The ›hotspots‹ in Greece
COMMENTS ON THE LEGAL STRUGGLES AGAINST THE EU-TURKEY STATEMENT
Yiota Masouridou
On 18 March 2016, the EU-Turkey Statement was published on the European Council’s website in the form of Press Release No 144/16,(1) as a response to the »crisis situation« in Syria, culminating the joint action plan of Turkey and the EU initiated in 2015.
Amongst others, the aim of the Statement was to »break the business model of the smugglers and to offer migrants an alternative to putting their lives at risk«. Thus, the EU and Turkey decided to end the irregular migration from Turkey to the EU by agreeing that »all new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey«, a »temporary and extraordinary measure which is necessary to end the human suffering and restore public order«.
A diametrically opposed solution was examined during the same period, by the Court of Justice of the European Union (CJEU) which dealt with the issue of granting humanitarian visas to Syrians while still residing in Syria under Article 25(1)(a) of the Visa Code, thus providing for a legal route to EU Member States. Advocate General Mengozzi, stated in his remarkable Opinion delivered on February 7, 2017:
»It is, in my view, crucial that, at a time when borders are closing and walls are being built, the Member States do not escape their responsibilities, as they follow from EU law or, if you will allow me the expression, their EU law and our EU law (§ 4) […] the refusal to recognise a legal access route to the right to international protection on the territory of the Member States – which unfortunately often forces nationals of third countries seeking such protection to join, risking their lives in doing so, the current flow of illegal immigrants to EU’s borders – which seems to me to be particularly worrying, in the light, inter alia, of the humanitarian values and respect for human rights on which European construction is founded (§ 6). Frankly, what alternatives did the applicants in the main proceedings have? Stay in Syria? Out of the question. Put themselves at the mercy of unscrupulous smugglers, risking their lives in doing so, in order to attempt to reach Italy or Greece? Intolerable. Resign themselves to becoming illegal refugees in Lebanon, with no prospect of international protection, even running the risk of being returned to Syria? Unacceptable. (§157) To paraphrase the European Court of Human Rights, the purpose of the Charter is to protect rights which are not theoretical or illusory, but real and effective (§158).The refusal to issue the visa sought thus has the direct consequence of encouraging the applicants in the main proceedings to put their lives at risk, including those of their three young children, to exercise their right to international protection.(§ 159) In view of the Visa Code and the commitments undertaken by the Member States, that consequence cannot be tolerated. At the very least, it is contrary to the right guaranteed by Article 4 of the Charter (§160)«.(2)
Unfortunately the CJEU did not share those fundamental legal values and decided to the opposite.(3)
The legal and policy choice of the EU in relation to the south east Mediterranean »refugee route« is governed until today by the »temporary and extraordinary measure« of the EU-Turkey Statement, following which ›hotspot‹ asylum and return procedures have been established in Greece.(4)As a result, the five islands of Lesvos, Chios, Kos, Samos and Leros are designated as the ›topoi‹(5)and the Greek authorities (first reception service, asylum service, appeals committees and police) with European Asylum Support Office (EASO) and FRONTEX are the agents implementing exceptional asylum and return proceedings on the basis of the Statement beyond national and EU law.
During these three and a half years many European entities and affected individuals have undertaken legal actions in order to challenge the procedures surrounding the EU-Turkey Statement and the asylum and return operations carried out in its ›topoi‹. It is worth mentioning the following:
A. DIRECT CHALLENGE OF THE EU-TURKEY STATEMENT BY AFFECTED INDIVIDUALS
1) Three asylum seekers residing in Lesvos, Greece brought on 22.04.2016 applications for annulment of the Statement based on Article 263 TFEU before the General Court of the EU. Following the relevant case law, the Statement was an act of the Member States of the EU and not an act of EU institutions, thus EU courts lack jurisdiction.(6)
2) Many rejected asylum seekers following ›hotspot‹ procedures have challenged the Statement and its legal implications before the Greek courts and the European Court of Human Rights (ECHR). Some of them will be highlighted here.
