The case of the Moria 35: a 15-month timeline of injustice and impunity

On Thursday 18th October, the last of the Moria 35 were released from detention. Their release comes one year and three months – to the day – after the 35 men were arbitrarily arrested and subject to brutal police violence in a raid of Moria camp following peaceful protests, on July 18th 2017.

While the Legal Centre Lesbos welcomes the fact that all 35 men have finally been released, we maintain that none of them should ever have been imprisoned to begin with –– let alone for the 10 to 15 months the majority of the Moria 35 spent in punitive, unlawful incarceration.

And while freedom from unjust imprisonment is one thing, freedom in any broader sense is a different matter. The legal status of all 35 men is precarious. Six of them have been granted asylum in Greece, but the majority are now fighting the rejection of their asylum cases; on appeal or through subsequent applications which are subject to admissibility. Three individuals have been deported. One individual was illegally deported without having exhausted his legal remedies in Greece, while another individual, having spent 9 months in pre-trial detention only to be subject to a gross miscarriage of justice at criminal trial, signed up for so-called ‘voluntary’ deportation.

Despite an abject lack of evidence against any of them, 32 of the Moria 35 were convicted of the crime of Dangerous Bodily Harm against police officers in grossly unjust criminal trial proceedings that took place in Chios in April 2018. Although their criminal conviction is being appealed, these men now live under the shadow of 26-month suspended prison sentences. By contrast, despite numerous videos, reports and eyewitness testimonies evidencing brutal police violence against the Moria 35, the public prosecutor decided to closed its investigation into police brutality in June 2018. Their basis for closing the investigation was that any use of force on the part of the police was justified, because the Moria 35 had resisted arrest. This despite the fact that all 35 men had just been found innocent on the charge of resisting arrest.

From the Greek police’s brutally violent, racist mass-arrest of these 35 men; through the grossly unjust, punitive criminal procedure that they were subject to; to their release from pre-trial detention in April only for the majority to be transferred directly into immigration detention in Moria; the case of the Moria 35 over the past 15 months constitutes a catalogue of the forms of institutional racism and gross human rights abuses with impunity that are enabled by the intersection of violent immigration and criminal justice systems in Europe. The following timeline sets these out to the best of our knowledge, with links to more detailed reports.

           

  • 18 July 2017: Police brutality and arrests

At approximately 10:00 on Tuesday 18th July 2017, refugees of different nationalities gathered in Moria for the second day in a row of peaceful protests, denouncing inhumane living conditions and demanding the right to freedom of movement for everyone trapped in Lesvos. The protest remained peaceful and calm until police arrived at around 13:00 and began to use tear gas. Many refugees were trapped outside the camp, some were trapped inside, there was confusion and inside Moria there were clashes between a handful of protesters and police officers shooting teargas and throwing rocks. By 15:00 the camp was calm. However, at approximately 16:00 several dozen riot police who had just arrived on the scene entered Moria and violently raided the African section of the camp. They pulled people out of the iso-box containers they lived in, brutally assaulted seemingly anyone they encountered including a pregnant woman, and by 16:15 had made 35 arrests. 34 of the 35 individuals arrested were black. One of the arrestees was urgently hospitalized due to severe injuries sustained at the hands of arresting officers.

=> Detailed reports, video footage, and an Amnesty International report urging investigation into police violence amounting to possible torture can be found here: https://freethemoria35.wordpress.com/media-reports/

  • 19 July: Criminal proceedings initiated

The 34 individuals who had spent the night in Mytilene police station were brought into Mytilene court in order for the public prosecutor to initiate criminal proceedings against them. The individual who had spent the night in hospital due to police violence remained in hospital. Arrestees reported having been beaten by the police again in the police station overnight. Some of the men were still bleeding from visible injuries and had been denied medical attention. Many were brought into the courthouse barefoot. Criminal proceedings against the Moria 35 were initiated by the public prosecutor, on a catalogue of identical charges:

  1. Arson with intent to endanger life – contrary to Article 264 of the Greek Penal Code
  2. Dangerous bodily harm – contrary to Article 309
  3. Damage of foreign property – contrary to Article 382
  4. Using or threatening violence to force an authority or public official to execute an act within his capacities or to refrain from a legitimate act – contrary to Article 167

=> http://www.legalcentrelesbos.org/2017/07/20/hearing-tomorrow-at-mytilene-court-for-moria35/

  • 21-22 July: Preliminary inquiry

Interrogations by the Investigating Judge took place over the course of two days. Four of the Moria 35 had this procedure postponed due to the state’s inability to produce translators in their languages. The procedure was also postponed for the individual who remained hospitalized.

