PACE Resolution 2109 (2016) The situation of refugees and migrants under the EU-Turkey Agreement of 18 March 2016
1. The Parliamentary Assembly takes note of the European Union-Turkey Agreement of 18 March 2016, adopted against the background of the unprecedented numbers of refugees and migrants arriving in western Europe via the Eastern Mediterranean and Western Balkans route in 2015, which had generated political tensions in many States and an institutional crisis in the European Union. It recalls the fact that Turkey currently hosts over 2.7 million Syrian refugees, on whom it estimates to have spent over €7 billion.
2. The Assembly considers that the EU-Turkey Agreement raises several serious human rights issues relating to both its substance and its implementation now and in the future, in particular the following:
2.1. the Greek asylum system lacks the capacity to ensure timely registration of asylum applications, issue of first instance decisions or determination of appeals; the new Greek Law 4375/2016 may help to address earlier shortcomings but will not ensure adequate capacity;
2.2. detention of asylum seekers in the “hotspots” on the Aegean islands may be incompatible with the requirements of the European Convention on Human Rights (ETS No. 5), due notably to procedural failures undermining the legal grounds for detention and inadequate detention conditions;
2.3. children and vulnerable persons are not systematically referred from detention to appropriate alternative facilities;
2.4. returns of Syrian refugees to Turkey as a “first country of asylum” may be contrary to European Union and/or international law, as Turkey may not ensure protection that is “sufficient”, according to the position of the Office of the United Nations High Commissioner for Refugees (UNHCR), and there have been reports of onward refoulement of Syrians;
2.5. returns of asylum seekers, whether Syrians or not, to Turkey as a “safe third country” are contrary to European Union and/or international law, as Turkey does not provide them with protection in accordance with the 1951 Convention relating to the Status of Refugees, non-Syrians do not have effective access to the asylum procedure and there have been reports of onward refoulement of both Syrians and non-Syrians;
2.6. remedies against decisions to return asylum seekers to Turkey do not always have automatic suspensive effect, as required by the European Convention on Human Rights;
2.7. resettlement of Syrian refugees from Turkey is made conditional on the number of returns from Greece and will subsequently depend on a “Voluntary Humanitarian Readmission Scheme”, which is likely in practice to generate unacceptably low levels of resettlement;
2.8. there have been unreasonable delays in the European Union’s disbursement of Financial assistance promised to Turkey to help support Syrian refugees in Turkey, which should not depend on developments in the Aegean Sea.
3. The Assembly also has concerns relating to certain parallel initiatives in areas closely related to the EU-Turkey Agreement, in particular the following:
3.1. the closure by “the former Yugoslav Republic of Macedonia” of its southern border, coupled with the EU-Turkey Agreement, has added to the pressure on Greece, a country already struggling with the effects of budgetary and financial austerity;
3.2. most European Union member States have effectively failed to honour their pledges to relocate refugees from Greece, despite the growing pressure that country is under;
3.3. it is premature to consider resuming transfers to Greece under the Dublin Regulation given the continuing inadequacies of its asylum system, the additional pressure of its current situation and the fact that the Committee of Ministers of the Council of Europe has not yet closed supervision of execution by Greece of the judgment of the European Court of Human Rights in the case of M.S.S. v.Belgium and Greece.
