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Refugees along borders and violations in the Aegean Sea

Last Update 19.11.2017

Every state has the right to control its borders, maintain security and identify those who cross the borders, given sovereign entitlements. This is essential for public safety and security as well. However, this right is not absolute and unlimited. 

Taner Kılıç*

 refugeesLike in other fields where the state exercises its rights, the state's sovereignty is restricted by human rights law and international law. Human rights law restricts the state's sovereignty all the time and determines the boundaries of its sovereignty in this field; in addition, it prescribes some responsibilities in this field. Therefore, the act of crossing the borders of a given country is not considered a domestic matter of that country alone; it is also considered a matter of international law. For this reason, depending on the special circumstances applicable to the persons who cross the border, different legal disciplines, protection procedures or prosecution methods will be employed. To this end, it is not always proper to define a trespasser as an illegal migrant or to return her to her country of origin. The person could be an “irregular migrant,” a refugee, a smuggler, a criminal, a perpetrator of torture, a terrorist or a victim of human trafficking.

For this reason, the person's story should be first heard in the presence of an impartial and competent interpreter so that her story is fully comprehended. Subsequently, the relevant bodies should make a decision on the status of the person. It is important to have effective and fair administrative and judicial mechanisms ready in case of a negative decision. During this process, the person should be able to make sure that she has expressed her problem and raised her claim in a working administrative and judicial mechanism. And if this person is to be returned or departed based on a negative decision taken after a lengthy and fair legal process, deportation should be performed in a way that is consistent with human dignity and safety.

While states have the right to identify the legal status of those who cross their borders, if the relevant states have not developed a firm immigration policy based on human rights law, this means a huge legal void in this field. In case of such a void, the process of identifying the status of the trespasser is considered an unnecessarily bureaucratic endeavor by the state authorities. If there is no central actor or authority in a given country to take initiative or define a policy, those who enforce the rules look at the lack of policy in the relevant field and fill the void because real life does not accept voids. In this case, law enforcement units and officers tend to skip the legal regime and procedure which they consider to be a burden and red tape and rush to deport the trespassers. As a result, they may violate the human rights of these people.

At this point, it should be noted that readmission agreements appear as an important practice of international law in this field. A growing number of countries now rely on these instruments to get rid of the undesired aliens; in return, they grant privileges including tax and visa exemptions to the party agreeing to readmit these people. Turkey has made readmission agreements with some countries so far, but the one concluded with the EU deserves greater attention because of its content and scope.

Push-back incidents

A readmission agreement is by its nature an interstate relations matter that needs to be based on a legal framework. However, there is also the real-life practice of this matter along the borders which is not framed in legal terms. This illegal practice is called push-back. Even though this is a practice that is widely performed in the central Mediterranean region, the eastern Mediterranean also experiences similar acts of push-back. Frontex data from 2012 reveals that 10,380 people entered Europe through the central Mediterranean route during the Arab Spring, while 37,220 people used the eastern Mediterranean route to move from North Africa to Europe. Of course, people pay greater attention to this issue when there are deaths. However, it should be noted that the human rights of the migrants are violated on an extensive scale along borders, even when there are no fatalities.

During the fieldwork, my colleagues and I collected evidence and information from eyewitnesses and other relevant sources of systematic and extensive human rights violations along the Turkish-Greek border. A number of people who crossed Turkey to move to Greece, and then applied for a refugee status in that country, have been unofficially returned to Turkey, despite having the legal right to stay in Greece. The term “push-back,” which has been recently included in the terminology of migration, refers to a practice by which people who have entered a certain country are deported without a hearing of their individual applications or appeals and without relying on a legal mechanism or resorting to proper security measures. This practice, in most cases, endangers human life as they are mistreated and forced to leave during this process.

