Date(s) of offending: on 1 October 2007
On October 1st, 2007, at Asproklissi in Thesprotia, Greece, the defendant as driver of a car, which was stolen five months ago, transferred 5 Albanian nationals who had just entered illegally into Greece, further into Greece. In particular, he picked them up from “Kotsika” at Filiata and would transfer them to Athens for an unidentified fee. He refused to stop at a border police signal and, in attempt to avoid arrest, he sped up, despite the fact that his car had five more passengers, two of them children, who were not wearing seatbelts, and thus he lost control of the vehicle and crashed into another car, resulting in injuries for him and the driver of the other car as well as in danger for the smuggled persons. Despite his injuries, he tried to flee on foot but was arrested by border police.
1. Endangering lives or safety of smuggled migrants
This judgment, although issued by a lower court, is noteworthy with regard to its position on danger in the context of migrant smuggling. The Court reiterated that art. 88 par. 1 c’ of Law 3386/2005 includes endangerment as an element of the offense and deemed it crucial to examine the concept of danger. It recalled that “danger” is an empirical concept, consisting of setting in motion causal factors that can independently lead to harm. As such, danger is potential for harm, a preliminary stage to harm itself, and the fact that the harm may or may not have occurred in the end (e.g. was prevented by random events) has no bearing on the existence of danger in and of itself.
The Court further reiterated that when danger is construed as element of an offense by law, then the conduct itself must be dangerous in general, but must also be appropriate to generate danger in the specific case at hand. In that sense, it stated that it is a fact that transferring persons, in particular by car, can in some cases, for example in the case of negligent driving, lead to danger for the lives of the passengers. Thus, every car accident, whether harm occurred in the end or not, constitutes a danger to human life.
However, it underlined that in the case of danger as element of the offense of migrant smuggling, this must be derived from the smuggling conduct as such, and must be an integral part of the smuggling conduct in general, such as when this is carried out by a small vessel in rough sea and bad weather conditions or when a large number of smuggled persons are confined in a narrow and badly ventilated place, so that the smuggling act itself produces endangerment.
Furthermore, the Court noted that in the present case the danger derived from the defendant’s efforts to avoid arrest and was not an integral part of the manner in which he carried out the smuggling. In particular, the fact that he picked the smuggled persons up with the car, that he took on only a small number of passengers and that he would transfer them to Athens does not include any “dangerous” aspects, at least not anymore than any regular car trip. Thus, it concluded that the aggravating circumstance of endangering the lives of the smuggled persons should be dropped from the charges, which resulted in the charge no longer being a felony and to the defendant being released upon condition from custody pending trial.