ΒΡΙΣΚΕΣΤΕ ΕΔΩ: ΑΡΧΙΚΗ ΝΕΑ ΔΕΛΤΙΑ ΤΥΠΟΥ - ΑΝΑΚΟΙΝΩΣΕΙΣ Access to Protection: a Human Right

Access to Protection: a Human Right

 

 THE COUNTRY REPORT

OF GREECE 

 

General Introduction 

 

Access to protection presumes access to a safe territory.

 

Asylum is a physical place where the person in need of protection finds security and safety. However, how to reach a safe place? There are barriers, material and virtual borders. 

The situation of persons in need of protection has become more tangled since crossing European borders has been made more difficult, almost impossible, be- cause of the Schengen System which has erected an insurmountable wall around the external borders of the European Union.

The declared reason for erecting such a ”wall” is the political, economic, social necessity to hinder uncontrolled migration. 

As a matter of fact, from the point of view of international law, States are legiti- mated to determine who is allowed to enter their territories, exception made for their own citizens, who always have the right to return to their country. 

States may establish rules and conditions, for instance through the obligation of entry visas and requirements for the issuance of visas. 

Member States of the European Union, through the 2009 Schengen Visa Code, in continuity with the policy carried out over the last 20 years, have delegated EU institutions to establish those rules, sacrificing part of their national sovereignty. 

At the same time, States have adopted a wide range of measures in order to ensure that those rules are respected, as well as to prevent non authorised persons from crossing their borders. 

Such measures do not only concern the control of physical frontiers and the sur- veillance of territorial and international waters, but also interventions in third countries, those of origin or of transit of migrants and refugees, including the pro- vision of technical assistance at departure airports, seaports and maritime zones. Such an “externalization” system of controls has been developed, in particular, during last decade. 

The policy of contrasting irregular migration meets the restrictions placed by international and European law on the protection of refugees, in particular by the principle of non-refoulement, as well as by general human rights, in primis by the right of the person of not being exposed to the risk of torture, inhuman or degrading treatment or punishment. 

The obligation of a State to respect these rights may actually result in the obligation to admit people, at least temporarily, to its territory even when they do not meet the requirements for crossing its borders. 

The historical judgment of the European Court of Human Rights in the case Hir- si v. Italy, of February 2012, not only condemns Italy for having pushed back migrants, intercepted in the high seas, to Libya in 2009, also lists out guiding principles regarding control and surveillance of borders. These principles must be observed to ensure strict compliance with the rules laid down in the European Convention of Human Rights which the States adhered to. 

These principles have also found some resonance in the EU Recast Directive on the procedure for the recognition of international protection, adopted in June 2013 as well as in the amendment to the Regulation governing the European Agency Frontex and in the amendment to the Schengen Border Code. 

The primary objective of the project “Access to protection: a human right” is to assess how the principles established by the Strasbourg Court and the EU leg- islation are implemented in the six European Countries involved in the project, and to put forward recommendations based on the desk-research, the interviews with a wide range of stakeholders and the round tables organised in 2013 in the various Countries. 

With regard to methodology we consider important the fact that the project has facilitated and opened a dialogue between the authorities involved in border con- trol and rescue operations, international organisations and NGOs committed to the protection of refugees, migrants and human rights in general.

 

September 2013

Christopher Hein 

Description of the project

and methodology 

The main objective of the project “Access to Protection: a human right”, financed by the Network of European Foundations in the frame of the European Programme for Integration and Migration (EPIM), is to bring national and European policies and practices in line with the obligations set out by the European instruments on Human Rights and in particular by the Strasbourg Court in the Hirsi case, as far as the access to the territory and to protection is concerned. 

The Italian Council for Refugees (CIR), as leading agency, is implementing this project in collaboration with the Hungarian Helsinki Committee (Hungary), Pro- Asyl Foundation (Germany), The People for Change Foundation (Malta), the Greek Council for Refugees (Greece), and the Spanish Commission for Refugee Aid- CEAR (Spain). The Portuguese Council for Refugees (CPR), although is not a partner, has performed an analysis of the domestic legislation and the practice carried out from 2011. 

CIR and partner organizations benefitted from the valuable support of the UN- HCR, Bureau for Europe - Division International Protection, and of Commission for Migration, Refugees and Displaced Persons – Parliamentary Assembly of the Council of Europe in the implementation of the project activities. 

CIR has also received the legal advice of the lawyers Anton Giulio Lana and Andrea Saccucci of the Forensic Union for the Protection of Human Rights, who filed the complaint concerning the Hirsi case before the European Court of Human Rights. 

The project aims at reaching a “cultural change”, characterized by a shift from a vision mainly focused on security and on the contrast to irregular immigration f lows to an approach which can balance these exigencies with the respect of human rights, in particular the principle of non-refoulement and the access to protection, through the adoption, if it is necessary, of specific amendments to the national and European legislation and of guidelines and regulations (i. e. Frontex). 

The project intends to promote an enhancement of practices, in particular those relative to information and legal counselling services at the borders and to the control of frontiers. Moreover, the project has the purpose of fostering the full access of the UNHCR and other organizations to potential international protection seekers, and of promoting a systematic training on human rights and refugee law, addressed to authorities, in particular border guards. 

The project began in September 2012 and will end in February 2014. During this period of time, CIR and its partners have realized desk research activities and analysis of legislation and practices concerning border controls as well as the access to the national territory and to the asylum procedure in the respective countries. The outcomes of these activities and the recommendations have been inserted in national reports. 

The project “Access to Protection: a human right” foresees additionally a study at the European level about the compliance of the EU legal instruments, policies, practices and monitoring mechanisms with the obligations deriving from human rights and refugee-asylum law. 

This European report will be publicized through a Conference that will be held in February 2014, where will be invited policy makers, representatives of interna- tional organizations and NGOs, scholars and media. 

From a methodological point of view, the project envisaged a desk research on the national legislation and practices and the realization of interviews to institutional stakeholders, members of the Navy and other forces in charge of the control of maritime frontiers, the border guards, the international organizations and NGOs working in the field of asylum and migration, among them, those involved in the project Praesidium. 

In addition, round tables with institutional experts, representatives of the civil society, lawyers and scholars have been organized both in Italy and in partners’ countries with the aim of discussing about the main issues and criticalities con- cerning the control of irregular migration and the access to protection, and of identifying and highlighting the best practices in this field. 

Further relevant objective of these meetings is collect recommendations on im- provements to introduce to national legislation and practices in force. 

In every partner country has been published a report on the compliance of national legislation and practices with the principles set out in the ECtHR’s judgment on Hirsi case, presented during a Conference. 

The project began in September 2012 and will end in February 2014. During this period of time, CIR and its partners have realized desk research activities and analysis of legislation and practices concerning border controls as well as the access to the national territory and to the asylum procedure in the respective countries. The outcomes of these activities and the recommendations have been inserted in national reports. 

The project “Access to Protection: a human right” foresees additionally a study at the European level about the compliance of the EU legal instruments, policies, practices and monitoring mechanisms with the obligations deriving from human rights and refugee-asylum law. 

This European report will be publicized through a Conference that will be held in February 2014, where will be invited policy makers, representatives of interna- tional organizations and NGOs, scholars and media. 

Introduction to the

Greek report 

 

This report refers to the national legislation and the practices of the Greek Admin- istration regarding the border controls and the procedure of asylum in the borders, as well as the access to the asylum procedure in areas far from the borders, where Greece exercises its extrajudicial authority. The above have been studied under the light of the Hirsi Jamaa and others versus Italy decision, which has been resolved by the European Court of Human Rights, and the obligations which imposes such decision to the Members States. 

This report has been prepared in the frame of the Program “Access to Protection: a human right”, to which organizations from Greece, Italy, Spain, Malta, Hungary and Germany participate and has been funded by ΕPIM (European Program for Integration and Migration). 

The report is based on the Greek and international bibliography, on relative reports of international organizations and non-governmental organizations, as well as in- terviews with members of the academic community, the Coastguard, the Frontex, the Athens Office of UNHCR and lawyers of the Greek Council for Refugees. 

In order to understand the structure of this report, it is been clarified that this report includes: 1) the texts in the blue frames which include the basic principles deriving from the decision Hirsi,2) the “implementation” or “non implementa- tion”of these basic pronciples in Greece. 

 

Short overview of the

asylum procedure 

 

The asylum reform brought about by Law 3907/2011 created an Asylum Service and an Appeals Authority. However, due to delays in the establishment of the new Asylum Service, the asylum procedure remained in a ‘transitional phase’ regulated by Presidential Decree 114/2010. 

The set in motion of the Asylum Service on 7 June 2013 marked the end of the ‘transitional period’, following which all new applications for international pro- tection are governed by the new legal framework set out in Presidential Decree 113/2013. 

