Mar 21, 2016 | News
The ICJ today expresses serious concern that the deal concluded on Friday 18 March between the European Union and Turkey on the return of migrants and refugees to Turkey is likely to lead to serious violations of international and EU human rights and refugee law.
“This initiative carries high risks of infringing the right of asylum and the prohibition of non-refoulement, as well as the right to an effective remedy for potential violations of these rights”, said Róisín Pillay, Director of the ICJ Europe Programme.
All EU Member States, including Greece, have obligations to protect these rights under international human rights law, and Member States and EU institutions have similar obligations under the EU Charter of Fundamental Rights.
The agreement seeks to establish swift return from Greece to Turkey of any migrant or asylum seeker attempting to reach Greece who does not apply for international protection there or whose application is deemed unfounded or inadmissible.
In order to facilitate such returns, Turkey may be declared to be a “safe third country” which could allow for the dismissal of asylum requests in Greece based on this element alone, and the rapid return of applicants.
The EU and Turkey, in their joint statement, contend that these operations will not be carried out in violation of international and EU law, including the prohibition of collective expulsions and the principle of non-refoulement, which prohibits return to a country where the returned person faces a real risk of torture or other serious violation of human rights.
It is nevertheless unclear how the system proposed could lead to swift returns, while respecting international human rights and refugee law, the EU Charter of Fundamental Rights and the EU Asylum Procedure Directive, for a number of reasons.
First, the ICJ stresses that Turkey cannot be considered a “safe third country” for the return of migrants and refugees.
Authoritative reports and international jurisprudence on Turkey demonstrate that neither the general human rights situation in Turkey, nor its asylum procedure and reception system are in line with international law, including Turkey’s obligations under the European Convention on Human Rights’ prohibition of inhuman and degrading treatment in article 3 ECHR.
Second, the ICJ affirms that the commitment of Turkey to adapt its asylum system to comply with international law and standards does not in itself allow for returns from EU countries in compliance with the principle of non-refoulement.
International and EU law binding on Greece and other EU Members States requires an assessment of the situation in the country of return at the moment the return is effected to determine whether there is a real risk of violations of human rights.
Therefore, at present, and irrespective of the commitments made on reform, any return to Turkey would be at high risk of infringing the principle of non-refoulement and the returning country’s legal obligations.
Crucially for the prospects of the new system, it is also clear that the Greek asylum system is not in a position to proceed to a swift consideration of asylum applications in compliance with human rights, including procedural guarantees.
“As is clear from ongoing Council of Europe discussions about implementation of European Court decisions against Greece, the Greek asylum procedure cannot yet provide for an effective remedy for cases of arbitrary refoulement. Without respect for such guarantees, many migrants will be left vulnerable,” said Massimo Frigo, Legal adviser at the ICJ.
The ICJ emphasises that, whatever co-operative arrangements are put in place, Greece and Turkey will have responsibility under international human rights and EU law as regards the rights of persons subject either to Greek or Turkish territorial jurisdiction or to Greek or Turkish authority and/or control.
Furthermore, through its direct involvement in and financing of these arrangements, the EU itself may be complicit in any breach of the right of asylum, the prohibition of collective expulsions, the prohibition of non-refoulement or the right to an effective remedy.
The ICJ is further concerned at the “one for one” resettlement mechanism that will be established to settle one Syrian refugee in a EU country for every Syrian returned to Turkey.
It is of serious concern that this mechanism contemplates the return of Syrians to Turkey. Syrians are prima facie entitled to international protection and would likely fall within one of the grounds of international protection of the EU Qualification Directive.
It would therefore be unlawful under EU law to return them to Turkey.
Full text and additional information on the content of the deal available here.
Contact
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Massimo Frigo, Legal adviser, Europe Programme, massimo.frigo(a)icj.org
Sep 15, 2014 | Events, News
The International Commission of Jurists and the Greek Council for Refugees will hold today a two-day conference on administrative detention of migrants and asylum seekers according to international and Greek law.
The conference will address the interplay of international law, EU law and national law in the domain of administrative detention of third country nationals. With presentations given by international experts and Greek experts and practitioners, the conference will address issues such as the nature of detention, its lawfulness, conditions of detention and treatment and judicial review of situations of deprivation of liberty.