a) J.B., a Syrian in Lesvos, Moria ›hotspot‹ – whose asylum application has been found inadmissible on the findings of EASO, the Greek Asylum Service, the Greek Appeals Committee and the administrative court responsible to examine the legality of the administrative procedure – lodged on 09.09.2016 an appeal before the ECHR, supported by Refugee Support Aegean lawyers and Pro Asyl. The case was communicated on 18.05.2017 and the delivery of the long-awaited decision is pending.(7)
b) M.D. and H.A., Syrians in Lesvos, Moria ›hotspot‹ – whose asylum applications have been found inadmissible on the findings of EASO, the Greek Asylum Service and the Greek Appeals Committees that Turkey is a safe third country for them – challenged on 14.09.2016 and 04.10.2016 the rejection of their individual cases (individual administrative acts) jointly with the regulatory acts establishing the newly appointed in July 2016 Appeals Committees. According to the Greek system for administration of justice, this legal challenge needs to take place within a specific time limit from the adoption of the regulatory acts and is examined directly by the Council of State, the highest court in Greece. The cases were referred to the Plenary upon decisions of the Fourth Section of the Court. By its decisions 2347/2017 and 2348/2017 delivered on 22.09.2017, the Plenary of the Supreme Administrative Court of Greece rejected the claims of the applicants relating to the legality of the administrative procedure by Greek state organs and EASO and the applicants’ assertion that Turkey is not a safe country for them. It further decided by majority of 13 judges – against 12 dissenting – not to submit a preliminary reference to the CJEU in accordance with Article 267 of the Treaty relating to the interpretation of Article 38(1) Dir 2013/32.
c) A.H., an Iranian national, had his asylum case rejected on the merits upon ›hotspot‹ asylum procedures in Moria. While he had challenged the rejection of his asylum application before the competent administrative court and his application for interim measures was pending, Greek police and FRONTEX officers attempted to deport him on 27.4.2017 to Turkey as a failed asylum seeker, implementing ›hotspot‹ return procedures. The rejected asylum applicant brought a complaint against FRONTEX and an appeal before ECHR. On 09.05.2017 the Court indicated to the Government of Greece, under Rule 39, that the applicant should not be removed. The case before ECHR has not been communicated yet. The complaint against FRONTEX did not produce any concrete outcome. A similar appeal is pending before ECHR by A.A., a Pakistani national. Rule 39 was granted in this case as well. It is noted that many rejected asylum seekers in the ›hotspots‹ have challenged the rejection of their applications before national courts – either on admissibility grounds due to the application of Safe Third Country (STC) vis-à-vis Turkey or on the merits. The prevailing reasoning in the domestic case law follows the Council of State decisions.(8)
B. LEGAL ACTIONS BY EUROPEAN ASSOCIATIONS AGAINST THE IMPLEMENTATION OF THE EU-TURKEY STATEMENT
1) ›Access Info Europe‹, an association established in Madrid, requested to have access to documents of the European Commission related to the legality of the EU-Turkey agreement. Access was denied and ›Access Info Europe‹ challenged the denial before the General Court of the EU by lodging two applications on 30.11.2016 based on Article 263 TFEU (Treaty on the Functioning of the European Union). As the applicant states »The refugee crisis, and the associated humanitarian crisis, has been the most debated political topic in the EU during 2016 and yet key decisions are being taken with an abysmal lack of transparency, let alone public participation«.(9)Both cases were rejected.(10) It is worth reading those decisions as they shed light on the procedures surrounding the adoption of the EU-Turkey Statement.
2) On 13.7.2017, the ›European Center for Constitutional and Human Rights‹ (ECCHR), a Berlin-based NGO, brought a complaint before the European Ombudswoman against the European Asylum Support Office (EASO) claiming that the EU agency exceeds its mandate in its involvement in the asylum procedures in the Greek ›hotspot‹ and violates EU fundamental rights during the course of conducting asylum interviews in ›hotspot‹ in Greece. The Ombudswoman accepted that the complaint raises genuine concerns about the extent of the involvement of EASO personnel in assessing asylum applications in the Greek hotspots and about the quality of, and procedural fairness in the conduct of admissibility interviews. However, she closed the inquiry. It is important to point out the legal arguments put forward by the Ombudswoman to justify her decision.