Accordingly, Greece currently operates a twofold regime for applications for in- ternational protection, whereby 

  • Applications lodged before 7 June 2013 fall within the scope of Presidential Decree 114/2010 (“old procedure”)  
  • Applications lodged after 7 June 2013 are covered by Presidential Decree 113/2013 (“new procedure”) 

The main change brought about by the new procedure relates to the competent authorities handling the asylum procedure, as applications for international pro- tection are examined by the Asylum Service rather than police authorities. A number of substantive changes to the asylum procedure are also brought about by Presidential Decree 113/2013. 

1.     Lodging and registration 

According to the new legal framework, applicants for international protection can lodge a claim before any Greek authority at entry points, at the border or in the territory, in written or oral form. 

2.  First instance procedures 

Greece applies the following types of procedures: regular procedure, accelerated procedure, border procedure, Dublin procedure; no provision is made for admis- sibility procedures. However, the scope of the above procedures differs somewhat depending on the applicable legal framework. 

For instance, under P. D. 114/2010, applications lodged at the border or in transit zones of ports or airports are examined under the accelerated procedure1. Accord- ingly, applicants enjoy the guarantees such as communication in a language they are reasonably expected to understand, legal assistance offered by UNCHR or other organisations, information about the asylum procedure, issuance of a special asylum seeker’s card (“pink card”) free of charge. 

However, if no decision on the asylum application is taken within 4 weeks, the applicant must be allowed to enter the territory of Greece in order for their appli- cation to be examined according to the regular asylum procedure. According to Article 24(3) P. D. 114/2010, in the event where the accelerated procedure cannot be practically applied at the border or in a transit zone of sea ports or airports, in particular due to the arrival of a large number of persons lodging applications for international protection, the accelerated procedure may be used in other locations that are in the proximity of the border or transit zone, where these persons are accommodated. 

Where an application of international protection is rejected in a border procedure and the enforcement of a return order is suspended pending judicial review before the Administrative Court of Appeals, the applicant is allowed to enter Greece without any passport control until a judgment on the appeal is taken by the Ad- ministrative Court of Appeals. The applicant is then obliged to present themselves as soon as possible to the authority territorially competent to examine asylum applications in order to state their place of residence and to have the “pink card” issued. However, establishing a place of residence in Greece is often a difficult criterion to fulfil. 

Furthermore, the reported lack of interpreters in police stations and the use of fellow-detainees as interpreters regularly results in inaccurate registration of per- sonal details, including age. Also, the lack of information on the possibility to apply for international protection, which constitutes a clear impediment to access to the procedure, has been reported at the border. 

Conversely, under P. D. 113/2013, applications at the border are now examined through the prioritised procedure. In that light, Presidential Decree 113/2013 brings about a welcomed improvement in the law by ensuring greater guarantees to applicants whose claim is examined at the border. 

On the other hand, P. D. 113/2013 has broadened the list of cases where the ac- celerated procedure is applicable. Accordingly, beyond manifestly unfounded ap- plications or cases where the applicant comes from a safe country of origin, the new legislative framework empowers Greek authorities to apply the accelerated procedure inter alia to applicants who present contradictory and implausible in- formation, who mislead the authorities by presenting false documents or withhold information pertaining to their nationality and identity or who destroy their documents in bad faith.  

3.  Appeals 

Both P. D. 114/2010 and P. D. 113/2013 provide for the possibility of a first instance administrative appeal before the Appeals Committee and a further judicial appeal before the Administrative Court of Appeals. 

Applicants for international protection have the right to an administrative appeal before the Appeals Committee against the following decisions: 

  • A rejection / withdrawal decision in the regular procedure (within 30 days) 
  • A decision rejecting as manifestly unfounded or as inadmissible their applica- tion for international protection in the accelerated procedure (within 15 days) 
  • A rejection decision in a border procedure (within 10 days) 
  • A decision rejecting a subsequent application for international protection during the preliminary examination stage of the procedure (within 15 days) 

In all the aforementioned cases, only the appeal before the Appeals Committee has automatic suspensive effect. The applicant and the Ministry of Citizen Protection have the right to apply for the annulment of the decision of the Appeals Commit- tee before the Administrative Court of Appeals ( judicial authority). The latter appeal has no automatic suspensive effect, however. Only by interim measures before the same court can the appellant demand the suspension of deportation orders. Furthermore, suspension of deportation orders lies at the discretion of the court. The appellant can also appeal against the Appeals Court decision by a writ of error before the Council of the State; yet this appeal does not have automatic suspensive effect either. 

The system of appeals against decisions taken in the border procedure does not differ from the appeal system in the regular procedure. However, lodging an appeal outside Athens meets various practical difficulties, including the refusal of border authorities to register appeal requests. Moreover, interpretation, legal advice or other forms of assistance are scarce at the borders. Only a handful of structures are periodically in place to provide such assistance, for instance under an EU-funded project or other NGO activities. 

National impact of the

Hirsi case 

Academic commentary on Hirsi Jamaa v Italy: 

Giannis Papageorgiou, “Hirsi Jamaa and al v. Italy, the protection of refugees in international waters” (2013) 2-3-4 To Syntagma 862-901 (in Greek) 

Costello, “Courting Access to Asylum in Europe: Supranational Jurisprudence

Explored” (2012) 12:2 Human Rights Law Review 287-339

 

Reports on Greece:

 

Amnesty international, “Greece: Frontier of Hope and Fear” (April 29th 2014)

http://www. amnesty. org/en/library/asset/EUR25/004/2014/en/705659ab-637b-

4940-b8d9-b448052f 2764/eur250042014en. pdf 

Amnesty International, “Frontier Europe: Human Rights Abuses on Greece’s Bor- der with Turkey” (2013)

http://www. amnesty. org/en/library/asset/EUR25/008/2013/en/d93b63ac-6c5d-

4d0d-bd9f-ce2774c84ce7/eur250082013en. pdf 

FIDH-Migreurop-REMDH, “Frontex. Entre Grèce et Turquie: La frontière du

Deni” (2014) 

http://www. migreurop. org/IMG/pdf/rapport_fr_grece_turquie_site-2. pdf 

Greek Council for Refugees & ProAsyl, “Human Cargo: Arbitrary readmissions from the Italian sea ports to Greece” (2012) 

http://www. proasyl. de/fileadmin/fm-dam/p_KAMPAGNEN/Flucht-ist-kein-Ver- brechen/humancargo_01. pdf 

Human Rights Watch, “Containment Plan. Bulgaria’s Pushbacks and Detention of Syrian and Other Asylum Seekers and Migrants” (2014) 

http://www. hrw. org/sites/default/files/reports/bulgaria0414_ForUpload_0. pdf 

Human Rights Watch, Turned Away. Summary Returns of Unaccompanied Migrant

Children and Adult Asylum Seekers from Italy to Greece (2013) 

http://www. hrw. org/sites/default/files/reports/italy0113ForUpload_0. pdf 

Human Rights Watch. Stuck in a Revolving Door. Iraqis and Other Asylum Seek- ers and Migrants at the Greece/Turkey. Entrance to the European Union (2008) 

http://www. hrw. org/sites/default/files/reports/greeceturkey1108web_0. pdf 

MEDU, Medici Per I Diritti Umani Unsafe Harbours. The readmissions to Greek from Italian ports and the violations of the migrant’s basic human rights (2013) 

http://www. mediciperidirittiumani. org/pdf/UNSAFE_HARBOURS_Summa- ry _2013. pdf 

Migreurop, The murderous borders of Europe (October 2009) 

http://www. migreurop. org/IMG/pdf/Rapport-Migreurop-nov2009-en-final. pdf 

Pro Asyl, ”Pushed back, Systematic human rights violations against refugees in the Aegean sea” (2013)

http://www. proasyl. de/fileadmin/fm-dam/l_EU_Fluechtlingspolitik/pushed_

back_web_01. pdf 

Pro Asyl and the the Greek Council for Refugees. Human Cargo. Arbitrary read- missions from the Italian sea ports to Greece (2012) 

http://www. proasyl. de/fileadmin/fm-dam/p_KAMPAGNEN/Flucht-ist-kein-Ver- brechen/humancargo_01. pdf 

Report from the Commission to the European Parliament and the Council, Fifth bi-annual report on the functioning of the Schengen area (1 November 2013 – 30 April 2014) 

ht t p://ec.   eu ropa.   eu /dgs/ home -af fai rs/e -libra r y/docu ments/policies/ bor- ders-and-visas/schengen/docs/f ifth_biannual_report_on_the_functioning _of_ the_schengen_area_en. pdf 

Report to the Government of Greece on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (from 19 to 27 January 2011) 

http://www. cpt. coe. int/documents/grc/2012-01-inf-eng. pdf 

UN Special Rapporteur on the Human Rights of Migrants, François Crépeau, “Regional Study: Management of the External Borders of the European Union and its Impact on the Human Rights of Migrants” (2013) A/HRC/23/46 

http://www. ohchr. org/Documents/HRBodies/HRCouncil/RegularSession/Ses- sion23/A. HRC. 23. 46_en. pdf

1.     Extra territorial jurisdiction of Article 1 of the Convention 

Extra territorial application of the ECHR in case of migrants/eventual asylum seekers intercepted in order to hand them over to the authorities of a third country. 