There were solidarity protests outside the courthouse on both days. Many of the 35 arrested had not even been present at the morning’s peaceful protest, let alone the clashes between a small number of protesters and riot police that ensued following the police’s excessive use of tear gas. This led witnesses to conclude the arrests were arbitrary: that people were targeted because of race, nationality, and location within the camp at the time of the police raid; which itself seemed intended to collectively punish refugees for organised, peaceful resistance. There was an absolute lack of evidence against any of the Moria 35.

However, despite all this, the 30 individuals who were interrogated by the Investigating Judge were formally indicted on the catalogue of exaggerated crimes detailed above and the case was referred to trial. Many still had visible injuries and their access to food, water and medical care had been limited. Given the 48-hour window between arrests and preliminary inquiry, and the lack of lawyers on Lesvos, all 30 defendants were represented by one lawyer from the Legal Centre.

12 of the defendants filed official complaints in court against the police for excessive use of force. Many had vulnerability status and/or serious mental and physical health conditions that should have precluded pre-trial incarceration, which in any case should be a matter of last resort under both Greek and International law. Yet pre-trial detention was ordered for all 30 men pursuant to Article 282 of the Greek Code of Criminal Procedure due to the gravity of the charges and their deemed lack of appropriate address, despite all being registered residents of Moria camp.

=> http://www.legalcentrelesbos.org/2017/07/30/free-the-moria-35/

  • 25-26 July: Transfer to prisons outside Lesvos

Amidst misinformation, lack of translation and defendants’ reports of police intimidation and racism, the 30 individuals for whom pre-trial detention had been ordered were transferred from Lesvos and divided between a prison on the island of Chios, and Korydallos and Avlona prisons in Athens, which were ill equipped to deal with non-Greek speakers and made visits from friends, family and lawyers extremely difficult.

  • Late July: Preliminary inquiry

Immediately upon being discharged from hospital, the individual hospitalized for a week due to police violence faced the investigating judge. Though indicted with the same charges, he was not given a pre-trial detention order and was released pending trial – though confined to the island of Lesvos with reporting conditions.

  • September – November: Conclusion of pre-trial proceedings

The right to free trial under the European Convention of Human Rights (ECHR) makes it an obligation on the state to provide translation in a language a defendant understands. However, given the Greek state’s continued failure to do so in the case of 4 of the Moria 35, by the end of September, the Wolof-speaking defendant himself produced a translator and was interrogated by the Investigating Judge. By November, the 3 Bambara-speaking defendants had done the same. Thanks to arguments from the defense team coordinated by the Legal Centre and HIAS, regarding residency in Moria, health conditions, and the fact that these men had duly showed up to court once a month for as long as the state had failed to produce appropriate translators, the 4 defendants were released with restrictive conditions pending trial.

All 5 defendants – including the individual hospitalized by police violence – who had been given restrictive measures were forced to remain within the open-air prison of Lesvos, and to live in Moria camp: the very place they had been subject to brutal police violence.

=> http://legalcentrelesvos.org/2017/09/30/september-report-on-rights-violations-and-resistance-in-lesvos/ Section 5

=> http://legalcentrelesvos.org/2017/11/09/october-report-on-rights-violations-and-resistance-in-lesvos/ Section 6

  • 13 December: Pre-trial detention extended

Despite applications for release on the basis of severe health conditions being made by defense lawyers, the Municipal Court renewed the pre-trial detention conditions for 30 defendants for a further 6 months. There was no legal basis for denying the 30 defendants their right to liberty and presumption of innocence (Article 5 and Article 6(2) ECHR) by ordering pre-trial detention to begin with, particularly given that none of the defendants had previous convictions and the prison-like character of the island of Lesvos itself precludes flight. Pre-trial detention is disproportionately used against foreign national defendants in Greece. Renewing such pre-trial detention was unduly harsh and unlawful. The trial date had still not been announced.

