In the middle of one night in January 2016, Salam Aldeen received what had now become a routine call regarding boats in distress off of the coast of Greece. Since co-founding Team Humanity, a volunteer rescue organisation, in September 2015, Aldeen had responded to distress calls from approximately 200 boats with a total of approximately 10,000 refugees on board. As per protocol, Aldeen informed the Greek coast guard that he was going out in search of the boats. Yet on this particular evening, Aldeen and the four other volunteer lifeguards with him never reached the refugees in need of rescue. When a military ship came threateningly close to their rescue boat, they altered course and headed back to shore. Before they reached land, two military vessels and the Greek coast guard surrounded them, ultimately arresting them and confiscating their boat. Their alleged crime: human smuggling. Their actions: attempting to fulfil the widely acknowledged duty to rescue at sea.
Aldeen was released from prison after paying a significant fee, but is unable to leave Greece and is required to check in weekly with the Greek authorities. He awaits trial and faces up to ten years in prison. The arrest of Aldeen and the four volunteers is far from unique. Deeply entangled within the EU’s robust fight against human smuggling in the current ‘refugee crisis’ is the threat of criminalisation of a range of humanitarian acts, which should not be punished but rather praised. The European Commission (EC) has rhetorically acknowledged the importance of ‘avoiding risks of criminalisation of those who provide humanitarian assistance to migrants in distress’, yet the actions of individual Member States suggest otherwise. The EC is scheduled to release a proposal by the end of 2016 to ‘improve the existing EU legal framework to tackle migrant smuggling’. I offer five observations as a preliminary framework for considering the deficiencies in the Facilitation Directive and where the boundary between blameworthy acts of smuggling and blameless acts of ‘humanitarian smuggling’ should be drawn. These observations stem from my recently published research through the Refugee Studies Centre, The ‘humanitarian smuggling’ of refugees: Criminal offence or moral obligation?
1. Combatting human smuggling and all humanitarian acts construed as such are in service of the larger goals of deterring and securitising irregular migration. Notably, the Facilitation Directive is first and foremost concerned with deterring irregular migration. ]ne of the objectives of the European Union is the gradual creation of an area of freedom, security, and justice, which means, inter alia, that illegal immigration must be combatted’. Prohibiting the facilitation of irregular entry is merely one means to combat irregular migration. 2. The Facilitation Directive, as transposed into national law, permits the criminalisation of genuinely humanitarian acts. The infringements set out in the Facilitation Directive mirror its expansive intent to sanction, most regularly through criminal law, a wide range of activities that may support irregular migration. Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens.
3. The historic example of the rescue of the Danish Jews during World War II clearly illustrates, with the benefit of hindsight, the moral necessity and praiseworthiness of certain acts of smuggling. The current ‘refugee crisis’ is regularly referred to as the largest crisis since World War II. Equally, international cooperation to resettle refugees in the aftermath of WWII is frequently invoked as a response that should be emulated today. Less frequently invoked, however, are those ‘humanitarian smugglers’ – known today simply as heroes – who rescued Jews from persecution long before the international community stepped in. In 1943, 95% of the Jewish population in Denmark was able to escape deportation to concentration camps, in large part due to the collective action of fellow citizens and the Danish resistance movement. 4. The drafters of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) considered including a safeguard against penalisation for individuals assisting refugees to cross borders irregularly on humanitarian grounds.
Under certain circumstances, Article 31 of the Refugee Convention provides that presumptive refugees may cross borders irregularly and nevertheless be exempt from punishment. The drafters recognised that given the unique and vulnerable predicament of refugees, a refugee may have no choice but to cross borders irregularly and should not be penalised for doing so. There is, of course, no safeguard for ‘humanitarian smugglers’ in the Refugee Convention. Yet, there was a recognition that governments should not – and a false assumption that they would not – criminalise those assisting refugees for humanitarian reasons. 5. The November 2015 landmark Supreme Court of Canada case, R. v. Appulonappa, may set a legal precedent for a more narrowly drafted smuggling offence in the Facilitation Directive to decriminalise ‘humanitarian smugglers’. The November 2015 Supreme Court of Canada (SCC) case, R v. Appulonappa, sets a legal precedent for a narrower smuggling prohibition. ] broad punitive goal that would prosecute persons with no connection to and no furtherance of organised crime is not consistent with Parliament’s purpose’. Possible amendments to S. 117 may serve as a model for a more narrowly drafted prohibition that more accurately delineates between blameless and blameworthy acts of smuggling. These five observations offer entry points into the moral complexities of human smuggling and the legal imperative of decriminalising humanitarian acts of the facilitation of irregular entry. In the current crisis, human smugglers – and all individuals deemed as such – have become Europe’s scapegoat. Targeting human smugglers worthy of criminalisation and those ‘humanitarian smugglers’ worthy of praise is Europe’s Band-Aid solution to a problem that can only be solved through safe and legal pathways for refugees to reach Europe. Photo credit: wikicommons: Syrian and Iraqi refugees arrive from Turkey to Skala Sykamias, Lesbos island, Greece.