  • The Greek legislation and case-law does not foresee the extra territorial ap- plication of the ECHR in case of migrants intercepted at sea in order to hand them over to the authorities of a third country
  • The Hirsi case did not produce any change in the Greek legislation and case- law. 

2.  Prohibition of direct and indirect refoulement (chain deportation) 

Where substantial grounds indicate that a person, if deported, would face a real risk of being subjected to treatment contrary to Article 3 of the ECHR in the receiving country there is an obligation of States Parties to the ECHR not to send the individual to that country. 

The State carrying out the return has the obligation to ensure that the inter- mediary country offers sufficient guarantees to prevent the person concerned from being removed to his/her country of origin without an assessment of the risks faced, in particular If the intermediary country is not part to the Convention. 

  • The national legislation and in particular Law 3386/2005 which regulates entry and residence of third-country nationals in Greece, does not foresee any prohibition to send back a person in a country where he would face a real risk of being subjected to treatment contrary to Article 3 and/or violations of the principles of non-refoulement. 

However, Law 3907/2011 transposing the Returns Directive 2008/115/EC ex- pressly provides that return measures need be compatible with the principle of non-refoulement. 

  • The Greek judiciary has adopted well-established principles of European and international law related to direct/indirect refoulement which have been restated by the Greek Courts. These concern:

    —  Absolute nature of the principle of non-refoulement under Article 3 ECHR (Council of State, Suspension Committee, 551/2010)

    —  Subsidiary protection: Where return of a third-country national would amount to refoulement, the State is under duty to issue a residence title (Council of State 1241/2007

    —  Temporary protection: the temporary protection regime foreseen by Arti- cle 52 of P. D. 18/1989 provides sufficient protection against refoulement (Council of State, Suspension Committee, 143/2007, 334/2009)

  • There have been cases of direct refoulement. An incident of direct refoulement in which the Greek Council for Refugees was actively involved occurred in May 2013 and concerned a Turkish national named BY. On 20 May 2013, BY, a survivor of torture, sought assistance from the Greek Council for Refugees in his unsuccessful attempt to access the asylum procedure, as he faced sig- nificant impediments to submitting his claim at the Athens Police Department (Petrou Ralli). While efforts to submit his asylum application were underway, BY was kidnapped on 30 May 2013. 

Despite its interventions on the same day and on 31 May 2013 to inform the Greek police of the risks BY would run upon his return to Turkey, the Greek Council for Refugees was informed on 1 June 2013 that BY had been readmitted by Turkey and was detained in Istanbul. 

Strikingly, when confronted in relation to the issue, the Greek police attempted a contradictory and suspicious defence of its approach. On 2 June 2013, it denied having any official registration of BY’s asylum claim or any personal contact with BY. However, on 3 June 2013, it issued a second statement confirming the Greek Council for Refugees’ involvement in BY’s case. 

  • Although is complicated to establish with certainty if these aforementioned incidents of readmission/cooperation agreements were used as legal basis for the return of the aliens, there is ample evidence that the Greek-Turkish readmission agreement presents a number of risks for returnees and that these agreements do not include safeguards which ensuring basic human rights of person, in particular regarding the principle of non refoulement. In his recent report, the UN Special Rapporteur on the Human Rights of Migrants agrees that the Greek-Turkish readmission agreement ensures insufficient human rights guarantees for those returned.
  • There have been cases of indirect refoulement. A number of incidents of indirect refoulement of Syrian nationals at the Greek sea borders have been reported by Amnesty International in its recent report. 

UNHCR’s concerns in the context of a risk for indirect refoulement, have in the past been raised through UNHCR’s public positions on Greece (see, in particular “Observations on Greece as a country of asylum”, UNHCR, December 2009, avail- able at www. unhcr. org), as well as through formal interventions to the authorities. These concerns related primarily to first entry/border and return procedures that did not encompass adequate procedural safeguards for the identification of per- sons with international protection needs, as well as to long-term deficiencies of the Greek asylum system which did not ensure full and unobstructed access for asylum seekers. Additionally, cases of reported “push-back” (forced return under informal means) had been noted. 

Presently, UNHCR has received reports and testimonies of persons making ref- erence to informal forced returns (push-backs) or attempted informal returns to Turkey that may lead to indirect refoulement for the persons affected. UNHCR is trying to monitor and document such cases with a view to raising the issue with the Greek authorities and seeking their in effectively addressing (halting) such practices, if existing. 

After a summary document of human rights violations including incidents trans- mitted by Frontex to our request, it appears that the agency was informed about cases of collective expulsions (19 cases out of 27 reports. Frontex appoints unpro- cessed returns), problems of access to the procedure asylum, violence (a Greek officer allegedly pointed his gun at a migrant at the time of interception at the land border) or even of inhuman and degrading treatment (slapping). Despite these violations proven international law, the agency, through the Member States, con- tinues to provide logistical support to the Greek operations (experts, boats, planes, thermal cameras, etc.). 

According to the public declarations of Merchand Marine and Aegean Sea’s Min- istry, M. Miltiadis Varvitsiotis, “in the case where the boats are in the turkish side, the first step is to inform turkish authorities in order to receive them back. If they are in the greek side, we find a means to push them back to the turkish side”. The Minister adds, “we don’t tow (to Turkey), we prevent”; which means that the dissuasion takes place also in greek waters. 

According to the High Commission for Refugees in Athens the number of migrants detected in Evros’ terrestrial border passed from 16000 in 2012 to only 160 in 2013. In the turkish side, as the association HCA-RASP marks that 500 migrants detain- ees in Edirne detention center confirmed that they reached the Greek side before they are intercepted and sent back to Turkey. The comparison of those numbers reveals clearly that they have been pushed back after their arrival in Greece or at the moment of crossing the border. 

During Migreurop’s fieldwork, their delegation interviewed a group of fifteen Syrians. Everyone of them had been pushed back by the Greek coast guard trying to reach Greece. One of them had been detained on Samos island during some days and then sent back to Turkey, after he had been maltreated by the Greek Police. Three other persons mention that after crossing the Aegean Sea with their babies, they suffered the same abuses but also that the policemen stole their personal belongings and money.

  • Regarding the possibility of carrying out interception measures in territorial/ international/third-countries waters during the border control activities, ac- cording to the national legislation and/or administrative orders, we highlight the below:

Greece has transposed into national legislation the provisions of Directive

2008/115/EC “on common standards and procedures in Member States for return- ing illegally staying third-country nationals” with L. 3907/2011. The Articles 20, 21 refer to the obligation of the State to conform to the non-refoulement principle while art. 24 provides that the removal of a third-country national who is under return procedure is compulsorily postponed when it would violate the principle of non-refoulement. 

The UN Special Rapporteur on the Human Rights of Migrants argues that EU Member States externalise border controls through stepping up the Turkish coast- guard’s interception capacities.

  • It is not possible to identify nationals from specific countries as particularly exposed to the risk of direct/indirect refoulement. This can only be assessed on an individual basis. Any person forcibly returned can be exposed to the risk of direct (in case of direct deportation) or indirect refoulement (chain refoulement, through readmission or other indirect return procedures), if not sufficiently given the chance to seek international protection and receive a fair treatment, with all due procedural guarantees, during the examination of his/her claim.
  • Refoulement can only be substantiated on an individual basis. In the latter years, such substantiation has not taken place in connection to a particular case or cases, in the framework of interception and SAR operations at sea. However, UNHCR remains concerned over the “grey zone” of operation at sea border areas, and reports that refer to informal forced returns to Turkey, by the Greek Coast Guard, when having full jurisdiction over the persons concerned (Greek territorial waters or otherwise). 

According to the L. 3907/2011, removal procedures are subjected to a monitoring system that operates under the independent authority “the Greek Ombudsman”, which cooperates for this purpose with international organizations and NGOs. Within this framework, it is very important that the monitoring mechanism has competency over the whole scope of the return process, including the legitimacy of the removal, in the context of the national and international law. Moreover,this monitoring procedure should also concern removals of third country nationals on the basis of readmission agreements or on the basis of deportation decisions according to the L.3386/2005. Lastly, in order for the monitoring procedure to be effective, the Greek Ombudsman should be given adequate resources to fulfill this duty.  

