Thematic training program for NGO operating at the border
Saving Lives or Smuggling: Put on Your Own Oxygen Mask First
Ideas Block, A. Goštauto g. 11, 01108 Vilnius. 29 April 2023
Dear Volunteers,
Compassion makes us human. It makes sense speaking about humanity in times when humanity is questioned. We admire your brotherhood, your spirit and determination.
Following the definition given by the UN Declaration on Human Rights Defenders, a Human Rights Defender is a person who, individually or in association with others, promotes and strives for the protection and realisation of human rights and fundamental freedoms at national and international levels in a peaceful manner. The term is used broadly and can include activists, journalists, scholars, and lawyers. There is no secret, Human Rights Defenders are at high risk of facing repression and various forms of criminalisation while protecting, promoting and safeguarding fundamental freedoms and human rights. According to ReSoma, between 2015 and 2019, 171 migrant rights defenders were being prosecuted (at least 60 cases concerning criminal proceedings) in European countries on charges such as “human trafficking,” “facilitation of entry or transit,” or “facilitation of residence”.
There is no need to feel unsafe either. Feeling unsafe makes you vulnerable and threatens people around you. You must know what’s right. The only way to overcome your fear is learning. Learning from others’ example is obviously easier, learning from each other is the best recipe to build a community.
Having studied your input, we have prepared this training program, including introduction to the basic concepts of criminal justice, analysis of Lithuanian law and court practice. We will look together at the structure of your concerns, submitted through our survey. It is always useful to walk in each other’s’ shoes and we will try that in our case study exercise. Finally, we will study the ongoing cases when a Human Rights Defender faces criminalisation and possible legal, institutional and informal mechanisms to take.
Saving lives is not a crime.
Yours sincerely,
Rytis Satkauskas
ReLex Managing Partner
Training course overview
Part I. Know Where Your Mask is Located
Know what’s illegal. It is important to know what actions or omission constitute a crime. Criminal intent is an essential element of the concept of crime. However, intent, criminal knowledge (of a predictable result), recklessness (knowing about associated risks) and negligence (failing to use reason) can all constitute the mens rea (the quilty mind) – the essential part of a crime.
Know who’s the victim. The law describes various forms of complicity in crime. Instigating, assisting, organising a crime is punishable. Article 24 of the CC identifies as assistance acts of giving advice; giving instructions; providing means; removing obstacles; protecting or covering for other accomplices; a promise made in advance to conceal the offender, the instrumentalities of the offence or means, traces of the offence or objects acquired by the offender; a promise to dispose of the proceeds of the offence or objects obtained or produced from the offence.
Know the smuggler. The crime of migrant smuggling is characterized by the facilitation of illegal entry of a person; the creation or supply of a false identity document or passport; the regularisation, by illegal means, of the permanent stay. For financial or other material gain. People smuggling generally takes place with the consent of the person or persons being smuggled, don’t be fooled by appreciation. People at risk and people in fear. Patterns of collaboration of migrant victims of human trafficking with their traffickers, often in recruitment or intermediary roles, in order to finance their own journey are common.
Know your fears, share your fears. Change Speaking to authorities is frustrating. Speaking to authorities is important. If you will not communicate your issues, somebody else will. Coordinate. Let’s exercise!
Part II. Know To Put It On
Know your rights. Confronting an authority is not recommended. Your rights is one good topic for a chit chat if you do. Observing border regime requirements, complying with the requests of the officials, keeping authorities informed will keep you away from engaging. Ignoring administrative requirements will lead to a more direct risk of administrative sanctions.
Know to communicate. You have the right to let everyone know. Especially your lawyer. You have the right to keep silent. Know your mission.
Know the procedure. Court of Justice of the European Union in C-821/19 on legislation in Hungary, recognized that the criminalization of the actions of any person who assists irregular migrants in applying for asylum is unacceptable and does not comply with EU legal standards. The Court noted that even the theoretical possibility of such criminalization is detrimental to the protection of human rights. According to the law, both national and international, activities to assist the foreigners should be criminalized only “when committed intentionally and for the purpose of obtaining, directly or indirectly, a financial or other material benefit”. The term “financial or material benefit” included in the definition may be interpreted excessively broadly by the authorities to include cases such as a cab driver who transports a migrant in an irregular situation and charges the normal fare for the ride, or a citizen who rents a room at a fair price to a migrant in an irregular situation. However, the application of criminal legislation should respond to its main objective: to fight organized networks of human traffickers and protect migrants. It should not be used to intimidate migrants and those in solidarity with them.