4. The Assembly therefore recommends that Greece, as an implementing party of the EU-Turkey Agreement, and the European Union, insofar as it provides relevant operational assistance to the Greek authorities:
4.1. refrain from automatic detention of asylum seekers and ensure strict adherence to the requirements of national law, the European Convention on Human Rights and European Union law concerning both the grounds for and conditions of detention, with adequate provision for alternatives where detention is not justified or otherwise inappropriate, including following the expiry of time limits;
4.2. systematically ensure that children and vulnerable persons are promptly excluded from detention and referred to appropriate alternative facilities;
4.3. ensure that the rights and provisions under the European Union Reception Conditions Directive are fully respected for all refugees and migrants arriving in Greece;
4.4. refer the question of interpretation of the concept of “sufficient protection” in Article 35 of the
European Union Asylum Procedures Directive to the Court of Justice of the European Union and, until such interpretation has been given, refrain from involuntary returns of Syrian refugees to Turkey under this provision;
4.5. refrain from involuntary returns of asylum seekers to Turkey in reliance on Article 38 of the Asylum Procedures Directive;
4.6. ensure that sufficient resources, from within the Greek administration and seconded from other European Union member States, are rapidly made available so as to allow effective access to a proper asylum procedure and rapid first instance decisions and appeal determination, in accordance with European Union law, especially for applicants in detention;
4.7. revise the legislation to ensure that all appeals against decisions to return to Turkey have an automatic suspensive effect;
4.8. ensure that all migrants and asylum seekers whose applications are not accepted are treated with dignity and in full compliance with the European Union Return Directive.
5. The Assembly also recommends to the European Union, its member States, and States participating in European Union resettlement schemes, as appropriate:
5.1. resettlement pledges made under the 20 July 2015 European Union agreement on resettlement should be rapidly and fully honoured, regardless of developments in the implementation of the EUTurkey Agreement; beyond that, substantial numbers of Syrian refugees should be resettled from Turkey;
5.2. family reunion of refugees should be allowed without any delay or complicated procedures, in order to prevent family members from being forced to take an irregular route to reunification;
5.3. the financial assistance promised to Turkey in November 2015 to help support Syrian refugees should be disbursed without further delay;
5.4. commitments to relocate refugees from Greece should be rapidly fulfilled;
5.5. there should be no further consideration of resuming transfers to Greece under the Dublin
Regulation until the Committee of Ministers has closed its supervision of execution by Greece of the M.S.S. judgment.
6. Finally, the Assembly recommends that Turkey:
6.1. withdraw its geographical limitation to the 1951 Refugee Convention and recognise the status and fully respect the rights of refugees under that convention;
6.2. refrain from any onward refoulement of asylum seekers returned from Greece, ensuring access to the asylum system and to an effective remedy with suspensive effect against removal as required by the European Convention on Human Rights;
6.3. ensure that all migrants and asylum seekers returned from Greece are treated in full accordance with international standards, including on detention.
Strasbourg Court confirms inadequacy of Greek asylum system and condemns collective expulsions from Italy
The European Court of Human Rights delivered today its Chamber judgment in the case of
Sharifi and Others v. Italy and Greece (application no. 16643/09).
The case concerned 32 Afghan nationals, two Sudanese nationals and one Eritrean national, who alleged, in particular that they had entered Italy illegally from Greece and been returned to that country immediately, with the fear of subsequent deportation to their respective countries of origin, where they faced the risk of death, torture or inhuman or degrading treatment.
The Court held, by a majority, concerning four of the applicants, Reza Karimi, Yasir Zaidi, Mozamil
Azimi and Najeeb Heideri (also known as Nagib Haidari), who had maintained regular contact with their lawyer in the proceedings before this Court, that there had been:
a violation by Greece of Article 13 (right to an effective remedy) combined with Article 3
(prohibition of inhuman or regarding treatment) of the European Convention on Human Rights on
account of the lack of access to the asylum procedure for the above-named applicants and the risk
of deportation to Afghanistan, where they were likely to be subjected to ill-treatment;
a violation by Italy of Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens);
a violation by Italy of Article 3, as the Italian authorities, by returning these applicants to Greece,
had exposed them to the risks arising from the shortcomings in that country’s asylum procedure;
a violation by Italy of Article 13 combined with Article 3 of the Convention and Article 4 of Protocol
No. 4 on account of the lack of access to the asylum procedure or to any other remedy in the port of Ancona.
The Court held, in particular, that it shared the concerns of several observers with regard to the
automatic return, implemented by the Italian border authorities in the ports of the Adriatic Sea, of
persons who, in the majority of cases, were handed over to ferry captains with a view to being removed to Greece, thus depriving them of any procedural and substantive rights.