3.  Positive duty of the State to find out about the treatment to which the applicants would be exposed after their return 

When removing an alien the State has a duty to find out about the treatment to which the aliens would be exposed after their return. In this sense the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights are not in themselves sufficient. At the same time the State cannot evade its own responsibility by relying on its obligations to comply with international agreements.

  • The procedure of identification of aliens at the borders and/or in territorial waters and high sea has been set out by numerous regulations, as the below: 

Greece has transposed the United Nations Convention on the Law of the Sea with the L. 2321/1995, the International Convention on Maritime Search and Rescue (SAR) with the P. D. 201/2000 and the International Convention for the Safety of Life at Sea (SOLAS) with the P. D. 199/2005. Furthermore, according to the art.

13 of L. 3907/2011, third-country nationals who are arrested while entering the country illegally shall be directly taken, under the responsibility of the authority that conducted the arrest, to a First Reception Centre or Unit for the purposes of identification and other first reception procedures. Regarding identification car- ried out on board, to UNHCR’s knowledge this has taken place only in cases of stowaways, where the competent authorities will allow disembarkation of stowa- ways if they explicitly state their wish to claim asylum. In other occasions, namely interception or sea border control procedures, UNHCR has not documented cases where identification was carried out at sea (on board); in such instances, either the persons were not allowed access to territory, or where (often following rescue operations) brought to land territory and referred to available structures. 

Greece relies substantially on the assistance provided by FRONTEX in the context of Joint Operation Poseidon Sea at the maritime borders with Turkey. However, as Amnesty International states in its recent report, FRONTEX has deployed only one screener to interview persons apprehended while entering Greece through the island of Lesvos. 

Amnesty  cor rectly  notes  that  FRONTEX  provides  ver y  little  infor mation on its role at the Greek border; for instance, no thorough information on its practices  is  provided  in  the  agency’s  lengthy  Annual  Risk  Analysis  2013.

  • National legislation does not foresee the duty to find out the treatment to Amnesty International (2013), p. 7 which the persons would be exposed after their return (this duty may include also specific safeguards for certain nation- al, ethnic/etc. groups), not as a general duty/provision. 

The L. 3907/2011 (Art. 25) requires in particular for the treatment of unaccom- panied children, that the best interest of the child should be taken into care, and that children should be returned only if adequate protection (namely, return in the framework of family reunification or to appropriate reception structures) is in place at the country of origin. 

A person not formally registered as an asylum seeker, is in practice not protected from removal proceedings (this meaning, the mere statement does not incur im- mediate obligations for the Greek State, although the law (PD 113/2013) mentions in Art 2 (d) that asylum seeker is any person who declares “verbally or in writing”, against any public authority, [. . ] his/her wish to seek asylum or subsidiary protec- tion, or by any means asks that he/she is not deported to a particular country in fear of persecution). Regarding the First Reception Center, the third country nationals are informed about their rights and obligations, including as asylum seekers, in a more institutionalized framework, however, again, they are considered as asylum seekers only if they formally apply for international protection and their claim is registered. Recently, upon political decision of the Greek government, Syrians are given automatic postponement of their deportation, irrespective of whether they file an asylum claim or not. 

  • Regarding the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights and the consideration of the existence –or not- of such instruments, according to the Greek authori- ties, there are some countries where they do not forcibly remove anyone (e. g. Somalia, Syria, Mali, etc). 
  • According to the national legislation, an asylum seeker in order to be consid- ered as an asylum seeker does not have to explicitly request for international protection. On the contrary it is considered enough for him/her to express fear of suffering serious harm if s(he) is returned to his/her country of origin. 

According to P. D. 114/2010 and P. D. 113/2013, an expression of fear of suffering serious harm within the meaning of the Qualification Directive suffices for a person to be considered an applicant for international protection. 

4.   Article 4 of Protocol No. 4  

4. 1 Extraterritorial application of Article 4 of Protocol No. 4 ECHR 

The notion of expulsion is also principally territorial, in the sense that expul- sions are most often conducted from national territory. However when the Court finds that a Contracting State has, exceptionally, exercised its jurisdic- tion outside its national territory, also violation of article 4 of protocol 4 can take place.

  • The national legislation and case-law does not foresee the extra territorial application of article 4 of protocol 4.
  • The Hirsi case has not produced so far any change in your legislation and case-law. 

4. 2 Prohibition of collective expulsion 

When transferring aliens to another country the State has duty to ensure that the individual circumstances of each of the individuals concerned are the subject of a detailed examination. 

  • The national legislation and case law does not foresee a prohibition of col- lective expulsion. Consequently no legal guarantees apply in this case (e. g. obligation to carry out an identification procedure and detailed examination of the case; to issue a decision based on the individual case, etc).
  • The protocol 4 of the ECHR was not signed, neither ratified by the Greek government. As a consequence the article forbidding the collective expulsion cannot apply in Greece. Greece cannot be condemned but the ECHR on the basis of this protocol.
  • Therefore this duty is not respected in practice. In particular we do have a series of testimonies regarding the occurrence of such practices. 

Amnesty International reports on average 1 push-back per week and states: 

The alarming number of testimonies collected by Amnesty International alleging collective expulsion suggests that these practices are regularly employed by Greek border guards and coastguards. In April 2013, the UN Refugee Agency, UNHCR, in Greece also reported that “[s]ome testimonies of Syrians received by UNHCR make reference to informal forced returns (push-backs) or attempted informal returns to Turkey.” In response to a query by Amnesty International, Frontex also wrote on 6 June 2013 that since 2012, Frontex Headquarters had received 18 reports of alleged violations of fundamental rights which included “unofficial returns (“push-backs”) involving groups of migrants (up to ten people) or single individuals that had allegedly been returned to Turkey by the Hellenic Police.” Frontex informed Amnesty International that it had raised such allegations with the Greek authorities in writing on three separate occasions and received a re- sponse denying that such push-backs had taken place 

All those who claimed to be pushed back in this way reported that they were never given an opportunity to explain their situation or challenge their deportation. This is a breach of Greece’s international and regional obligations - most importantly the non-refoulement obligation as well as Greece’s domestic law. It also risks the lives and well-being of the people sent back either as a result of the manner in which they are sent back or by putting them at risk of being further sent back to a country where they may face persecution or other harm (indirect refoulement) once they are in Turkey (amnesty-report-frontier-europe-greece-report- July 2013). 

Furthermore, there have been reports on incidents occurring in 2012 involving Syrian nationals apprehended in Greek waters and collectively returned to Tur- key without any prior individual examination; under Hirsi, such practice triggers Article 4 Protocol 4. As reported in the Guardian, “The officers put people in small plastic boats, which they tied to larger, motorised boats, and returned them to Turkish territory”. 

According to the report of PROASYL, has been established that illegal push- backs from Greek sea and land borders occur systematically. While trying to enter Greece by using the sea way, 149 people have lost their lives-mostly Syrian and Afghan refugees, since August 2012. Although Greece has been accused of such blatant human rights violations before, the brutality and the extent of violations found in this report are shocking. Masked Special Forces officers are accused of ill-treating refugees upon apprehension, detaining them arbitrarily without any registration on Greek soil and then deporting them back to Turkey, in breach of international law. In fact, there are “grey” zones where refugees are detained out- side any formal procedure; in practice these refugees don’t exist. Greek Special Forces of the Coastguard abandon often the refugees to Turkish waters without any concern for their safety. All the reported push-backs have occurred in the Greek waters, the Greek islands and land borders. The majority of the victims are refugees from Syria – men, women, children, babies, and people suffering from severe illness. While the EU publicly repeats its commitment to stand by Syrian refugees, their fundamental human rights are being ignored and violated at the European border. 

More specifically, in the EU’s external southeastern frontier between Turkey and Greece is more than 2. 200 km long. In 2012, it saw the largest number of irregular entries to the EU out of all the EU’s external borders, while in 2013 numbers of detections dropped significantly. 3According to the Hellenic Police, during the first nine months of 2013, 8. 052 persons were arrested for crossing the sea bor- ders and 764 persons for crossing land borders (compared to the same period of 2012: 1,329 in the Aegean Sea and 30,143 in Evros). PRO ASYL research included interviews with men, women, children and vulnerable groups of people (such as unaccompanied minors, sick and elderly people) from Syria, Afghanistan, Somalia and Eritrea – persons prima facie in need of international protection - who have allegedly been pushed back to Turkey from the Greek/European territory (from the Aegean Sea and the Evros region). 

As FIDH/Migreurop/REMDH’s report cites, the authorities statistics’ about acci- dents in sea, present a constant increase: from september 2012 to mai 2014, at least 18 wrecks have been deducted, 191 dead and 33 missing persons. 