“Lawyers occupy a special position in this country’s judicial system. Not only are they representatives of an advocates for their clients, but they are also officers of the court who bear responsibility for ensuring the integrity and fairness of our judicial system. “In the case at bar, (Debtor’s substitute counsel) not only failed to take such care; he went out of his way to encourage the Debtor to disregard the duties imposed upon her. “At the Sanctions hearing, (Debtor’s substitute counsel) testified that ‘I believe my representation of (the Debtor) was in accordance with acceptable practice. This Court strongly disagrees. In sum, (Counsel’s) conduct I this Court has done much to justify the passage of BAPCPA. Congress might well be pleased to know that its perception of abuse is not unfounded. Congress would probably not be pleased to learn about (Counsel’s) conduct. What Does It Mean? The Court’s grounds for awarding sanctions raise questions about where zealous advocacy of a client ends and when obstruction of the bankruptcy process begins. The initial strategy employed by counsel sought to protect his client from the consequences of her actions. This strategy was one possible response to a difficult predicament.
“At the Sanctions hearing, (counsel) testified that his job as counsel for the Debtor, was to look out for her interests, not the interests of creditors. This court agrees with (counsel) that he had a duty to look out for the Debtor’s interests. The Debtor in this case did not need much encouragement to behave badly. Unfortunately counsel provided, and continued to provide, that encouragement over a period of several months (at least according to the Court’s findings). A prompter attempt to make the Debtor cooperate with the Trustee probably would not have changed the Debtor’s behavior. However, it might have salvaged counsel’s reputation. A second lesson to be learned is that Debtor’s counsel lost a valuable opportunity to quietly settle the matter. Over a period of several years, the Trustee’s counsel patiently counsel to reimburse the Trustee for his expenses in opposing the Motion to Dismiss. These quiet efforts were followed by several increasingly more insistent letters. This illustrates the rule that nearly any bad situation can be made worse by failing to address it early on. This case was appealed to the U.S. District Court. On December 28, 2007, U.S. 22,621.89. Barry v. Sommers, No. H-07-0629 (S.D. The case has now been appealed to the Fifth Circuit Court of Appeals. On October 23, 2008, the Fifth Circuit reversed the District Court opinion and entered an order affirming the Bankruptcy Court opinion.
Section 26 of the Indian Electricity Act, 1910 – Theft of Electricity – penalty imposed at Rs. CIVIL APPEAL NO . Western Electricity Supply Co. of Orissa Ltd & Ors. M/s Baba Baijanath Roller and Flour Mill P. Ltd. 3. The respondent-writ petitioner is a registered company, inter alia, carrying on its business under the name and style of M/s. Baba Baijnath Roller and Flour Mill Pvt. Ltd., having installed a Mill in the district of Jharsuguda and is the consumer of the appellant herein. 4.1. The respondent alleged in the writ petition that on an inspection conducted by the appellant on September 9, 2002 at the premises of the respondent, the appellant intimated that at the time of inspection it was found that H.T. Meter, T.P Box’s inner door and meter terminal cover quick seals, plastic seals and paper seals were tampered. In addition, L.T.T.P Box inner door quick seals, plastic seals and paper seals were found tampered. The B-Phase P.T wire was found cut as such the meter was not getting B-Phase potential.
4.3. In these circumstances, a writ petition was filed by the respondent challenging the action on the part of the appellant before the High Court. The respondent-writ petitioner made out a case that the bill used to be received by the writ petitioner was around 80,000/- per month and according to the writ petitioner/respondent, the meter was defective and recording excessive consumption. 4.6. The High Court after hearing the parties held that in case of violation of principles of natural justice even if alternative remedy is available, a writ court can interfere for redressal of grievance of the petitioner. The High Court further held that the representation filed by the writ petitioner was never considered before the imposition of penalty, far less giving an opportunity of hearing to the writ petitioner. Accordingly, the High Court held that this action of the appellant is in clear violation of the principles of natural justice.
