PRESS RELEASE
Athens, 14
January 2018
THE ASYLUM CAMPAIGN CONDEMNS THE
SERIOUS HUMAN RIGHTS VIOLATIONS CONCERNING THE ASYLUM CASES OF THE TURKISH
MILITARY OFFICIALS
*********
The arrest a few days ago of the
Turkish refugee inside the building of the Asylum Service undoubtedly
constitutes an unprecedented unlawful action against the very core of the rule
of law. The Turkish refugee had been granted international protection by virtue
of a decision of the Independent Appeals’ Committee and he was subsequently put
in administrative detention following the issuance of an interim order by the
President of the Administrative Court of Appeal of Athens suspending the
aforementioned decision.
This unlawful arrest and detention is
part of a series of violations committed by the Executive against the rights of
the 8 Turkish military asylum seekers and refugees and lies in contravention
with fundamental principles of the rule of law, namely the presumption of
innocence, the principle of confidentiality, the right to liberty. They also
mark the continuous slippage of the Government and of the Minister of Migration
Policy into policies, obviously, of expediency at the expense of legality.
In particular, the Asylum Campaign reports
with concern:
1. The unprecedented action of the
Ministry of Migration Policy to submit an application for the annulment of an
institution’s positive decision to grant international protection and the
unacceptable political management that followed it, namely:
·
The unacceptable hurry for the filing
of the application at a police station (!) on a day when the public services
were closed, during official holidays, which evidently does not have any legal
effect and indicates consequently the anxious fulfillment of a commitment, the
extent of which is not known.
·
The unacceptable statement by the
Minister of Migration Policy that "[...]
substantial indications show that these persons have been involved in the coup
d'état [...]”[1], expressing an estimation
to which he is not entitled and which is not allowed for by his official
capacity, given that the examination of the merits of an asylum application lies
within the competency of the Asylum Service at first instance and of the
Committees of the Appeals’ Authority at second instance. It must be noted that the
legislation surely allows the Minister of Migration Policy to submit an
application for annulment against a decision issued by the Appeals’ Authority Committees,
which shall, nevertheless, be established only on arguments of legality
(decision’s form, reasoning etc.) and never on the findings on the merits of
the case. As a result, these statements, which contravene with the
jurisprudence of the Supreme Civil Court, constitute an interference not only in
the justice system and in the asylum procedure, but also an evident violation
of the presumption of innocence protected the ECHR, the latter forming an
important acquis of the developed
legal systems.
·
The successive public statements by
top government officials consisting of estimations on the issues of their extradition
and asylum, since the very arrival of the 8 Turkish asylum seekers[2]
and while the asylum and extradition procedures of their cases were still
pending; these statements violated and continue to violate the presumption of
innocence, the principle of confidentiality and constitute an unacceptable
interference of the Executive in the judicial and asylum procedure.
·
The contradictory statements by top
government officials regarding the legal nature of the Appeals’ Committees,
which were characterized as ‘administrative’, in view of the Minister’s
application for annulment; however, their establishment – with a hastened
amendment[3]
– was justified by the Minister of Migration Policy on the need for enhancement
of their judicial character, which was guaranteed, according to his opinion, by
the participation of two judges in their composition. The same arguments were
used by the Ministry in the context of the adjudication of the applications for
annulment against the regulations and administrative acts concerning the
constitution and composition of the Independent Appeals’ Committees, and
against the relevant administrative acts rejecting the international protection
applications as inadmissible, without an in-merit examination, on the grounds
of Turkey being a safe third country for the return and protection of Syrian
appellant asylum seekers in Greece. [4]
The Council of State (Supreme Administrative Court), nevertheless, judged in
favor of the judicial character of the Independent Appeals’ Committees in its
decisions no. 2347/2017 and 2348/2017, in contravention with its
previous settled jurisprudence.
We would like to remind at this
point that the Independent Appeals’ Committees were established in their
current composition by a hastened amendment of the newly at the time passed Law
4375/2016, which ‘coincided’ with decisions issued by the Appeals’ Committees
of the P.D. 114/2010 finding competently that Turkey could not be considered a
safe ‘third’ country for the return of Syrian asylum seekers and therefore
contradicted the EU-Turkey Statement’s relevant presumptions of the opposite.
The circumvention of the competency of a body by its immediate replacement was
followed by provisions consisting of a series of violations against fundamental
guarantees of access to international protection in Greece which clearly
contravene with the Constitution.
In conclusion, regardless
of whether the Appeals’ Committees feature the guarantees of a judicial body – about
which the Asylum Campaign has expressed its serious reservations, as well as
about the related issue of their constitutionality – the aforementioned
contradictions and maneuvers by top government officials and the Minister of
Migration Policy cause serious concerns. It becomes evident from these actions
that the characterization by the Ministry of Migration Policy of the legal
nature and its respect to the function and decisions of the Appeals’ Committees
depends on the fulfillment of goals irrelevant to international protection.