The findings of the above research have shown the following: 

—  Push-backs as described indicate a systematic and collective practice car- ried out by the Greek authorities at an increasing rate. 

—  Refugees are pushed back to Turkey: a) from the Greek territorial waters b) from the Greek islands c) from Farmakonisi military island after being detained incommunicado, d) after a distress alert is launched, e) in Evros area at the land border directly after their arrival on Greek territory via the Evros River, either in the forest where they are trying to hide or while walking in the streets of the first village they reached in the area. 

—  Many of those affected, are Syrian refugees trying to enter Europe to seek international protection and to reunite with their families that live in various European countries. 

—  In many cases, either on coast guard boats, provisory on islands or in infor- mal detention places in Evros, refugees were arbitrarily detained for some hours, without being officially registered, without access to the outside world and without any food and water offered. 

—  In the Aegean, in almost all cases, the officers involved in the push-back operations wore “black uniforms, carried guns and wore full face-covering masks”. In other cases, officers were “wearing blue uniforms’’. In Evros they were described either as wearing blue, military green or dark green uniforms, accompanied by some people in plainclothes, and others wearing full face masks. 

—  Many of the interviewees claimed that their personal belongings (mobiles, money) were arbitrarily taken away and not given back. Many Syrians alleged that they also have had their documents taken away. 

—  All of the interviewees stressed to PRO ASYL, that they were not heard by the Greek authorities, that they were not afforded an opportunity to either ask for international protection or to challenge their removal back to Turkey. Even in those cases, where refugees told PRO ASYL that they had explicitly requested international protection and/or not to be removed because they were refugees f leeing war, their pleas were in vain. 

—  The majority of the interviewees claimed that they had been ill-treated. In the cases of those who were pushed back from the island of Farmakonisi, the severity of the reported ill-treatment towards nine male Syrian refugees could amount to torture. 

—  In an Amnesty International report of 2014 an incident is reported in which a member of the Greek coastguard opened fire on a boat filled with ref- ugees - among them wounded from the Syrian war, women and children

– when they tried to reach the Island of Oinousses. Three of the refugees were wounded by bullets and had to be hospitalized for more than a week. The refugees claimed they had all raised their hands after having been stopped and pointed at with guns by the coastguards. 

—  Other testimonies of the same report include cases of:

  • The usage of a Taser (electric weapon) against a refugee.
  • Humiliating searching procedures – such as the forced stripping of clothes.
  • Heavy beating leading to the loss of consciousness.
  • Heavy beating of vulnerable persons, in particular, pregnant women. 

—  Three push-back incidents concerning Farmakonisi (an uninhabited island, except for a military unit) were reported, involving dozens of refugees from Syria, claiming to have been apprehended by Greek coastguards either just off the coast of the island, or after their arrival on the island. The refugees report that they were detained incommunicado and deprived of any rights for periods ranging from 16 hours to three days, before being pushed back and left adrift in Turkish waters. 

—  Amnesty International has also brought forward the case of a failed push- back near the Island Farmakonisi on the 20th of January 2014, in which a vessel with refugee sank after the Greek coastguard decided to pull it back into Turkish seawater. Attached to the boat of coastguard with a rope the vessel of the refugees filled with water during the towing process. Accord- ing to statements of refugees coastguards tried to prevent refugees from climbing on the vessel of coastguard and started beating and threatening them afterwards. The incident caused the death of 12 people, 8 of them children.  

—  Push-back operations (from the sea and land borders) in the way they are carried out as described by refugees, put their lives at risk. People ex- pressed that they were terrified, as they could not protect their lives and dignity, nor did they know what exactly would happen to them. 

—  Aliens reported being forced and even threatened with guns and gun shots in the air to return to Turkish waters. 

—  In the majority of cases, the pushed back refugees claim to have been left in life threatening situations upon being pushed back in the Aegean when left adrift in unseaworthy boats or being thrown in the water of river Evros. 

—  With regards to the pushback operations from the Aegean Sea, some ref- ugees alleged that even though, they had dialled the emergency number to launch a distress alert, when they were later on located by the Greek authorities, they were pushed back. 

—  Once pushed back to Turkey, refugees were allegedly arrested and detained under degrading detention conditions. Some of them faced the risk to be deported to their countries of origin, without being offered the chance to seek international protection (among them Afghans, Iranians and Iraqis who are in risk of chain refoulement). 

—  During their stay in Turkey they faced the lack of an effective refugees’ protection system, were subjected to deploring living conditions and were exposed to a series of other human rights violations as Turkey is not con- sidered a safe country for refugees. 

—  Most of the interviewees, tried to enter into European territory more than once, after having been pushed back and were therefore exposed to further risks. In one case reported to PRO ASYL, an Eritrean refugee who was pushed back from the Evros region and then tried to cross the borders from the sea is missing since the Canakkale shipwreck (Pushed back-Systematic human rights violation against refugees in the Aegean sea and at the Greek Turkish land border-PROASYL Report) 

Also some detainees declared that they have tried several times to enter Greece via Samos from Turkey but they have been pushed back again towards the Turkish coastline, regardless the presence of women and children on the boats. In some of the attempts, the Greek Coast guard has interrogated them on their vessel about how they have arrived in Greece and afterwards, they have been pushed again towards Turkey (http://www. gcr. gr/index. php/el/publications-media/activity-re- ports/item/338-samos-ioylios-2011). 

Furthermore, the Greek Coastguard has mentioned that there are cases, in which the Hellenic coast authorities have entered the Turkish seawaters in order to push back boats with aliens, with the collaboration and acknowledge of the Turkish authorities which apprehend them and turn them back to the Turkish coasts. 

Amnesty International states that Greek authorities usually deny any push-back activity or play down the cases of mistreatment of immigrants in the border re- gion as “isolated” actions aiming at “deterring” refugees from entering Greek territory.  

Upon relevant question to the European Parliament on the 11th November 2013, regarding the reporting of human rights violations by the Greek authorities, the possibility for FRONTEX to suspend its mission in the borders between Turkey and Greece, the suspension or termination of such mission, the opening of in- fringement procedures against Greece, the Parliament’ s response was positive regarding the further investigation of these allegations, which in any case have been reported by FRONTEX (http://www. europarl. europa. eu/sides/getDoc. do?- type=WQ&reference=P-2013-012766&format=XML&language=EN). 

Close cooperation between Greek and Turkish authorities at the land border has been in place since summer 2012. Coupled with electronic surveillance of the border, deployment of patrol boats on the river Evros and completion of the bor- der fence, this has led to a significant reduction of migrants crossing the Evros border (over 90 per cent since August 2012, according to Greek authorities). Most of the migrants who try to cross this border are now apprehended on the Turkish side. A decrease in apprehensions on the Turkish side of the border since October 2012 indicates that the migration f low towards the Greek-Turkish land border has diminished. 

A readmission protocol between Greece and Turkey was signed in 2002. The Special Rapporteur on Human Rights, Francois Crepeau has recently expressed his worries that this agreement focuses almost exclusively on combatting “illegal” migration. While it “does not affect the rights and obligations arising from other international agreements binding upon the Parties”, it does not provide any specif- ic guarantees for respecting the human rights of migrants, such as non-refoulement or the principle of the best interests of the child. Given the obstacles to access asylum procedures and to identify other vulnerable groups such as unaccompanied children, victims of trafficking and victims of torture in Greece, there is a serious risk that persons returned under the readmission agreement with Turkey might indeed be in need of protection. 

The Special Rapporteur notes that the number of migrants returned to Turkey under the bilateral agreement is low, and that Greece expects that it will be able to readmit more migrants once the EU-Turkey readmission agreement enters into force. 

The Special Rapporteur strongly urges Greece to fully respect its human rights ob- ligations in relation to all its readmission agreements, including the Greece-Italy, Greece-Turkey and EU-Turkey agreements. The non-refoulement principle must always be respected for all migrants proposed for readmission, according to Fran- cois Crepeau (Report of the Special Rapporteur on the human rights of migrants, François Crépeau on his mission to Greece, 25 November to 3 December 2012).

The collective push backs of foreign nationals in the Greek borders and the Hel- lenic Coast Guard practices of ill-treatment had also caught the attention of Nils Muižnieks, the Counsil of Europe’ s Commissioner of Human Rights, who actually wrote to the Greek Ministers of Public Order and Citizen Protection, Nikolaos Dendias and of Shipping and the Aegean, Miltiadis Varvitsiotis last December, to express his worries about the large number of reported systematic expulsions by Greece of migrants, and to point out his view that “Greece has to radically change its migration policy and practice”. 