In addition, it reiterated that the Dublin system – which serves to determine which European Union
Member State is responsible for examining an asylum application lodged in one of the Member States by a third-country national – must be applied in a manner compatible with the Convention: no form of collective and indiscriminate returns could be justified by reference to that system, and it was for the State carrying out the return to ensure that the destination country offered sufficient guarantees in the application of its asylum policy to prevent the person concerned being removed to his country of origin without an assessment of the risks faced.
Link to press release:
In the early hours of 20 January 2014, a boat coming from Turkey carrying twenty-seven Afghan and Syrian migrants was intercepted by the Greek coast guard near the isle of Farmakonisi, in the southeast Aegean Sea, and later capsized. Eight migrant children and three migrant women drowned. While this operation was described by the Greek authorities as a rescue, the migrant survivors adamantly alleged that it was, in fact, a ‘push back.’ ‘Push back’ is a widely-used term that has overshadowed the legal term, ‘collective expulsion,’ the prohibition of which was expressly provided for in 1963 in the one-sentence, oft-forgotten, Article 4 of Protocol No. 4 (‘Article 4-4’) to the European Convention on Human Rights (‘ECHR’).
In the case of Becker v. Denmark, the former European Commission of Human Rights defined collective expulsion as any measure ‘compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group.’ The purpose of Article 4-4 is to enable migrants to contest the expulsion measure, thereby guarding against state arbitrariness and safeguarding fairness in forced return procedures.
Under the Strasbourg Court’s established case law, the fact that members of a group of migrants are subject to similar, individual expulsion decisions does not automatically mean that there has been a collective expulsion, insofar as each migrant is given the opportunity to argue against this measure to the competent authorities on an individual basis.
Moreover, there is no violation of Article 4-4 if the lack of an expulsion decision made on an individual basis is the consequence of applicants’ own ‘culpable conduct’. For example, in Berisha and Haljiti v.“the former Yugoslav Republic of Macedonia,” the applicants had pursued a joint asylum procedure and thus received a single common decision. Another example is the case of Dritsas v. Italy, in which the applicants had refused to show their identity papers to the police and as a result, the latter had been unable to issue expulsion orders to the applicants on an individual basis.
The locus classicus case involving interception at sea is Hirsi Jamaa and others v. Italy. This case concerned the 2009 interception and forced return to Libya of a large group of African migrants by Italian navy ships in the Mediterranean, based upon relevant bilateral agreements between Italy and Libya. The Court in this case noted that Article 4-4 is applicable not only to migrants lawfully within a state’s territory but also to all foreign nationals and stateless individuals who pass through a country or reside in it. The Court found Italy to be in violation of the above provision on the grounds that the migrants’ transfer to Libya was carried out without any examination of their individual situations, there was no identification procedure conducted by the Italian authorities, and the staff aboard the transporting ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers.
State responsibility in this context also arises under Article 2 ECHR (right to life), as demonstrated in another, earlier Strasbourg Court case, Xhavara and fifteen others v. Italy and Albania. This case concerned the interception in 1997 of a group of Albanian irregular migrants in the Mediterranean by an Italian navy ship. Fifty-eight migrants drowned as a result. The Court held that, given that the fatal accident was caused by an Italian navy ship, the Italian authorities were under an obligation, pursuant to Article 2 ECHR, to carry out an investigation that was ‘official, effective, independent and public.’ On this point, the Court concluded that the criminal investigation initiated by the Italian authorities had provided adequate safeguards with respect to the effectiveness and independence requirements.
The tragic migrant interception operation in the Aegean Sea last January is part of the long list of tragedies in the Mediterranean and a consequence of long-standing European migration policies and practices that make migrants’ lawful entry into Europe overly difficult. Although European states have no legal obligation to change their policies, they are nonetheless under a clear legal obligation to provide adequate redress to migrants who have undergone such painful odysseys due to ‘push back’ or rescue attempts.
published at: http://ohrh.law.ox.ac.uk/?p=4322