When Greek judges decide whether Turkey is a Safe Third Country without caring too much for EU law
By Angeliki Tsiliou, former Research and Project Assistant of the Odysseus Academic Network
A few days after the two-year anniversary of the EU-Turkey statement, almost 1,500 people have been returned to Turkey on this basis. Although most returnees originate from countries other than Syria, the legal precedent for returns of Syrians from Greece to Turkey has been established. On 22 September, the Supreme Administrative Court of Greece decided (dec n° 2347/2017 and 2348/2017, available only in Greek) that Turkey qualifies as a safe third country for two Syrians. This conclusion comforts the EU-Turkey statement concluded in March 2016 on the presumption that Turkey qualifies as a safe third country to which asylum seekers can be returned and enjoy adequate protection in accordance with the Refugee Convention of 1951 and its 1967 Protocol. Numerous controversial discussions regarding the statement arose, on the one hand, over its nature, and on the other, on the question whether Turkey qualifies as a safe third country. So far, policy-makers are satisfied as the arriving migratory flows have significantly decreased, whereas the CJEU deems itself to lack jurisdiction to rule on the legality of the agreement by risking to contradict its historical case law on the external competences of the EU. The present analysis will focus on the safe third country notion, as interpreted through the Greek judges’ lens.
1. The Appeals Committees became supposedly ‘independent’
Under Greek Law, an asylum seeker has the right to appeal a first instance decision that rejects his application for international protection or grants subsidiary protection before the Appeal Committees, a practice that is in accordance with international obligations to provide for an effective remedy (Article 13 ECHR). However, according to Article 47 of the EU Charter of Fundamental Rights, the effective remedy can only be ‘safeguarded by a court or tribunal’, a principle also reflected in the (recast) Asylum Procedures Directive (Article 46 APD). In line with this provision, administrative courts can review the decision of the Committees.
The Appeals Committees initially regulated by Law 4375/2016 were composed of one representative of the Ministry of Interior, one human rights expert selected by the government from a list compiled by the National Commission on Human Rights and a representative from UNHCR. As it has been analysed elsewhere, under this composition, they issued several decisions on the admissibility of asylum applications, the vast majority of which found that Turkey did not qualify as a safe third country for Syrian nationals. Most predominantly, those decisions were based on arguments related to systematic violations of the non-refoulement principle and general detention practices. Following strong recommendations by the European Council and the European Commission to the Greek authorities, an amendment in the composition of the Committees was introduced under a fast-track legislative procedure. The new provisions established the Independent Appeals Committees, which are composed of two judges of the Administrative Courts and one representative of UNHCR or the National Commission on Human Rights, aiming to make them ‘more objective and independent’. Interestingly, these committees ruled – independently? – under their new composition that Turkey is a STC contrary to decisions of the previous committees and their decisions are apparently not published…
2. The Council of State decision (2347/2017) of 22 September 2017
Judging on an appeal of Decision 4159/2016 of 8 September 2016 taken by the Third Independent Appeals Committee, the Greek Council of State (CoS) ruled that the asylum application was indeed inadmissible on the basis of article 54 (L) 4375/2016. According to this provision, an application for international protection can be considered inadmissible if the authorities conclude that a third country qualifies as safe for the applicant. Pursuant to this finding, there was no need for the asylum application to be further examined on its merits. The Court found that the applicant failed to prove a particular threat for his life or freedom in Turkey as well as to prove that Turkey implemented a generalised detention policy.
The CoS examined whether Turkey is a safe third country for the applicant, taking into consideration that the country has ratified the Geneva Convention with a geographical reservation. In practice, this means that the obligations under the 1951 Refugee Convention are due only to refugees originating from States that are members of the Council of Europe. The CoS concluded that the Asylum Procedures Directive (APD) does not explicitly require that the third country concerned needs to operate a legal system that guarantees all the rights enshrined in the Geneva Convention. Rather, it can still be considered safe if refugees can receive in practice ‘equivalent’ protection to that envisaged in the Geneva Convention. In addition, the Appeals Committee’s decision was also upheld as far as the applicant’s link to Turkey is concerned, pursuant to Article 38 APD. The Court ruled that the required connection with Turkey due to his stay of over 1,5 month stay in the country is sufficient.