In his letter to the Greek Ministers, the Commissioner underlined that although his last visit in Greece has been satisfactory, since the adoption of legislative measures aimed at enhancing human rights protection has been established, such as Ministe- rial Decision N. 92490 which guarantees the medical care of irregular migrants, in initial reception centers, recent reports by expert refugee organizations seriously concern him. Nils Muižnieks referred to the abovementioned PROASYL report on push backs by the Greek border authorities, according to which 2000 immigrants, including Syrian refugees, who are considered as prioritized receivers of inter- national protection, have been illegally pushed back to Turkey, from December 2011 to August 2013. Also, the Commissioner stated that ill treatment of the illegal migrants and confiscation of their personal belongings by the Greek authorities in the borders, have been widely occurred, while his letter underlines that collective expulsion of foreign nationals is a violation of the Article 4, Protocol n. 4 to the European Convention on Human Rights, which dates from 1963 and is not as yet acceded to by Greece. 

Publishing the letter on the 10th January 2014, the Commissioner for Human Rights stated: “The large number of reported collective expulsions by Greece of migrants, including a large number of Syrians f leeing war violence, and al- legations of ill-treatment of migrants by members of the coast guard and of the border police raise serious human rights concerns”, while he pointed out that this kind of behavior is a violation of the fundamental principle of non-refoulement, established by the art. 33 UN Refugee Convention, by which Greece is bound.  

“I call on the Greek authorities to carry out effective investigations into all re- corded incidents and take all necessary measures in order to end and prevent recurrence of such practices.” 

He also added that “to uphold its human rights obligations, Greece has to radically change its migration policy and practice. This is all the more necessary now that Greece has taken on additional responsibilities by holding the Presidency of the Council of the European Union”. 

The Greek Minister of Public Order and Citizen Protection, Mr. Dendias, in his official reply to the Commissioner stated that “With reference to your letter dated 5 December and with regard to the recent reports (PRO-ASYL, Amnesty Inter- national as well as Media reports) concerning allegations for un-proceed returns to Turkey through the Evros river (“push-backs”) and ill-treatment of intercepted of illegal migrants, I would like to inform you that every such case is being thor- oughly investigated by the Hellenic Police and if necessary by the Judicial Author- ities. Upon completion of the ongoing investigation and in case that substantial evidence occurs, appropriate penal and disciplinary measures will be imposed. Moreover the outcome of this investigation will be communicated to you at the earliest convenience”. 

The Minister also outlined that the readmission to the neighboring Turkey is being implemented according to the Readmission Protocol between Greece and Turkey (http://www. humanrightseurope. org/2014/01/nils-muiznieks-greece-must-end- collective-expulsions/). 

Moreover, since March 2013, Amnesty International has spoken to nearly 30 peo- ple in Greece and Turkey who, in at least 39 separate instances, have been stopped trying to cross the Aegean or the northern land border between the two countries along the river Evros. 

Almost all of them described how they had experienced or witnessed violence and/ or other ill-treatment by the Greek authorities. Many said guards had taken their be- longings, including money, family photos and heirlooms, and in some cases thrown them into the sea (http://www. amnesty. org/en/library/info/EUR25/008/2013/en). 

Migreurop’s report denounces that many migrants witnesses attest the presence of greek special forces during deportations. These forces are armed and trained to interfere in case of terrorism, armed robbery and organized crime. Testimo- nies confirm to have been subjected to violent practices putting migrants’ lives in danger. 

Interviewed by Migreurop, the coast-guard delegate renounced special forces’ presence during sea operations against illegal immigration. That would be the proof of greek authorities’ will to resort to intimidating and illegal practices through opaque military means.  

“What’s happening along the Greek border does not just shame Greece. It shames the European Union as a whole,” said Jezerca Tigani, Amnesty International’s Deputy Director for Europe and Central Asia. 

“The number of push back stories we collected is extremely alarming. It suggests that the Greek authorities are employing this practice on a regular basis, despite the fact that it is unlawful. And it is also extremely dangerous - to the point where it puts people’s lives seriously at risk.” 

Testimonies collected by Amnesty point to the blatant disregard for human life shown by the Greek coastguard during these operations carried out in the Aegean Sea. Thirteen of the 14 interviewees who described being returned to Turkey said how their inf latable boats were rammed, knifed, or nearly capsized while they were being towed or circled by a Greek coastguard boat. They said their boats’ engines were disabled and the oars removed, then they were just left in the middle of the sea. Life-endangering practices were also reported by people caught after crossing the river Evros. 

The route across the Aegean has become more popular since last year when au- thorities built a 10. 5 kilometer fence and deployed nearly 2,000 new border guards along the border at the river Evros. But it is a dangerous one. As well as the threat of push backs, since August last year more than 100 people – including women and children and mostly Syrians and Afghans - have drowned trying to reach Greece. 

“As the weather gets better and conf licts in Syria, Afghanistan, Iraq and Somalia continue, we expect more people to attempt the journey and we are likely to see more tragedies like these,” said Jezerca Tigani. 

Those who do make it to Greece are routinely detained in dark, dirty cells for long periods. Many of the people Amnesty spoke to had spent nearly nine months behind bars. Health problems are rife. 

“The conditions refugees and migrants are being held in are often appalling. In fact, when we visited people in those cells it was difficult to remember we were actually in the EU. Many of them are f leeing conf lict, poverty and hunger but too often they are being held in dark, dirty, damp cells, with limited access to fresh air and not enough food,” said Jezerca Tigani. 

“Some detainees told us they had to call the police when they needed to use the toilet as there were no toilets in their cells. They said their calls were often not answered for hours so they had to urinate in bottles. Others said their bedding had not been washed for months, and that they had limited access to soap, shampoo or sanitary towels,” she added. 

Amnesty International is calling on the Greek authorities to stop push backs im- mediately and investigate allegations of collective expulsions and ill-treatment, and to prosecute those involved. It wants all those intercepted trying to cross borders to have their cases for international protection heard fairly. It wants the Greek authorities to end the indiscriminate and prolonged detention of irregular migrants and asylum-seekers; and use alternatives to detention. 

In a letter of 5th March 2014, Frontex respond to Migreurop’s demand concerning the number of intercepted migrants in greek-turkish sea border: this number tripled between 2012 and 2013 (3. 007 persons in 2012 and 10. 427 in 2013). These inter- ceptions aim a majority of persons who are potentially asylum seekers, constantly increasing throughout the years (Syrians: 1. 349 in 2012, 3. 471 in 2013, Afghans (1. 349 in 2012, 3. 471 in 2013), Somalians (54 in 2012, 416 in 2013).

The EU has a role to play too. It must support the Greek authorities by helping to improve reception services instead of sealing off borders. The EU should also explore new ways of sharing responsibility for refugees and migrants. 

“It is obviously Greece’s prerogative to control its borders, but not at the expense of the human rights of those trying to reach safety, or looking for a better life, in Europe. These are difficult times in Greece, and for millions across Europe, but there is no excuse for how refugees and migrants are being treated,” said Jezerca Tigani. 

“Other EU Member States appear to be only too happy for Greece to act as their gatekeeper. But the policies and practices along the Greek border expose the bitter irony of European countries pressing for peace abroad while denying asylum to and putting at risk the lives of those seeking refuge in Europe. The EU must act now to stop these human rights violations at its borders,” she said (http://www. amnesty. org/en/news/greek-authorities-put-lives-danger-pushing-refugees-and- migrants-back-turkey-2013-07-09).

  •  There are no nationals of specific countries more exposed than others to the risk of collective expulsion as already mentioned above 

Push-Backs

at the Bulgarian-Turkish border 

 

Even though no Bulgarian Organization participated in the rendering of the report at hand, the Greek Council for Refugees regards it as its obligation to also shed light on some cases of Human rights violations at the Bulgarian-Turkish border, since the events occurring in this region are still mostly out of sight  of EU offi- cials and international Human Rights institutions and occur in direct vicinity of the Greek-Turkish border. 

A Human Rights Watch Report of April 2014 documents overall 44 Push-backs involving at least 519 people conducted by Bulgarian Police forces at the Bulgari- an-Turkish Border. The push-backs recorded occurred before the implementation of the so called “containment plan” in November 2013, specific policy comprising the employment of additional 1. 500 Bulgarian police units and EU-guards and the construction of a fence at the border to Turkey in order to forcibly prevent Migrants from entering the Bulgarian territory. Testimonies of the push-backs describe acts of intimidation with aggressive dogs, threats and heavy beatings of men and women alike by Bulgarian police forces and the cooperation of Turkish and Bulgarian forces in push-back operations. It is also likely that Syrians have been among those being forcibly returned to Turkey, since more than half of the asylum applicants in 2013 in Bulgaria were of Syrian origin. Furthermore a report by the European Parliament and Council mentions that a Greek-Bulgarian border checkpoint is being checked for having breached provisions of the Schen- gen Code. In Addition to this Pro Asyl, a NGO from Germany, is demanding a deportation-stop to Bulgaria due to the threat of refugees being exposed to inhumane living conditions and treatment by police upon arrival in Bulgaria.