In these circumstances, the High Court set aside the penalty charges imposed by the appellant on the writ petitioner/respondent. The inspection report was also quashed on the ground that such inspection was never done in the presence of the authorised persons of the writ petitioner. The High Court further held that since the penalty is untenable, the appellant was not entitled to levy delayed payment surcharge on the penal charges treating it as old arrears or current arrears. In these circumstances, the High Court further directed to refund the amount so paid within three months. 4.7. Being aggrieved, this appeal has been filed by the appellant. 6. The relevant provisions of the Act of 1910 as well as the Code, in particular Clauses 54, 56, 64, 105, 110 and 115, were duly placed before us. “Section 26 – Meters. Provided that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in sub-section (6) has arisen until the matter has been determined as therein provided.
Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days’ notice of his intention so to do. 54. Initial power supply shall not be given without a correct meter. Meters will be installed at the point of supply or at a suitable place as the engineer may decide. The same shall be fixed preferably in the basement or ground floor in multistoried buildings where it will be easily accessible for reading and inspection at any time. The consumer shall run his wiring from such point of supply and shall be responsible for the safety of the meter or metering equipment on his premises from theft, damage or interference. 56. The meters and associated equipment shall be properly sealed by the engineer and consumer’s acknowledgement obtained. The seals, nameplates, distinguishing numbers or marks affixed on the said equipment or apparatus shall not be interfered with, broken, removed or erased by the consumer. The meter, metering equipment, etc. shall on no account be handled or removed by any one except under the authority of the engineer.
The engineer can do so in the presence of the consumer or his representative. An acknowledgement shall be taken from the consumer or his representative when seal is broken. 105. (1) On detection of unauthorised use in any manner by a consumer, the load connected in excess of the authorized load shall be treated as unauthorised load. The quantum of unauthorised consumption shall be determined in the same ratio as the unauthorised load stands to the authorised load. The penal energy charges for unauthorised use of power shall be two times the charges applicable to the particular category of consumer. The penal demand charges for unauthorised use of power in cases covered under two part tariff shall be calculated on un-authorised connected load expressed in KVA multiplied by two times the rate of demand charges applicable. In respect of orders or lack of orders of the chief executive officer of the licensee on matters provided under Section 33 of the Act, the consumer may make a reference to the Commission under Section 37(1) of the Act.
7. Therefore, it would be evident from Section 26(6) which carves out an exception, that where there is an allegation of “fraud”, the same provision is not attracted. He further contended that invariably a plea is being taken by the consumer found to have committed theft of electricity that his meter was defective. In the instant case, in accordance with Section 26(4), an inspection was conducted in the presence of the representative of the respondent. 9. In these circumstances, it is submitted that the order of the High Court cannot be sustained under the provisions of law. The penal bill was quashed only on the ground that the unit of the respondent was closed. Such fact is immaterial and irrelevant in respect of demand of a penal bill. The approach of the High Court is patently erroneous. 10. Per contra, it is submitted on behalf of the respondent that the argument of the appellant could have succeeded if the appellant could prove that the respondent had indulged in theft of electricity.
11. We have noticed the facts in this case. 14. We have also noticed in Madhya Pradesh Electricity Board & Ors. In Sub-Divisional Officer (P), UHBVNL v. Dharam Pal 2006 (12) SCC 222, it appears to us that in case of tampering, there is no scope for reference to Electrical Inspector. “9. In State of W.B. Rupa Ice Factory (P) Ltd. ], it was observed as follows: (SCC p. ] and J.M.D. Alloys Ltd. ] it has been held that in cases of tampering or theft or pilferage of electricity, the demand raised falls outside the scope of Section 26 of the Electricity Act. If that is so, neither the limitation period mentioned in Section 26 of the Electricity Act nor the procedure for raising demand for electricity consumed would arise at all. In this view of the matter, that part of the order of the Division Bench of the High Court, directing that there should be a reference to the Electrical Inspector, shall stand set aside. In other respects the order of the High Court shall remain undisturbed. 16. In these circumstances, the appeals are allowed, the writ petitions filed by the respondent/writ-petitioner are dismissed and the order passed by the High Court is set aside.
Did you ever feel like you are falling into an abyss with no bottom? If you haven’t, then you aren’t a still-not-retired PERS member. Today brought the latest salvo from a malign, myopic, and malignant group of Republican frat boys in the Senate who have wet dreams just thinking about ways to screw all PERS members not yet retired. First, for a possibly good piece of news. 100,000 previously proposed in an earlier amendment. Now for the elements of the bill, made necessarily brief to keep this post readable. 1. 5 year average instead of 3 for Final Average Salary (this is actually from SB 559, but seemingly greatly elaborated here). 2. Lowering the Full Formula service multipliers from their current 1.67% and 2.0% for Tiers 1 and 2, and from 1.5% and 1.8% for OPSRP to some UNKNOWN amount. This version removes the specific 1.0% and 1.2% multipliers and literally replaces them with blanks, to be filled in at some point so you can be surprised.