Based on narrations by some eyewitnesses of what can happen in this region, people who have reached or crossed the border face serious problems. Above all, their cellphones, cash and valuables are taken away from them and they are then forcibly returned to Turkish territorial waters. Sometimes, they are forced to board a simple boat; in some cases, the boat is deliberately harmed so that the migrants become aware that they have limited time to reach land. In some other cases, the engine of the boat is taken off and then the boat is left near Turkish territorial waters and the Turkish coast guard is informed about the boat. And sometimes, the migrants are taken to the international waters in a dinghy and are then forced to jump off near Turkish waters. These acts endanger human life. In particular, those who are unable to swim face serious challenges and threats on the sea, including death.

In this case, the persons who are subjected to push-back practices and violations are unable to resort to legal options and mechanisms. For this reason, the grave human rights violations along borders cannot be properly identified and documented. Most of the victims in these violations retry to enter Greece by relying on human traffickers; in every case, they take additional measures to minimize the risk of being caught by the security forces. Only a small portion of these people would never try this dangerous voyage again, and the security forces elevate the tone of the brutal force they exercise against illegal migrants so that they will not make similar attempts in the future. This vicious cycle is getting worse. Unfortunately, this administrative practice is performed all along the Aegean Sea and Thrace. Human Rights Watch (HRW) reported such incidents in its human rights report in 2008; similarly, Amnesty International in 2013 and 2014 and Pro Asyl in 2013 revealed frequent practices of push-back in their human rights reports.

Like every democratic state, Greece and other EU member states have criminalized push-back practices in their criminal codes. In other words, push-back is an illegal measure and act. The 1951 Geneva Convention, Article 19 of the European Union Charter of Fundamental Rights, Article 3 of the European Convention on Human Rights (ECHR) and two exclusive procedure directives prohibit unofficial deportation practices of this sort. Protocol 4 of the ECHR (particularly Article 4) is not ratified by Greece; however, it is obvious that Greece is still obligated to observe the content of this prohibition as it is also spelled out in the EU Charter of Fundamental Rights. Undoubtedly, the push-back practices and acts which in most cases involve the risk of death and inhumane treatment are considered criminal offenses under criminal law. However, the few applications filed on this matter have yielded no conclusive results; this indicates that the perpetrators enjoy impunity and that these practices are systematically performed by the administrative units. However, a number of people are unable access the protection international law prescribes for them because of these illegal practices and they are subjected to serious human rights violations. Because no national or international inspection or control is performed on this matter, the practices in this field remain untouched and unaddressed.

Currently, Turkey does not have a fair and effective international protection mechanism based on the international standards. There is no effective administrative, judicial or civilian inspection or control in Turkey's refugee procedure and legal framework. For this reason, Turkey is not considered by EU countries as a safe transit country in terms of refugee procedure and mechanisms.

In a number of decisions, the European Court of Human Rights (ECtHR) has ruled that Turkey has no effective administration, judicial inspection or control mechanism to combat push-back cases. This view is embedded in its case law. A number of people who crossed the Turkish border and who should be recognized as refugees under international refugee law fail to apply for this status because they believe that there is no fair and effective refugee mechanism in Turkey. Despite this, they file an application for this status, and some realize that the conditions under this scheme are unbearable. People who have been recognized by the UN High Commissioner for Refugees (UNHCR) as refugees but have not gone to a third country for a long time cannot bear living in Turkey due to the abject conditions. The dramatic increase in the number of refugees in Turkey in recent years complicates the whole situation as the already primitive refugee mechanism fails to meet the growing demands associated with the influx of Syrian refugees in recent years. The UNHCR in Turkey fails to meet the demands of the Syrian and Afghan asylum seekers in the country and also faces serious challenges in settling these people in third countries. It is also very difficult for interested parties to access to the refugee procedure. For all these reasons, Greece needs to end the push-back practices which my colleagues and I believe are systematically performed by its security and administrative forces, invoke administrative and judicial sanctions against the perpetrators of these acts and take proper measures so that similar acts and practices are not repeated.

* Taner Kılıç is an attorney-at-law with the İzmir Bar Association

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