Are all escape helpers criminals?

It is a well-known phenomenon: people coming to Europe from Afghanistan, Iran or Syria are, in the majority of cases, dependent on help from traffickers. Experience shows that the perpetrators use every conceivable method to hide refugees and transport them to their destination - lorries with false wall and floors, hiding-places in containers or trains, crossing so-called green borders, or "open smuggling" as airline passengers. "Irregular migration is one of the fundamental global challenges," says a status report issued by the German Ministry of the Interior, which continues by stating, "Against a background of ever scarcer resources, migration policies and controlling migration have become highly important."

Traffickers face long prison sentences because in Germany helping people to escape is seen as a form of organised crime. But do traffickers or smugglers always have only financial or criminal interests? Or do they simply want to help? "German legislation does not distinguish between criminal traffickers and private persons helping others to escape or flee," explains Dr. Julia Trinh, who has made a study of current legislation in her dissertation on ’The Culpability of Helping People to Flee’. Legal scholar Trinh has therefore drawn up a proposal for a reform of the law which would provide for a distinction to be made between criminal traffickers and people providing humanitarian help for refugees.

Is smuggling also a punishable offence if the perpetrators are clearly acting out of a motive to provide help in a spirit of solidarity? Yes, ruled Germany’s Federal Court of Justice in 2015. In December 2013 two Syrians had each been sentenced to three years’ imprisonment by a court in Essen for bringing foreigners into the country for commercial gain. They wanted to have their sentences revised but failed in the effort. The Essen court established that the accused had brought Syrian refugees into Germany in return for a payment of several thousand euros. These refugees had first been staying in Greece - illegally and without any valid documents. The two traffickers had a solution for this: they got fake identity documents drawn up and organised an onward journey to Germany - but without the hoped-for success. The German authorities rejected the applications for asylum because the Syrian refugees were not able to produce the correct identity documents, and also because they had entered the country from a safe third country. The two traffickers were found guilty of commercial trafficking.

"Looked at objectively, it was a case of unauthorised entry into the country. The opposing motivations of criminal traffickers and people providing humanitarian help for refugees played no decisive role in the case," says Trinh, who completed her PhD at the Institute of Criminology at the University of Münster. Therefore, she advocates a revision of the statutory offence of trafficking/smuggling people.

Since the mid-1990s, helping someone to escape or flee has been equated with organised crime. Julia Trinh therefore thinks it is necessary to change the relevant elements defining the deed in Paragraph 96 of the German Residence Act. Bringing foreigners into the country illegally should only be a punishable offence if someone acts for commercial reasons; if they exploit the helplessness and/or the personal or economic dire straits which other persons find themselves in; if they carry out sexual acts on them or cause them to do so with others; and/or if they put other people into a position in which their lives are in jeopardy, and they are threatened with inhuman or humiliating treatment or their health may be harmed.

Potential prison sentences for traffickers begin with three months. However, anyone who acts for commercial reasons, is a member of a gang and even perhaps has a weapon, must expect to be imprisoned for at least six months and for up to ten years - regardless of what motivated them. If for example a sea-rescue crew consisting of more than three members goes out on a mission, it is already considered to be a gang, even if it saves people from drowning. This is why Julia Trinh advocates having "flexible elements instead of fixed elements qualifying the deed as a crime". This would allow courts to impose higher penalties in the case of profit-oriented trafficking. If, however, there is no reprehensible motivation involved in the deed, courts could impose a simple range of sentences of between three months and five years. Trinh also calls for people who smuggle family members into Germany to be exempt from punishment, and that there should not be any punishment if the smuggling carried out was humanitarian aid to refugees.

Julia Trinh’s proposal for a reform of the legal definition of trafficking/smuggling currently remains unheeded by legislators. The Federal Court of Justice merely stated, in October 2018, and with reference to Paragraph 96 of the Residence Act, that there may possibly be no intentional predicate offence in the case of minors, due to their young age. In the case of juveniles, said the Court, there needs to be an explanation of why the age precludes any intentional predicate offence. In the case of children, the Court continued, such an intention requires a more detailed, individual explanation as it is doubtful whether children are aware that they are crossing the border into the Federal Republic of Germany. For this reason, and on the recommendation of the Court of Justice, an independent definition of the offence for minors was drawn up. "The Federal Ministry of the Interior and Community is not currently looking at any need to go further and reform Paragraph 96 of the Residence Act," says Dr. Christina Wendt, a spokeswoman for the Ministry.

This article was first published in the University newspaper " wissen