The practices at hand clearly prevent migrants from legally claiming asylum in Bulgaria and Europe and are not compatible with international Humanitarian and the European guideline for Asylum procedures. 

 

The Readmission Agreement with Turkey 

 

Already in December 2013 the EU and Turkey signed an Agreement regarding visa regulations and the readmission of irregular migrants, which was approved in February 2014 and is now awaiting gradual implementation. The readmission agreement obliges the signatories to take back immigrants having irregularly en- tered the territory through the partner entity’s territory. 30 The readmission agree- ment will presumably cause a relief for the Greek asylum system, since almost all irregular entries into Greece occur through the border with Turkey. Nonetheless the European Council for Refugees and Exiles (ECRE) maintains deep concerns about appropriate asylum procedures, subsidiary protection and the accommoda- tion facilities for refugees and in Turkey. These concerns are sustained by state- ments of Turkish Foreign Minister Ahmet Davutoğlu to the Hürriyet Newspaper to accept most irregular Migrants being sent back to Turkey only temporarily before deporting them to their countries of origin. Mr. Davutoğlu also expressed intentions to step up the patrol of its border in order to prevent migrants, especially from Syria, from entering the Turkish territory. The GCR finds it lamentable that with the new Agreement the door for chain-refoulement will be opened. 

With regard to the enormous death toll of people dying on the attempt to reach Greece through the Mediterranean sea in malfunctioning and overcrowded ves- sels, informal readmissions and unlawful Push-Backs between Turkey and Greece need to stop. The readmission agreement does not guarantee realistic opportunities for filing an asylum claim and seeking protection under international law. In consequence it is likely that even more people will try to reach Greek soil illegally through the perilous and life-threatening path of the Mediterranean Sea. The drowning of a boat with about 65 persons on board leaving at least 22 people dead in proximity of Samos Island in May 2014 is only the most recent evidence of such dramatic developments. 

The readmission Agreement with Turkey denial of the Human rights access to protection: 

It is important to underline the detention conditions that the immigrants are facing when they are pushed back in Turkey or when they will be legally readmitted. 

According to several testimonies, conditions are particularly bad as the overpop- ulation is ordinary. The organization Human Rights Watch  (HRW), that visited Tunca camp in June 2008 counted more than 700 inmates when the capacity is of 200. 

More than that, immigrants are notifying the lack or air, lack of blankets and beds, the bad hygiene is bringing skin disease, and there is no drinkable water and very little food per day. 

In the Kirklareli detention center at the terrestrial border with Greece, Migreurop reports that the immigrants do not have the right to access to a legal aid neither to an interpret. The Asylum seekers’ requests are then treated randomly according to the desire of the police. 

Once the immigrants are sent back in Turkey they are detained and then to facili- tate the expulsions, Turkey signed some readmission agreement with the countries of origins. Agreements are signed with Syria, Ukraine, Romania, Kirghizstan, and Afghanistan. Because of the important cost of the expulsion the Turkish ‘gov- ernment is asking to the immigrants to pay their return, Detention are a mean of coercion to push the inmates to pay in order to be sent back in their countries. 

Iran, and Iraq are neighbors to Turkey and the expulsion are chipper and easier (by bus) for the Turkish authorities. HRW in his report describe that the immi- grants are transferred from Greece to Turkey and then from Turkey to the origin countries, the local authorities put them in jail and tortured them. 

Despite the fact of the inhuman conditions of the detention centers and the illegal expulsion of the immigrants without letting them the chance to ask for asylum and to study their personal situation; Greece first with the bilateral readmission agreement from 2002 with Turkey and now Europe will deny the right to access to protection to the refugees. 

The Turkish authorities have generally not carried out deportations of Syrians. However, Migreurop’s delegation reports that a removal operation in March 2013, which occurred after riots Syrian camp Akçakale, caused the death of a child. The riot started after the Syrian refugees’ protest against living conditions in the camp. Meanwhile, associations and local journalist who followed the event rather talk about the forced removal of 600 persons at the border, including families. The journalist reports that Turkey’s authorities contacted the Free Syrian Army to deliver them hundreds of people by posing as pro-regime and exposing their lives in danger. 

 

Readmission Procedures between Greece and Italy 

 

The agreement about the readmission of irregular migrants between Italy and Greece dates back to 1995 and has ever since been criticized for causing human rights violations and actions in conf lict with international law due to the return of irregular migrants without sufficient legal safeguards and procedural guarantees. Continuance of illegal Push-Backs and the Ruling of the EHCR in MSS v Belgium and Greece in 2011 require the readdressing of the issue of readmissions between Greece and Italy. 

1. Considering the existence of the Dublin regulation for the return of irregular migrants and asylum seekers within the framework of the Common Europe- an Asylum system, there is no need for an additional bilateral readmission program between EU member states, especially when the same lacks legal safeguards, contributes to the breach of international law and is mostly used for one-sided readmissions from Italy to Greece only.  

2. In MSS v Belgium and Greece in 2011 the EHCR ruled deportations to Greece a human rights violation, based on an assessment of the state of reception con- ditions and the incapacity of the Greek authority to proceed with the numerous pending asylum claims in due time. In consequence EU-member states refrained from deporting to Greece within the framework of Dublin II (now III). At the backdrop of the EHCR ruling in 2011 and no significant change in the situation of asylum seekers and refugees in Greece, readmissions from Italy to Greece violate procedural guarantees provided by European law and in compliance with MSS v Belgium and Greece – represent a human rights violation against those seeking protection. 

3. According to the agreement readmissions can only be conducted after a re- quest for readmission was made and an official approval of the readmission by the receiving country was provided. The majority of readmissions having been undertaken in between Italy and Greece are, however, so called “informal readmissions”. In such cases irregular migrants are sent to a country without having filed an official request or acceptance beforehand.  

4. Additionally apprehended migrants in Italy are often not properly registered and informed about their legal status or the following procedure. Instead they are forced to sign documents they cannot understand and are immediately sent back without accurate accompaniment. It is obvious that under such condi- tions irregular migrants are not provided with legal safeguards and protection from refoulement. In some cases the Italian border police even instructed the captain of the boat to deliver the irregular migrants to the Greek authorities.  

5. Beyond the mentioned violations of European procedural regulations and humanitarian law, it is testified that irregular migrants experience violent treatment from border police and are left on the ships for return without food, water and/or access to sanitary facilities. Some irregular immigrants injure themselves and put their lives at risk while trying to jump off the boat before arrival on the Italian cost, in order to avoid being apprehended by the police.  

6. Unaccompanied children do not receive attendance or interim measures, but are sent back without a legal guardian. 42 Neglecting the needs of unaccompa- nied children leaves them in a vulnerable position and in danger of exploita- tion, for instance by traffickers. The protections of the rights of the child is one of the priorities of EU Migration policy. 

 

New Regulations

for Frontex Operations on sea 

 

In April 2014 a compromise between the EU Council and Parliament was achieved on new rules for the European Border Management Agency Frontex. The new text was expected to meet the requirements established by the ruling of the ECHR in Hirsi Jamaa and Others v. Italy, take into consideration the most recent tragedies of refugees drowning in the Mediterranean sea and thus was hoped for to provide improvements in the protection of migrants from illegal and life-threatening Push Back operations conducted by Frontex, especially on open sea. The ECRE com- mented on the amended text of the new Frontex regulation, stating: 

”Τhe rules impose a clear duty on units participating in Frontex operations to ensure the safety and human dignity of intercepted or rescued persons. [. . . ] any operational plans for Frontex-coordinated operations must contain procedures to ensure that persons with international protection needs, victims of trafficking, unaccompanied minors and other vulnerable persons are identified and provided with appropriate assistance.”   

Furthermore ECRE sees some improvements for the rights of refugees in the text of the new regulation. Now EU member states are obliged to provide assistance to boats in distress on high sea and criminalization of and sanctions for those having rescued refugees and brought them to a place of safety were abolished.  

Ska Keller, member of the European Parliament for the Greens and former candi- date for the EU commission presidency, highlights important shortcomings of the regulation. Keller notes that the new regulation allows for Push Backs of irregular immigrants and fails to implement the Hirsi ruling, a case in which a refugee was unlawfully pushed back, because he had no chance of formally claiming asylum when he was intercepted on open sea. She adds that, even though numerous legal safeguards for refugees are named and the principle of non-refoulement is empha- sized in the text of the new regulation, there is practically no control of compliance of these rules on open sea: 

“In practice, this leaves Frontex and the Member States participating in a Fron- tex operation with important loopholes for escaping the principle of non-re- foulement.”  