Greece-conference-detention-ICJGCR-2014 (programme in English)
Greece-conference-detention-ICJGCR-2014-greek (programme in Greek)
Migration_and_International_Human_Rights_Law_Greek_materials (Collection of case law materials in Greek)
Nov 7, 2013 | News
FIDH, ILGA-Europe, ICJ, AIRE-Centre and HLHR welcome this important decision. The organizations had submitted written comments about the case to the Court in June 2011.
In a judgment in the joint cases of Vallianatos and Mylonas v. Greece and C.S. and others v. Greece delivered today, the Grand Chamber of the European Court of Human Rights ruled that Greece had violated the European Convention on Human Rights by excluding same-sex couples from a “civil union”, restricted in Greece to heterosexual couples.
“All Member States of the Council of Europe must condemn any form of discrimination against homosexuals. Homosexual couples, as heterosexual couples, involved in a stable relationship, should benefit from a legal recognition”, said Karim Lahidji, FIDH President. He added: “Twenty-two of the Member States of the Council of Europe have created a legal form of recognition for same-sex couples. Greece must change its law to comply with the European Convention on Human Rights”.
Evelyne Paradis, Executive Director of ILGA-Europe, said: “The European Court of Human Rights reaffirmed already established principle that sexual orientation discrimination is in breach of the European Convention. Now the Court took yet another step to say that if a country provides legal recognition to unmarried heterosexual couples in a form of civil unions, same-sex couples also must be able to benefit from such legal recognition. European consensus on the legal recognition of same-sex partnership is constantly growing and we welcome the fact the Court is taking it into account and reflect in its jurisprudence.”
Livio Zilli, Senior Legal Adviser at the International Commission of Jurists, said: “The Court reiterated that the Convention was a living instrument to be interpreted in the present-day conditions and that the state was obliged under the Convention to take account of societal developments, as well as the fact that there is no single way or choice when it came to people’s exercise and enjoyment of their right to family or private life.”
In its decision, the Court ruled that Greece had failed to provide a convincing justification for excluding same-sex couples.
The Government’s argument, according to which the law’s main purpose was to protect children of unmarried parents, did not constitute a valid reason, because the law’s real objective was the legal recognition of a new form of family life.
Therefore, exclusion of same-sex couples breaches the Convention.
In November 2008, Greece adopted a law creating the “civil unions”, an alternative to marriage.
However, the first article restricts such unions to “two physical individuals of different sex who have reached the age of majority”. An animated debate relating to the inclusion of same-sex couples took place before the adoption of this law.
During the debate before the Hellenic Parliament, the Minister of Justice at the time, declared: “We mustn’t include same sex couples. We are indeed convinced that the needs and demands of the Hellenic society do not cross this line; as a legislator, the political party in power is accountable to the Greek people; we have our own beliefs and negotiations are over; I believe it is the way to go”.
In their written comments, FIDH, ILGA-Europe, ICJ and AIRE-Centre recalled that the European Court has repeatedly condemned direct discrimination based on sexual orientation as a violation of protected rights.
The Court’s case-law reiterates that when it comes to a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought.
It must also be shown that the discriminatory treatment is necessary in order to achieve that aim, otherwise the measure will be in violation of the Convention. Creating a “civil union” only for unmarried different-sex couples amounts to direct discrimination and therefore violates the Convention.
Today’s decision follows recent jurisprudence of the Court against discrimination of same-sex couples. On February 2013, in the X. and others v. Austria case, the European Court condemned Austria for banning a homosexual person to adopt the biological child of his/her partner. It decided that the ban of unmarried same-sex couples, which are in the same situation than unmarried different-sex couples, was not justified and violated article 14 of the Convention in conjunction with article 8.
Contact:
Livio Zilli, Senior Legal Adviser, ICJ, e-mail: livio.zilli(a)icj.org
Additional information:
- Judgement of the European Court of Human Rights in the case of Vallianatos and Mylonas v. Greece and C.S. and others v. Greece
- According to the Rainbow Europe’s Index (May 2013), Greece came 25th among 49 European countries in terms of laws and policies affecting the human rights of LGBTI people.
Greece-Vallianatos_CEDH-news-press release-2013-FR (full French text in pdf)