Help your neighbour. Saving lives is not a crime. Leaving one helpless – is.
Training Course Program
12:00 Objectives and methodology (Rytis Satkauskas)
12:30 Introduction to the concept of a crime. Body of crime. Objective and subjective aspects of a crime. (Gediminas Viederis)
12:45 Concept of complicity: instigating, assisting and organising. Failure to report, public order and other related offences. (Gediminas Viederis)
13:15 Definition of smuggling. Elements of Article 292. Court practice. (Gediminas Viederis)
13:45 Things that matter. (Rytis Satkauskas)
14:15 Survey overview
14:30 Coffee break
15:00 Case study. (Rytis Satkauskas, Gediminas Viederis)
15:20 More coffee
15:30 State border regime, Crimes and administrative offences at the state border. (Gediminas Viederis)
15:45 Your procedural rights. (Rytis Satkauskas)
16:00 SLAPs – Cases against rights defenders. (Rytis Satkauskas)
16: 15 In Defense of Defenders. (Rytis Satkauskas)
16:30 Case study results. (Rytis Satkauskas, Gediminas Viederis)
16:45 Things that matter most. (Rytis Satkauskas)
17:00 Informal conversations
Information ressources
https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/28b18041843311e89188e16a6495e98c
https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2652
https://www.osce.org/files/f/documents/c/1/119633.pdf
https://borderviolence.eu/reports/in-defence-of-defenders/
https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2018)013-e
https://plantnetwork.org/wordpress/wp-content/uploads/9122/volunteers-and-the-law.pdf
https://rm.coe.int/expert-council-conf-exp-2019-1-criminal-law-ngo-restrictions-migration/1680996969
http://www.coe.int/t/commissioner/default_en.asp
https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d3e52
https://www.eeas.europa.eu/eeas/eu-guidelines-human-rights-defenders_en
https://www.europarl.europa.eu/RegData/etudes/STUD/2022/730345/EPRS_STU(2022)730345_EN.pdf
https://fra.europa.eu/en/news/2022/protecting-migrants-and-refugees-rights-defenders
https://www.omct.org/en/resources/news/the-observatory-for-the-protection-of-human-rights-defenders
https://www.ohchr.org/sites/default/files/PrinciplesAndGuidelines.pdf
https://www.ohchr.org/en/special-procedures/sr-migrants
https://www.ohchr.org/en/special-procedures/wg-arbitrary-detention
https://demokracija.eu/top2/ngo-actors-encourage-illegal-migration-and-threaten-the-police/
https://www.hrw.org/news/2022/04/01/polish-activists-arrested-saving-lives
https://www.ohchr.org/en/press-releases/2023/01/trial-human-rights-defenders-greece-helping-migrants
https://news.un.org/en/story/2022/02/1112032
https://ishr.ch/latest-updates/hungary-european-court-rule-criminalisation-human-rights-defenders/
Lecturers
Gediminas Viederis is practicing criminal law since 1999. He graduated Law at Vilnius University and worked at Vilnius regional prosecutor’s office, Supreme Court of Lithuania, and private law firms. 2007 to 2017 he was a judge at Vilnius regional court, vice-president of the court. Gediminas attended European Law Academy workshops in Tier, Barcelona and Paris on topics related to European arrest warrant, e-Crimes and organised crime.
Rytis Satkauskas is ReLex Managing Partner, Associate Professor of Public International Law at Mykolas Romeris University and a barrister at Lithuanian bar since 2004. He is a specialist in public international law and represents states, companies, organisations and individuals in domestic and international courts. Rytis practices in various fields of public international law, such as treaty law and responsibility of states, diplomatic immunity, law of the sea, humanitarian law, settlement of disputes, international investment law, human rights and protection of biodiversity.