Since there are no possibilities on open sea to formally claim asylum and seek protection and because Frontex units deny any informal claims to protection, refugees who are detected on open sea are usually pushed back, without further examination of their cases. 

PRO Asyl criticizes the new regulation and calls it a “step back” behind the Hirsi ruling of 2012 and says it is undermining the jurisdiction of the ECHR. Beyond that PRO Asyl objects to the extensive authority of the Frontex agency on the Med- iterranean Sea has, which makes it, according to the NGO, impossible to enforce the principle of non-refoulement.  

The GCR agrees with the above mentioned critique of the new Frontex regulation. On the hand there is a chance for more refugees being rescued on open sea instead of being left in distress on sea until death. On the other hand the new regulation fails to establish procedural guarantees for refugees and asylum seekers and does not present a solution to the massive violations of the non-refoulement principle by Frontex on the Mediterranean Sea. As Migreurop’s report cites, the origin of the majority of intercepted persons by Frontex reveals that a certain number of those who have not reached the greek soil, could had applied for a form of international protection in Greece and in Eu- ropean Union. Consequently, as it seems, the greek operations of predetection and dissuasion sont repeted by Frontex’s operations. The agency becomes, in this way, an instrument of international obligations’ distortion engaging the State members towards persons in need of protection. 

5.  Effective remedies (available for those aliens who are not in the asylum procedure and that are subjected to removal) 

In case involving violation of art. 3 of the ECHR the meaning of “effective remedies” under article 13 requires firstly “independent and rigorous scruti- ny” of any complaint made by a person in such a situation where “there exist substantial grounds for fearing a real risk of treatment contrary to Article 3” and secondly “the possibility of suspending the implementation of the measure impugned”.

  • National law provides a remedy against return/deportation decision with sus- pensive effect. However, this remedy is not always accessible due to lack of sufficient legal aid or interpreters, thus it may be not effective. Therefore, this right is not guaranteed in case of interception operation in the territorial/ high seas. 

This right is not effectively respected in practice, as mentioned above, namely absence of appropriate procedural safeguards (information, interpretation, legal assistance).

  • The factors that may prevent from enjoying this right (e. g. limited access to lawyers and tribunal by the alien; notification of the return decision without any/sufficient time to lodge an appeal, etc.), include limited interpretation services, limited legal assistance.

 6.  Right to obtain information 

States must ensure to the aliens the right to obtain sufficient information to enable them to gain effective access to the relevant procedures and to sub- stantiate their complaints.

  • National legislation does foresee a duty to give information at the borders to non-nationals concerning access to the asylum procedure. Art. 7 of the L. 3907/2011 requires that all third-country nationals who are arrested while entering the country without the legal formalities shall be subjected to First Reception procedures which include providing proper information about their obligations and rights, in particular about the conditions under which they can be placed under international protection.
  • The information about the political asylum procedure is given to all migrants and only to those who have already explicitly expressed the intention to apply for asylum. 

As State provision/duty, this information is available in the First Reception Centers and in other facilities where the First Reception Service operates. 

All third-country nationals who are arrested while entering the country without the legal formalities should be subjected to First Reception procedures. All law enforcement officers (whether police or coast guard), involved in particular with border procedures, should be given clear instructions on how to clearly relay infor- mation on the asylum procedure, and should be assessed/controlled in effectively fulfilling this duty. 

Τhere is only one First Reception Centre in Greece (Evros river area) and mobile units of the First Reception Service in only three islands (Lesbos named also Myt- ilene, Chios and Samos). When the First Reception Center is overcrowded the rest people are detained at the neighboring detention centers without any information. 

7.   Duty to train the personnel 

Personnel at board and the military ships should be trained to conduct indi- vidual interviews.

  • The national legislation does not foresee a duty to train on human rights standards/international protection competent authorities (military personnel; border police) who first come in contact with migrants.
  • At sea and land entry points, there is no experienced staff available to respond to the needs of vulnerable persons such as unaccompanied children or trau- matized individuals and as a result in most of the cases these persons are left helpless or do not receive the necessary attention, which discourages them from going on with the asylum procedure.

To UNHCR’s knowledge, regular trainings are organized by the Police Acade- my, either for regular students, or in the framework of post-graduate trainings. In the framework of a standing cooperation between UNHCR and Police, in particular on training issues, UNHCR is invited to upon initiative of the Police Academy, and delivers training seminars to police officers, including those who are competent for irregular migration.

  • The national authorities (military personnel; border police) are regularly up- dated on the situation (in particular on security and human rights conditions) in relevant countries of origin and transit by Frontex. 

The Special Rapporteur of the United Nations Human Rights stressed its concern vis-à-vis the role of Frontex in the interviews with migrants. According to the Rapporteur, “the EU, through Frontex, brings support to Greece to determine the nationality of the persons for deportation and not to identify the needs of protection”. 

More specifically, Migreurop’s fielwork results attest that in numerous cases, there were wrongly identified persons (concerning nationality or age). In partic- ular, Palestinian refugees coming from Syria with a syrian travel document or a syrian identity card have been specifying that they were Palestinian refugees. Nevertheless, Police’s services and Frontex’s agents have registered that they were « stateless », without mentionning their country of origin. Those persons who have been living in Syria, even if they had not syrian nationality, couldn’t benefit by the specific regime applicable to Syrians. 

 

Debriefing procedure seems less framed than screening. According to the agency, it consists on discussing with the person on a voluntary basis in order to collect information about routes and traffickers. Those interviews may last “from 15 min- utes to 3 hours”. The operational plan Poseidon sea 2012 forecasts that Frontex’s agents will not wear their official uniform under the pretext that “migrants feel more confortably”. 

However, two testimonies prove the preoccupations expressed by Migreurop’s delegation: a 40 years-old Syrian explained how he was forced to participate in the interview and that some questions were personal, exceeding the strict frame of migratories routes. Nor, interview’s objectives weren’t in any case explicit. 

Another young Syrian had been interviewed alone for 6 hours, separated from his group, by a Frontex’s agent, greek police agents and an interpreter. 

This intrusive practice in refugees’ lives pose several questions about the real objectif of these interviews. In the same time, the implicated persons are rarely able to identify Frontex and Police agents’ practices. Hence, this mecanism makes extremely difficult to highlight agency’s eventual responsibility in the case of human rights’ violation.  

8.   Duty to provide interpreting services and legal advisers 

Aliens should be assisted by interpreters and legal advisers.

  • The national legislation foresees a duty to provide legal advice and interpret- ing services to non-nationals. 

Article 8(1)(b) P. D. 114/2010 and P. D. 113/2013 provides for the right to in- terpretation services which are funded by the public purse. 

Article 8(1)(c) P. D. 114/2010 and P. D. 113/2013 entitles applicants for inter- national protection to communicate with legal advisors. However, free legal assistance is only provided in appeal procedures before the Administrative Court of Appeals in accordance with the provisions of Law 3226/2004. The L. 3907/2011 regarding First Reception Service requires that in First Reception Center (FRC) third country nationals should have access to ‘guidance and legal advice’ regarding their situation. As regards to the removal procedures, Greece has opted to exclude from the scope of the Return Directive (trans- posed in the Greek legislation with the L. 3907/2011) any persons apprehended for irregular crossing of an external border and who have not subsequently obtained authorization to stay, according to the Article 2 (2) (a) of the Return Directive, thus there is no obligation of providing the necessary legal assis- tance and representation on request free of charge in accordance with the provisions of the art. 33 of the L. 3907/2011. There is limited legal assistance provided by NGOs. 

  • These services are available to all aliens not only to those who have already explicitly expressed the intention to apply for asylum.

 

Conclusions

 

Τhere are testimonies of serious breaches of EU, International and National Law

at the Greek Borders.

Hirsi case did not produce any change in the Greek legislation ,case law or practice. Greece is still in humanitarian crisis concerning the human rights of third country

nationals entering without documents the Greek land and sea borders. 

Readmission Protocols between Greece and other countries should get revised, implemented and interpreted under the International Law. 

  

This report has been redacted by Spyros Koulocheris (Lawyer-Greek Council for Refugees), with the contribution of Minos Mouzourakis Aliki Alexiou, Mathias Verveyen, Alice Fevre

 

The research was also based on the interviews taken by a stakeholder of Frontex (anonymous) a stakeholder- high rank officer of the Greek Marine Police(anonymous), the Professor Ioannis Papageorgiou,the UNHCR Bureau of Athens and the Legal Service of the Greek Council for Refugees.

 

 

 

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Δίκτυο Καταγραφής Περιστατικών Ρατσιστικής ΒίαςEuropean Council on Refugees and ExilesEuropean Network on StatelessnessSeperated Children in Europe ProgrammeEuro-Mediterranean Human Rights Network

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