Twelve judges doubted that the interpretation of Art. 38 APD was clear, and therefore opined that it was necessary to submit a preliminary reference to the Court of Justice on its interpretation. They raised concern over the following issues: the requirement of ratification of the Geneva Convention without geographical restriction; the temporary character of the Turkish protection scheme which does not recognize a range of rights as foreseen in the Geneva Convention; the possibility to withdraw it by a decision of the Council of Ministers, (an executive authority)à, based on a non-individual assessment; the necessary connection of the applicant with the safe third country. However, a narrow majority of 13 judges over 12 held the opposite view and finally no preliminary reference was submitted to the CJEU.
Interestingly, two judges expressed a dissenting opinion on whether Turkey can be considered a safe third country. Their arguments were based mainly on three grounds:
- Turkey does not provide adequate protection in accordance with the Geneva Convention, as it has ratified it with a geographical limitation for non-Europeans and thus Syrian applicants cannot enjoy the rights associated with the refugee status.
- The decision of the Appeals Committee was largely based on an assessment of documents issued by the Turkish authorities following the coup d’état of 15.07.2016. Therefore, they emanate from an authoritative regime prevailing in Turkey and cannot be used as a credible tool of assessment.
- What is critical for a decision to be made is not just the protective legislative framework, but rather its de facto implementation in the country concerned. So, the Appeals Committee should also have resorted to other independent sources to decide on the actual implementation of the law in Turkey.
One judge formed a dissenting opinion particularly in relation to the degree of connection between the applicant and the safe third country, in casu Turkey. In contrast with the majority opinion, he held the view that the non-voluntary stay of the applicant only for 1,5 month in that country cannot create a sufficient connection between him and that third country required by article 38, §2, (a) APD. Interestingly, following the ruling of the Council of State, the Independent Appeals Committees elaborated further on the required connection between asylum applicants and a third country. They found in two decisions that the mere stay within a country does not in itself create a “sufficient connection” and considered that such a relation could be deduced from a person’s access to a supportive network or family/community ties, prior residence, visits for longer periods, studies or language and cultural bonds, but not only from a simple transit through that country.
3. Who is right?
Is Turkey actually in the position to provide refugees with the protection they are entitled to under International and European law?
Although Turkey is a party to the 1951 Refugee Convention and to its 1967 Protocol, it has only ratified it with a geographical reservation, restricting its applicability to refugees coming countries that are members of the Council of Europe. During the last three years, Turkey developed a migration and asylum regime on the basis of the Law on Foreigners and International Protection (LFIP) of 2013. On the basis of this legal framework the Temporary Protection Regime, focusing particularly on Syrian refugees has been adopted. It ensures that all Syrians in need of international protection are admitted to Turkey without being sent back to their country of origin, in accordance with the principle of non-refoulement, and that they are granted access to basic needs. However, it explicitly excludes their long-term integration in Turkey.
UNHCR, in its legal considerations on the returns of asylum-seekers and refugees from Greece to Turkey, highlighted that Article 38 (1) (e) APD implies that access to refugee status and to the rights of the 1951 Convention must be ensured in law as well as in practice. The protective legal framework exists, at least as far as Syrian asylum seekers are concerned, but is insufficiently implemented. Strong concerns have also been expressed regarding the procedural safeguards and legal remedies accessible to asylum seekers. Several international organisations and NGOs repetitively report incidents on push-backs and closed borders, detention, inhuman treatment, tortures or even forcible returns. Recent academic research and interviews of asylum seekers have documented this, indicating that there are risks of human rights violations subsequent to readmissions to Turkey.
The Supreme Administrative Court of Greece was essentially asked to rule upon the qualification of Turkey as a safe third country. In this vein, it concluded that the return of Syrian asylum seekers to Turkey would not violate international and European law. A different decision would have run the risk of jeopardising the implementation of the EU-Turkey statement by rendering some of its fundamental parameters inapplicable.
The case represented actually a great opportunity for receiving useful insights by the CJEU on the safe third country concept on which the European judges have not ruled so far. In addition, it could also have prompted the CJEU to comment on the meaning of Article 18 of the EU Charter of Fundamental Rights regarding the right to asylum in due respect to the Geneva Convention. With an extremely narrow majority, this opportunity was missed; one may dare to add this happened in violation of the obligation under article 267 TFEU of national courts against whose decisions there is no judicial remedy under national law to ask for a preliminary ruling. This is bad news for the effectiveness of EU law.