right to ownership.
Furthermore, the appellant complained that since his main imprisonment sentence was suspended, adjunctive penalties such as confiscation should be suspended too and his taxi returned to him. Areios Pagos found that only certain adjunctive sentences are to be suspended, such as deprivation of rights (e.g. to right to vote and to hold public office), which do not include confiscation, which remains in force. However, there was a dissenting opinion by two members of Areios Pagos, meaning that the final decision was reached by a majority of one vote, and thus the matter was referred with regard to this issue to the Plenary Session of Areios Pagos.
1. Mens rea and evidence
Areios Pagos that the mens rea includes knowledge of the illegal entry of the smuggled migrant, which should be referred to in the judgment in order for it to have the reasoning required by law.
It further concluded that the Appeals Court correctly established that the appellant knew that the persons he transferred had entered illegally, based on the following: 1. the fact that he agreed to transfer them with his taxi setting a rate at double the regular rate for this trip, thus assuming the relevant risk and 2. on the return trip from Komotini to Athens he chose a different route in order to avoid a border police control point that he had identified when he went from Athens to Komotini.
2. Law to be applied
Areios Pagos upheld the Appeals judgment that Law 1975/1991 (applicable at the time of the offense) should be applied instead of Law 2910/2001 (applicable at the time of the judgment), as more favourable for the defendant, since the penalty range provided under Law 1975/1991 was lower.
3. The ex post facto possibility of obtaining residence permit on behalf of the smuggled migrants does not render the act not criminal
The appellant claimed that taking into account article 66 of Law 2910/2001, which entered into force after the commission of the crime and provided for the possibility for “illegal aliens” to file an application to be granted residence permit, under certain criteria, the two foreign nationals that he transported should not be deemed as “illegal” since the two-month deadline to file their applications under the aforementioned article had not yet expired. The Court found that the ex post facto possibility of obtaining residence permit on behalf of the smuggled migrants does not render the act not criminal, and that in any event, the individuals concerned did not meet the requisite criteria in order to obtain permits.
4. Confiscation – constitutionally protected right to ownership – suspension as adjunctive penalty
Areios Pagos dismissed the appellant’s argument that the confiscation of his taxi violates the right to ownership. In particular, Areios Pagos found that the right to ownership is weakened in such cases, due to the abuse of the right when the owner uses their property in order to commit a crime. Consequently, the owner exercises their ownership rights at the expense of the common good, and therefore confiscating this property does not violate the constitutionally protected right to ownership.
Furthermore, the appellant complained that since his main imprisonment sentence was suspended, adjunctive penalties such as confiscation should be suspended too and his taxi returned to him. Areios Pagos found that only certain adjunctive sentences are to be suspended, such as deprivation of rights (e.g. to right to vote and to hold public office), which do not include confiscation, which remains in force. However, there was a dissenting opinion by two members of Areios Pagos, meaning that the final decision was reached by a majority of one vote, and thus the matter was referred with regard to this issue to the Plenary Session of Areios Pagos.