=> http://legalcentrelesvos.org/2018/02/10/january-2018-report-on-rights-violations-and-resistance-in-lesvos/

  • Late February 2018: Trial date and location announced

The trial date was finally set for 20 April 2018, before a ‘mixed jury Court’ in Chios. There was no apparent explanation for authorities’ decision to move the trial of the Moria 35 to the island of Chios: away from the solidarity groups that had been supporting them and the many witnesses to the events on the day of their arrest present in Lesvos.

  • 14 March: Joint statement

The five members of the Moria 35 under restrictive measures on the island of Lesvos released a collective statement ahead of their trial.

[Excerpt]:

 “Our humanity has been denied since we stepped foot in Europe, the supposed cradle of democracy and human rights. Since we arrived we have been forced to live in horrible conditions, our asylum cases are not taken seriously, and most Africans are denied residency in Europe and face deportation. We are treated like criminals, simply for crossing a border that Europeans can freely cross.

Now 35 of us have been accused of rioting, destroying property, and violence, however it was actually the police who attacked us in a violent and racist raid on the African section of Moria… It was the police in full riot gear who attacked unarmed migrants with stones, batons and tear gas… It was the police who damaged property by breaking the windows and doors of the containers where we were living. Without concern for people who were inside they threw tear gas into the closed containers. They dragged people by their hair out of the containers. They beat anyone they found with batons, their boots, their fists, including a pregnant woman. It seems we were targeted only because of our skin colour – because we are black.”

 => https://freethemoria35.files.wordpress.com/2018/04/statement35en.pdf

  • 10-17 April: International solidarity

In the week running up to the Moria 35 trial there were events, protests and documentary screenings in solidarity with the Moria 35 across Europe, using the hashtag #FreetheMoria35.

The mobilisations in Greece linked the case of the Moria 35 to the case of the Petrou Ralli 8, which was on trial the week after the Moria 35 and which shared many characteristics: refugees detained in inhumane conditions in a notorious detention centre peacefully raising questions in protest at their conditions, a police response of brutal violence causing serious injury (broken bones, head injuries), followed by seemingly arbitrary arrests, indictment on a catalogue of extreme criminal charges, and dispersal across prisons in Greece for unlawfully lengthy periods of pre-trial incarceration. These cases were also linked to a further analogous case known as the ‘Moria 10’, which involved 10 individuals indicted for clashes in Moria one week before the Moria 35 arrests. The patterns of state violence and institutional racism in these cases, which shared similar timelines, were seen as evidencing the systematic nature of repression and criminalization of migrant resistance to border violence in Greece.

=> https://musaferat.espivblogs.net/en/2018/03/13/call_for_solidarity/

=> http://legalcentrelesvos.org/2018/04/16/release-of-documentary-moria-35/

=> https://www.facebook.com/pg/freemoria35/posts/

=> https://cantevictsolidarityenglish.noblogs.org/post/2018/09/07/petrou-ralli-8-a-conversation-with-the-8-of-petrou-ralli/

=> http://legalcentrelesvos.org/2018/05/10/a-second-trial-to-begin-in-chios-in-continued-criminalization-of-asylum-seekers-in-lesvos/

  • 20-27 April 2018: Trial in Chios

The Moria 35 trial finally began on 20th April 2018, before the ‘Mixed Jury Court’ on Chios. There were only 4 days of proceedings, which ended on 27th April. The Legal Centre Lesvos coordinated the defense and at trial the legal defense team was made up of 6 lawyers from the Legal Centre, Musaferat, HIAS, Lesvos Solidarity, and Aitima. All defendants were acquitted of the following charges:

Arson with intent to endanger life – contrary to Article 264 of the Greek Penal Code

Damage of foreign property – contrary to Article 382

Using or threatening violence to force an authority or public official to execute an act within his capacities or to refrain from a legitimate act – contrary to Article 167

However, 32 defendants were found guilty of the following charge:

Dangerous bodily harm – contrary to Article 309

All convicted defendants were given a 26-month suspended prison sentence.

