October 25, 2017

Jura novit curiae?

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A critical review of the judgments 2347/2017 and 2348/2017 by the plenary of the Council of State

With its judgments 2347/2017 and 2348/2017, the Greek Council of State ruled against the annulment applications brought by two Syrian refugees, whose asylum application had been rejected by the Independent Appeals Committees as inadmissible - namely without an examination as to whether they qualify for refugee status according to the 1951 Geneva Convention – because Turkey was designated a “safe third country”, where they can receive appropriate protection pursuant to Article 38 of the 2013/32/EU Directive . It should be noted that, although the provision in question exists in the European law since 2005 (previous Directive 2005/85/EC) and was transposed into Greek law as early as 2008, the Greek administration applied the concept “third safe country” for the first time in March 2016 following the implementation by the Greek government, of the EU-Turkey Statement. The applicants had requested that a reference for a preliminary ruling is submitted before the Court of Justice of the European Union (CJEU) by the national Court, so that the applicable provision is interpreted vis-à-vis the legal and actual situation in Turkey, especially after the state of emergency was declared and the subsequent deviation from fundamental rights, but also with regard to the systematic illegal practices applied by the Turkish government. However, the Council of State with a limited majority of 13 to 12 judges, decided not to refer the case to the CJEU, thus violating not only Article 6 of the ECHR on the right to a fair trial, but also the obligations of the Greek authorities under international and European refugee law. It is striking that the majority imposed its opinion, that the European provisions are clear, without providing any justification, despite the fact that the mere existence of a minority of 12 judges clearly highlighted that the interpretation of the aforementioned provisions was by no means obvious beyond any reasonable doubt, as required by the CJEU.

Furthermore, according to the Council of State’s ruling, the contested decisions of the Appeals Committees, which, inter alia, considered that the temporary protection status granted to Syrian refugees in Turkey is sufficient, as set forth in the 1951 Geneva Convention; the principle of non-refoulement is respected and that Syrian refugees are not at risk of arbitrary detention, were all legally reasoned and in accordance with the law. However, by concluding this this way, the Council of State overlooked basic legislative requirements for a thorough examination and reasoning and for the provision of protection to refugees in accordance with refugee and humanitarian law, as well as the actual situation in Turkey today. The Court scandalously accepted that the legal framework in Turkey meets the conditions of a safe third country, although it is clear from the mere reading of the temporary protection status regulation and the law on expulsion and detention procedures (particularly in the wake of the legislative changes that followed the attempted coup under the state of emergency), that the legal framework does not provide guarantees of compliance with the principle of non-refoulement and the provision of an effective protection as set forth in the 1951 Geneva Convention.

More specifically, we would like to remind that Turkey has not yet lifted the geographical limitation on the 1951 Geneva Convention and therefore, refugees from Syria are not entitled to a refugee status under the 1951 Geneva Convention, but are only granted a temporary protection status, which amounts to a mass, non-individualized, revocable at any time status, by a decision of the executive authority it does not ensure access to an effective appeal or remedy and it doesn’t recognize and ensure to its beneficiaries all rights and entitlements foreseen in the 1951 Geneva Convention. At the same time, the legal framework governing the deportation procedure, doesn’t even comply with the minimum guarantees enshrined in Article 3 ECHR – not even with the ones providing for the suspensive effect of the appeal in all cases. Apart from the fact that Turkey has suspended the application of the aforementioned article, since the failed coup attempt in July 2016.

Furthermore, the Council of State strikingly accepted that the Appeals Committee’s reasoning is legal, although it is based mainly on diplomatic assurances provided by the Turkish authorities, having failed to examine the credibility of the state which provides them or to scrutinize the application of the law in practice, as conclusively proven through documents and reports published by international organizations and reliable NGOs or following its own research. Furthermore, the Council of State concluded, that the contested decisions were legally reasoned, overlooking the most substantive of the three UNHCR letters sent to the Asylum Service, in particular the one of December 2016 (which clarified the content of the first two, stressing that that the Agency was not able to access and monitor the situation of the returnees) and paraphrasing the content of a report by the Parliamentary Assembly of the Council of Europe (which explicitly concluded that Turkey is not a safe third country) and of the report of the Special Representative on Migration and Refugees of the Council of Europe Secretary General (which identified a number of systemic problems and lack of procedural guarantees in the protection of refugees in Turkey).

Further on, the Council of State failed to rule on the situation in Turkey in light of the legal and actual situation, especially taking into account the current Turkish legislation and the Executive Degree 676/29.10.2016. On the contrary, the Court chose to base its judicial reasoning on letters provided by Turkish governmental officials, the European Commission and UNHCR Representation in Greece. On 22.9.2017, the date when the judgements were issued ruling Turkey as a safe third country, Amnesty International published a statement on the prevailing situation in Turkey demonstrating violent incidents of refoulement, initiation of massive cases of criminal prosecution based on the counter-terrorism legislation - even against an elderly woman from Syria, for wearing a scarf bearing the colours of the Kurdish flag. Even though, the woman lived in Turkey and enjoyed the temporary protection status granted to Syrians, she was deported back to Syria alone, without her family. Furthermore, the statement established the practice of the Turkish authorities to consider as a threat to public order, and thus subject to deportation without a suspensive effect in case of an appeal, even those Syrians committing acts of minor criminality, such as the possession of a fake passport, an unlawful act, quite common among refugees.

Following the Council of State rulings, Syrian refugees are at risk of being returned back to Turkey, namely in a country where they are in danger of being deprived of their fundamental rights, subjected to cruel, inhuman and degrading treatment, arrested, tortured, deprived of the right to a fair trial and finally deported back to their country of origin, where they are confronted with war and death.

The judicial prestige was only salvaged by the dissenting opinions of the judges forming the minority[1].

The Group of Lawyers for the Rights of Migrants and Refugees expresses its disappointment in the Council of State judgments 2347/2017 and 2348/2017, blatantly founded on an unfair judgment, directly violating fundamental principles of our legal culture - the principle of non-refoulement, the refugee protection, the obligation to conduct a thorough investigation etc. - and they legitimize the violation of refugees’ rights. We also believe that this development should be a matter of concern to UNHCR, whose letter was included in the reasoning of the second degree decisions, but also of the Council of State, in order to accept Turkey’s designation as a safe third country. The silence of UNHCR Representation in Ankara and the “neutral” position of its Representation in Athens, not only left room for the legal argumentation on the guarantees of refugee rights in Turkey to develop, but in actually, reinforced it.

The Group of Lawyers would like to remind once more, that even in the most extreme cases of state of emergency, the judiciary has the duty to establish what is just, to denounce the unjust and to effectively protect the weak without yielding to political pressure.

Athens, 25 October 2017

[1] The dissenting opinions are available in full extent at the Greek version of this announcement, which can be accessed here: http://omadadikigorwn.blogspot.gr/2017/10/2347-2348-2017.html#more

Download the document here