More and more people are being arrested across Europe for helping migrants and refugees. Now, civil society groups are fighting back against the 17-year-old EU policy they say lies at the root of what activists and NGOs have dubbed the criminalisation of solidarity.
The 2002 policy directive and framework, known as the the Facilitators' Package, establishes the parameters of European policy when it comes to tackling illegal immigration.
The package leaves it up to individual member states to decide whether people providing humanitarian assistance should be exempt from prosecution for helping undocumented migrants enter or cross through EU states. It does not include a requirement that profit be a motive for a charge of human smuggling, nor is there an automatic exemption for humanitarians.
Activists say the policy is too vague, and gives states too wide a berth to bring charges against NGOs performing search-and-rescue operations in the Mediterranean, volunteers in Greece and elsewhere, and people who have provided transportation, food, and shelter to asylum seekers.
People [are] being prosecuted just for sort of simple acts of decency, Liz Fekete, director of the Institute of Race Relations in Britain, which has monitored the arrests, told The New Humanitarian.
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These cases have not only impacted the individuals put on trial.
Maria Serrano, senior campaigner on migration at Amnesty International, says they have damaged the reputation and perceived legitimacy of the organisations and people providing humanitarian aid and support to refugees and migrants. The atmosphere is very hostile for anyone that is trying to help, she said.
In the past, activists across the continent have responded locally to a wave of arrests and prosecutions they see as part of a broader crackdown on undocumented migration, including attempts to keep people from reaching Europe's shores, increased border control, and, recently, the alleged denial of food to asylum seekers trying to reach Hungary from Serbia.
But now a man arrested for his volunteer work is challenging the criminalisation of solidarity at the European Court of Human Rights, and a coalition of civil society groups is upping the pressure to amend or replace the Facilitators' Package.
The push includes a new report, timed to correspond with 20 June � World Refugee Day � showing that despite a drop in arrivals to Europe, at least 104 people were investigated or formally prosecuted for providing humanitarian assistance in 2018; double the number of cases from the year before.
The report comes from a pan-European network of groups called the Research Social Platform on Migration and Asylum (ReSOMA), which argues that the uptick in criminalisation violates fundamental European rights and values.
In 2016, the European Commission, the EU's executive body, looked into whether or not the directive was still fit for purpose. Their evaluation found that while organisations working with migrants were concerned about the issue of criminalisation of humanitarian assistance, there was not yet enough data about the criminal justice response to migrant smuggling in the EU to warrant any conclusions on the need for revision.
The outcome was a frustrating blow to groups lobbying for reform.
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The [European] Commission keeps saying that there is no evidence because there are no convictions, Stephanie Smialowski, a researcher at CEPS, a think tank involved in the ReSOMA project, told TNH. The problem is that the number of prosecutions is increasing [but not necessarily the number of convictions], and this makes the work of NGOs and volunteers a lot harder.
Following the evaluation, the EU Commission committed to engaging in a dialogue with civil society to gather more evidence on cases. We [are] always open to civil society organisations sharing with us any relevant information, an EU Commission source told TNH.
Given the political climate on migration in Europe, where several states now routinely refuse ships with rescued migrants the right to dock and people denied asylum are sent back to countries marred by violent conflict, the effort to end the criminalisation may be an uphill battle.
It's something that we've all be working on for a number of years, Michele LeVoy, director of the Platform for International Cooperation on Undocumented Migrants (PICUM), an organisation involved in ReSOMA, told TNH. And I don't know how successful we will be.
The context on migration is one in which return, increased detention, including of children and families, is increasingly accepted. So to try to get some positive result on changing this directive is aspirational, said LeVoy.
The legal challenge
Salam Aldeen, a Danish citizen and founding member of the NGO Team Humanity, was one of the first people to be arrested for conducting search-and-rescue activities. He is also the first to challenge the Facilitators' Package in court.
Early on the morning of 14 January 2016, he and four other volunteers set off from the Greek island of Lesvos to look for a sinking boat carrying migrants and asylum seekers that had departed from the Turkish coast.
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The volunteers, who had been performing rescues in coordination with Greek authorities for months, were intercepted by the Greek coast guard and brought back to Lesvos, where they were charged with attempted people smuggling.
Aldeen and the other volunteers were acquitted last May, in a case that dragged on for more than two years. Aldeen has now submitted a case against Greece to the European Court of Human Rights in Strasbourg, France. The court is not an EU body, but hears cases and delivers legally binding judgements related to the European Convention on Human Rights, an international treaty that all 28 EU member states have signed.
It's absolutely inexplicable how the Greek authorities dared to crack down on [Team Humanity] the way they did, said Violeta Moreno Lax, legal advisor to the Global Legal Action Network (GLAN), an international team of lawyers that brought the case on Aldeen's behalf.
The organisation has been released of every charge possible on the domestic level, but [only] after being put through an ordeal that lasted for more than [two] years and having endured a number of human rights violations [along] the way.
GLAN is seeking restitution for the moral and material damages that Aldeen suffered during the course of the criminal proceedings in Greece.
Greece destroyed my life, Aldeen told TNH in a recent phone call. I was stuck here for almost two years. I was fighting every day to survive here because I didn't have [a] job I lost everything I had. All my money, I lost it because of the case. I gave it to the lawyers, to the court, to my stay, to my food I think somebody should be [held] responsible for that.
It could be really an unprecedented occasion for the European Court of Human Rights to clarify that humanitarian assistance is not a crime.
The case also has another aim: GLAN argues that the ambiguity of the Facilitators' Package enabled Greek prosecutors to charge the members of Team Humanity, and the group is hoping to set a legal precedent that would pressure the EU to reevaluate the law and discourage other EU countries from prosecuting humanitarians.
It could be really an unprecedented occasion for the European Court of Human Rights to clarify that humanitarian assistance is not a crime, said Carmine Conte, a legal policy advisor at the Migration Policy Group (MPG), a Brussels-based think tank involved in the ReSOMA advocacy effort. The impact of that judgement could be huge.
But the European Court of Human Rights moves slowly. We are looking at a horizon of four, five years from now [before there is a judgement], Moreno Lax added.
The data collection
As ReSOMA works towards the reform or replacement of the Facilitators' Package it is trying to address the 2016 EU Commission's evaluation that there isn't enough data.
Its new report includes what it calls the most in-depth list of cases of criminalisation of solidarity to date, showing that at least 158 people were investigated or formally prosecuted for offering humanitarian assistance to migrants and refugees in 11 European countries between 2015 and 2019. Most cases were in France, Greece, and Italy.
A statement accompanying the report highlights that despite a drop in migrant arrivals, more Europeans are being criminalised for their solidarity.
Civil society is a threat to this very, very harsh border management policy.
MPG's Conte said the overall goal of the database is to provide evidence that these cases are not just related to individual country's policies, but are also related to the European law framework, so the European Commission should draft guidelines to clarify that humanitarian assistance cannot be criminalised.
I think this is the beginning of a process... between commissioners and civil society to change things, Conte added.
Other members of civil society are more sceptical about the possibility of progress.
I believe this refusal to change the facilitation directive is deliberate [on the part of the European Commission], said Fekete, of the Institute on Race Relations. I think they want to leave it there. It's almost like this is a tap for the member states to turn on and off because civil society is a threat to this very, very harsh border management policy that we're seeing.
Source: The New Humanitatian