Decision No. 233/1993 of the Criminal Court (First Instance) of Chios

Facts: 17 Iraqi nationals entered illegally into Chios from Turkey, were arrested by the Port Police and brought to Court for illegal entry into the country. The Court heard as witnesses the port policemen and the Head of the Security of Chios Police. The witnesses testified:

• as to when and where the defendants were "discovered" 
• that they were unable to communicate with them 
• that some of the defendants were in possession of certificates of baptism while others lacked any identification document 
• that the defendants showed fear when hearing the name of Saddam Hussein 
• that they know that the Iraqi regime persecutes all "differing elements", Kurds, Christians and that, to their opinion, the defendants are political refugees 
• that the boat used for the crossing to Greece was Turkish, that it is now destroyed so that Greek authorities cannot force them to return to Turkey. 

The Head of the Security of Chios Police also testified that he is aware of the autonomous region of Zakho, in Iraq, where opponents to Saddam's regime reside and expressed doubts as to the safety of the population living there. He declared that the body responsible for deciding on the refugee status of the defendants is the Ministry of Public Order (MPO) and that the Court's decision does not influence the Minister's relevant decision.

In their pleading, each defendant spoke of their arrival in Greece and declared that they applied for asylum in Greece, explaining, on an individual basis, the reasons that led them to leave Iraq and their fear to return. They were mostly deserters who have fought in the Iran-Iraq war and disagreed with the current war against U.S.A. They claimed that they faced discrimination, compared to other Iraqi Arab soldiers, due to their religion – Assyrian and Catholic Christians. They had to serve much longer – up to 15 years- they were assigned too difficult tasks, were sent to the frontline and were badly treated. They were opposed to the Iraqi regime and feared persecution if they returned. Some had family abroad and feared they might be arrested and interrogated   in order to confess of their abode while others claimed that they had relatives who were executed or persecuted by the regime and feared persecution for these reasons. The Public Prosecutor proposed their acquittal.

Decision:

A) The Court expressly referred to article 1 of the Geneva Convention of the definition of refugee (as complemented by the New York 1967 Protocol). It noted that the act of recognition of a refugee by the competent State of admission authority is of a declaratory nature. Invoking article 31 of the Convention, it considered that in the said case the defendants crossed a third country – Turkey – before entering in Greece. Refugees benefit from the article 31 protection even when they arrive via a third country where their life or freedom is equally in danger or which is not internationally bound to protect persons belonging to their particular refugee category.

B) National law (art.4 para.3 L. 1975/1991) stipulates that illegal entry into, or exit from, Greece is an offence punishable with prison sentence, without prejudice to the Geneva Convention.

C) The defendants maintain that their refugee status constitutes a personal reason for acquittal which should be examined by the Court, notwithstanding the competent administrative authority's final judgment. According to the Court there are serious indications that the defendants, being Christian, fled for fear or persecution due to their nationality, religion and political opinions. This fear is well founded, given the events they presented and which are confirmed by media reports (executions or threats whereupon, discriminatory acts – civilian and military). The defendants gave a vivid and clear narration of their personal experiences, persuading the Court of their truthfulness. Some events were not fully substantiated – due to the difficulty of the enterprise – but this should not imply that their claims were untruthful. They should receive "the benefit of the doubt" (UNHCR Handbook 1989). The argument that the defendants could have found shelter and protection in another part of the country (in this case in Zakho, under the Allied protection) does not stand, since that area is inhabited by Kurds (a different ethnic group), it is of difficult access and in an area of unrest. Finally the fact that they arrived in Greece from a third country does not exclude them from the refugee status, especially since Turkey has maintained reservations and limits refugee protection to persons that fled persecution due to events that took place in Europe.

Rights of defense for the defendants: The entire procedure was faithfully interpreted from and to the accused, though interpreters.

Acquitted since their refugee status constitutes a personal motive of acquittal (art 31 para. 1 1951 Convention). Boat seized.