A trial observation committee representing 6 international human rights organisations attended proceedings, and published a detailed Trial Observation Report of their findings. Greece is a party to the European Convention on Human Rights (ECHR) and is therefore obliged under international law to ‘secure to everyone within (its) jurisdiction the rights and freedoms’ contained therein. The Trial Observation Committee found gross breaches of the ECHR to have taken place in respect of the defendants in the Moria 35 trial. In brief these were as follows––

Article 3 – Prohibition of inhuman treatment

The Committee found the treatment of the Moria 35 defendants to breach the prohibitions of inhumane treatment under Article 3 ECHR. During the trial the defendants were given no breaks when they had to go to the toilet the trial continued without them. They were not provided with food by the authorities during the duration of each long trial day.

Article 6  – Right to a fair trial

The disproportionate 9 month delay that the Moria 35 were subject to between arrests and trial constituted a breach of Article 6(1) of the ECHR, particularly given that 30 of them were subject to detention conditions which should entail prioritization.

The Greek state systematically failed to provide competent interpreters in a language the Moria 35 defendants understood. This was the case from the preliminary inquiry and through the course of proceedings at trial. At no point were any of the defendants ‘informed promptly, in a language which he understands and in detail of the nature and cause of the accusation against him’ Article 6(3)(a) and Article 5(2) ECHR. At the trial stage, none of the defendants were accorded their right to ‘have the free assistance of an interpreter if he cannot understand or speak the language used in court’ as per Article 6(3)(e) ECHR. Translation was grossly inadequate throughout proceedings. It was not individual: there was, for example, one translator for 20 French-speaking defendants; and it was not competent: none of the interpreters were trained or professional. At one point in proceedings the English translator left and was replaced by a police officer. There was no Bambara translator provided for the Bambara-speaking defendant, who was expected to understand the Wolof translator, himself a refugee, despite not speaking Wolof.

Lack of translation restricted defendants’ other rights under the right to free trial, such as their ability to present their case, equality before the law and equality of arms. These rights under Article 6(1) ECHR were further violated at trial by the shockingly limited amount of time each defendant was given to present their testimony. The president of the court only asked three questions of each of the 35 defendants and prevented them from saying more. Despite letting the prosecution witnesses speak for 45 minutes each on average, each of the 35 defendants was only given an average of 7 minutes to speak. Some spoke for only 3 minutes. Given that all 35 defendants faced maximum prison sentences of 10 years, and that half of the minutes they were permitted were taken up with translation; this was deeply unjust. In addition, the 35 defendants shared 6 lawyers. Each lawyer was limited to 11 minutes for the multiple clients they were representing. This amounted to an average of 108 seconds of legal defense per defendant.

The report also evidences breaches of the presumption of innocence under Article 6(2) and impartiality of the tribunal per Article 6(1) ECHR stemming from the fact that there was no prosecution case against individual defendants. Evidence on individualized circumstances and alibis was not permitted. Prosecution witnesses could produce no proof of the involvement of individual defendants. In the verdict, defendants were not mentioned individually. Instead the Moria 35 were treated throughout proceedings as a “guilty group”.

Article 14 – Prohibition of discrimination

Such treatment as a “guilty group” also goes to breaches of the prohibition of discrimination under Article 14 ECHR. The Committee report raises concerns that the police raid of solely the ‘African section’ of Moria despite individuals of various nationalities having participated in protests was racially biased. Official guidelines for identification and recognition of suspects were not followed. The report cites evidence of racist remarks made by the police during arrests: “black dog”, “this is not Africa”; and racist remarks made by police officers giving evidence at trial: “they all looked much the same”. In its conclusion, the Trial Observation Committee report states that “The 35 defendants were not treated in the way other defendants are treated before the Greek courts, or in the way the ECHR specifies that defendants should be treated in Europe”.

=> http://legalcentrelesvos.org/2018/04/28/the-moria-35-trial-results-in-conviction-of-32/

=> Trial Observation Report of the Moira 35 case: http://legalcentrelesvos.org/wp-content/uploads/2018/10/Observation-report-Moria-35-VERSION-COMPLETE-AVEC-LES-ANNEXES.pdf

  • 28 April: From pre-trial incarceration to immigration detention

Following the trial, 5 individuals who had been in prison in Avlona were transferred to Petrou Rally in Athens. 25 were transferred directly to detention in Moria, and the 5 who had been confined to Lesvos awaiting trial traveled back to the prison-like island of Lesvos. The Legal Centre took on the representation of the men in their asylum cases, with some support from HIAS.

