Will Mediterranean sea rescuers be criminalized by planned law change?
2023-12-08 Lüneburg/Hamburg. The German government is planning a reform of the Residence Act to make it more difficult to smuggle foreigners into Germany. The legal scholars Prof. Dr. Valentin Schatz from the Leuphana University Lüneburg and Prof. Dr. Aziz Epik from the University of Hamburg have now commented on the plan in a legal opinion. They come to the conclusion that the extension of criminal liability to disinterested assistance proposed by the Federal Ministry of the Interior could lead to the criminalization of civil sea rescue.
The Federal Ministry of the Interior is planning to revise Section 96 (4) of the Residence Act. This already criminalizes the self-serving smuggling of non-EEA foreign nationals into an EU or Schengen state in order to combat human trafficking. The planned legislative reform is intended to extend this regulation to cases of altruistic assistance, which could also cover humanitarian sea rescue on escape routes in the Mediterranean.
In their expert opinion, the legal scholars take the view that the conduct of civilian sea rescuers in rescuing and subsequently transporting the rescued persons to a port of disembarkation is justified under criminal law. However, the interpretation of the new criminal provision is fraught with considerable uncertainty, which is why there is a risk that private sea rescuers will be prosecuted or even convicted in Germany in the future. This could have a deterrent effect and thus negative consequences for civilian sea rescue operations in the Mediterranean, which are coordinated primarily from Germany.
The researchers criticize the fact that so far there is no viable justification for the necessity of the planned extension of criminal liability and that it remains unclear what legitimate purpose the new criminal provision should serve. They therefore recommend that legislators refrain from the planned extension of criminal liability, or at least provide for an exception for cases of civil sea rescue. This would also be covered by an EU directive for all forms of humanitarian assistance.
The report was commissioned by the Berlin-based organization #LeaveNoOneBehind
The report is available for download here