»The Ombudsman recognises that […] EASO is being encouraged politically to act in a way which is, arguably, not in line with its existing statutory role. […] The Ombudsman notes that it is likely that EASO’s founding Regulation will be amended in the near future to provide explicitly for the type of activity in which EASO is currently engaged, thus resolving the issue of EASO possibly operating outside of its statutory brief. The Ombudsman therefore considers that further inquiries into this aspect of the complaint would serve no useful purpose and are therefore not justified«.(11)
Are these legal battles a waste of our time? Should lawyers across Europe accept the situation as it is and avoid any further legal actions in the future? Are all these just lost cases? Is it after all just a Greek issue? All these unsuccessful legal struggles illustrate how the rule of law has been blatantly bypassed as EU institutions and agencies collude with Member States and act outside the EU regulatory framework. It is also clear from this ›crisis case law‹ that courts are unwilling to be the first ones to tackle this kind of dominance of policy upon law.
From my point of view, it is important to be aware of this case law and proceed to further legal actions. First of all, there is a nexus with regards to law, pleadings and evidence in all these cases. Therefore, they are all linked and interrelated. Moreover, it is the lawyers’ duty to send a clear signal that the rule of law and fundamental rights should be respected at all times, specifically when things get tough.
We need to learn from the legal actions so far and proceed to further battles with a Pan-European holistic approach. The EU-Turkey Statement is still applicable despite the fact that Turkey has lodged three military operations in Syria since 2016 – the third against the Kurdish People’s Protection Units ongoing –, therefore producing refugees and displacement, and while the Turkish Government declares that Syrian refugees on its soil will be returned to the ›safe zone‹ to be created in Syria. Thus, the principle of non-refoulement, a core achievement of our European legal culture, is being violated by all national and EU actors involved in the implementation of the Statement. It’s time for lawyers across Europe to act more effectively.
Yiota Massouridou is a Greek lawyer based in Athens. She is a member of ›Ένωση Δικηγόρων για την Υπεράσπιση των Θεμελιωδών Δικαιωμάτων‹ (ΕΔΥΘΔ), the Lawyers’ Union for the Defense of Human Rights (LUftDHR), and a Greek member of the European Democratic Lawyers (AED-EDL).
(1) European Council, press release 18 March 2016, https://www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/.
(2) Case C-638/16 PPU X,X v État belge, Opinion of AG Mengozzi, delivered on 7.2.2017.
(3) Case C-638/16 PPU X,X v État belge.
(4) For an overall description of the hotspot asylum and return procedures, Yiota Masouridou and Evi Kyprioti, The EU-Turkey Statement and the Greek hotspots: A failed European pilot project in Refugee Policy. Report for the Green Group in the European Parliament, June 2018, http://extranet.greens-efa-service.eu/public/media/file/1/5625.
(5) In Greek law the term ›hotspot‹ is neither foreseen nor defined. Within ›hotspots‹ procedures of examining asylum and deporting persons are applied that are beyond any law (with EU money and the participation of EU agencies); ›topoi‹ in this sense refers to a non-place (Marc Augé): While a place offers people a space that empowers their identity, where they can meet other people with whom they share social references and regular law is applied, non-places, on the contrary, are not meeting spaces and do not build common references to a group; further, a non-place is a place we do not live in, in which the individual remains anonymous and lonely. The concept is contested but here it helps to clarify the situation on the islands; see: Marc Augé, Non-Places: An Introduction to Anthropology of Supermodernity. Le Seuil 1992; Michel de Certeau, The Practice of Everyday Life. Berkeley 1984.
(6) Cases T257/16 NM, T192/16 NF and T193/16 NG v. European Council, delivered on 28.2.2017, and Joined Cases C-208/17 P to C-210/17 P NF, NG, NM V. European Council, delivered on 12.9.2018 which dismissed the appeal against the former as manifestly inadmissible.
(7) ECHR, requête no 54796/16 J.B. contre la Grèce http://hudoc.echr.coe.int/eng?i=001-174322.
(8) Yiota Masouridou, Legal Opinion on the case law of the Greek Appeals Committees and Administrative Courts with regard to the application of the ›safe third country‹ concept (Pro Asyl/Refugee Support Aegean), 31.07.2019 (October 2019), online available at: https://bit.ly/2p8jSI1.
(9) https://www.access-info.org/article/27029.
(10) Cases T-851/16 and T-852/16, Access Info Europe v. European Commission delivered on 07.02.2018.
(11) European Ombudsman Decision in case 735/2017/MDC §§33-35, https://www.ombudsman.europa.eu/en/decision/en/98711.