  • 5 May: Release subject to immigration status

Only the 4 individuals among the Moria 35 who had been granted refugee status were freed from incarceration. All others were transferred from penal detention to administrative detention, with recommendations for their continued detention as asylum seekers because they were seen as a threat to public security, despite the fact that the court had granted suspended sentences for all individuals convicted.

  • 10 May 2018: Attempted deportations

The 7 individuals among the Moria 35 whose cases had been rejected on appeal were scheduled for deportation on 10th May. This despite the fact that: two of them had been denied legal representation on appeal, which is a right under Article 44(3) of Greek law 4375; none of them had exhausted their legal remedies; their criminal convictions were being appealed; and all of them had claims to residence permits on humanitarian grounds as victims and/or important witnesses to a serious crime (police brutality) that was the subject of ongoing proceedings, as per Article 19A of the amendments to Greek Law 4521 detailed in Law 4332.

However, the deportations of all 7 men were halted at the last minute thanks to a mobilization of the Legal Centre, the Free the Moria 35 campaign, interventions of the Ombudsman office and the UNHCR, and petitions to file subsequent asylum applications being made by the legal team.

=> http://legalcentrelesvos.org/2018/05/05/moria35-update-26-of-the-35-remain-detained/

  • 17 May: ‘Voluntary’ deportation

Having spent 9 months incarcerated only to be subject to a gross miscarriage of justice, one of the Moria 35 gave up on the Greek ‘justice’ system altogether, signed for ‘Assisted Voluntary Return’ and was deported to Turkey.

  • 13 June: Deportations

Another 2 of the Moria 35 were deported to Turkey on the morning of 13th June. Both men were had not exhausted their legal remedies in Greece. One individual was deported on this day despite still having the legal recourse of appealing in administrative court open to him. He had received new evidence in the form of original documents corroborating his claim for asylum or subsidiary protection. The other individual had been declaring his express desire to exercise his right to appeal the rejection of his asylum claim to police for days preceding his deportation. Lawyers had also spoken to the police department informing them of their intention to submit an appeal to the asylum service on his behalf. Yet despite this, both men were deported to Turkey and within a few weeks to their home countries.

=> http://www.legalcentrelesbos.org/2018/06/14/report-on-rights-violations-and-resistance/

  • June: Impunity in the police brutality case

Despite the fact that all of the Moria 35 had been found innocent on the charge of resisting arrest, and despite extensive evidence of police violence; in June the public prosecutor closed the investigation into the police brutality that took place on 18th July 2017, on the basis that there was a lack of evidence, and that the individuals who had submitted claims against the police had been resisting arrest so the police’s use of force was necessary.

  • May – July: Gradual release

In the months that followed the trial, 16 of the Moria 35 were gradually released. All of the individuals released within a year of their initial arrest still had pending asylum cases, either at first instance or on appeal. The 7 who remained incarcerated had cruelly had their imprisonment due to criminal proceedings seamlessly substituted for imprisonment due to asylum proceedings: one man whose case had been closed while he was in prison and unable to reopen it, and 6 who had been rejected at second instance, but had submitted subsequent applications.

  • 1 September

One of the Moria 35 was finally released, on his asylum case finally being reopened.

  • 5 September

Of the 6 of the Moria 35 who remained imprisoned in September, 2 men were particularly vulnerable. They were desperate, suicidal, and had both attempted suicide on different occasions during the 14 months they had been incarcerated. One of the individuals was quoted as saying; “We are not alive in here, so why would we continue to live?”

Both men were finally released on 5th September.

  • 9 – 18 October 2018

The final 4 of the Moria 35 were released over the course of 10 days.

 

The Legal Centre Lesvos will continue to document the institutionalized racism, impunity and gross human rights violations associated with this case, and to fight for justice for the Moria 35. The criminal convictions of 32 of the Moria 35 have been appealed. At the time of writing an appeal date has not yet been given.

…the authorities can not stop the truth from coming out about how Greece and Europe treat migrants in Lesvos. It is the violent attack by the police against African migrants which must be investigated. It is the police who must be brought to justice.”

(Statement of 5 of the Moria 35, March 2018)

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