Thus, the characterization of the Appeals’ Committees as “a judicial body of elevated guarantees of independence” is
convenient in the case of the dismissed Syrians, but not at all convenient in
the case of the recognized Turkish refugee; that is why, in this case, the
Committee is characterized by the government officials merely as an
administrative body.
2. The unlawful, unacceptable and scandalous
arrest inside the building of the Asylum Service and subsequent administrative
detention of the Turkish recognized refugee, who had been granted international
protection by virtue of a decision of the Independent Appeals’ Committee, after
the issuance of an interim order suspending the aforementioned decision by the
President of the Administrative Court of Appeal of Athens. It must be mentioned
that the interim order of the President of the Administrative Court of Appeal
of Athens does not annul the decision of the Independent Appeals’ Committee, by
virtue of which he was granted international protection, but suspends its legal
effect temporarily. Following this interim order and just before he was
arrested, the Turkish refugee received the international protection applicant’s
card, by virtue of which he should be allowed to reside in the country in a
state of freedom.
·
First of all, it is scandalous that a
recognized refugee who had just received the international protection
applicant’s card, by virtue of which he should be allowed to reside in the
country in a state of freedom until the completion of the pending judicial
procedure, was arrested right outside the door of the Asylum Service’s
Director. The lack of reaction of the Asylum Service against this unlawful
action that took place in its offices – right outside the door of the Director-
against a person under its protection causes serious concern.
·
This arrest and detention are
manifestly unlawful and even criminal responsibility can be established for the
person who ordered them as well as for those who gave the command, given that
any legal provision does not provide for the arrest and administrative
detention of an asylum seeker who has received the relevant asylum seeker’s
card which allows him a free residence in the country. As mentioned in the
relevant press release of the Greek Council for Refugees,[5]
the current Greek legislation and especially art. 46 par. 2 of Law 4375/2016,
clearly provides the circumstances where a third country national who applies
for international protection can be exceptionally detained. In particular,
according to Art. 46 par. 2 of L. 4372/2016: “An alien or a stateless person who submits an application for
international protection while in detention according to the relevant
provisions of Laws 3386/2005 (O.G. A’ 212) and 3907/2011 (O.G. A’ 7) as in
force shall remain in detention, exceptionally and if this is considered
necessary after an individual assessment under the condition that no
alternative measures […] can be applied[…]”. The clear phrasing of this provision demonstrates that there is only one
case where a person who has applied for international protection can be
detained. That is when a third country national who has already been arrested
and detained for the purpose either of deportation (L. 3386/2005) or of return
to his country of origin (L. 3907/2011), submits an application for
international protection. That is the only case of a person being “kept” in detention, as is explicitly
mentioned in the provision, and exceptionally as well, only if the other
requirements of the law are met.
·
The decision of the competent Police
Director ordering his re-arrest and detention, regardless of its in principle
unlawful character, contains arbitrary justifications in its reasoning
exceeding the competency of the police services that issued it, contradict the findings
of the Supreme Civil Court and refer to anachronistic patterns of police
operation outside its framework of legitimacy, proceeding to "evaluation"
and "judgment" of ideas and intentions as well as to patterns of
"punishment” for exemplification and deterrence “[…] given that the legal procedure of detention is activated in order
to address the resulting serious threat to the public order and national
security of the country, as the only appropriate for these circumstances
measure […].Besides, the occasion of his case causes serious risks by other
foreigners, either like-minded or not, who pose a threat to the security and
peace of the country and of its citizens because of their own aspirations.”
These actions and
maneuvers are following a series of decisions and regulation by the Government
and the Minister of Migration Policy in the field of international protection
and raise serious concerns regarding compromises of legitimacy in favor of
expediency: the insistence of the Ministry of Migration Policy with regard to
the characterization of Turkey as a safe third country for the asylum seekers,
its interventions with the aim of the EU-Turkey Statement implementation at all
cost, the circumvention of an institution’s competency – of the previous
Appeals’ Committees – by its immediate replacement after the issuance of
decisions that contradicted the characterization of Turkey as a safe third
country, demonstrate the slippage of Hellenic Society’s stance vis-à-vis the
protection of human rights.
The respect of
human rights in a democratic society cannot tolerate neither conditions nor
derogations.
We expect the
self-evident judicial protection of the Turkish refugees and the unimpeded
implementation of the law during the adjudication in front of the
Administrative Court of Appeal of Athens of the application for annulment
against the decision issued by the Independent Appeals’ Committee which granted
international protection to this particular Turkish refugee.
We highlight
that, according to the aforementioned decision of the Independent Appeals’
Committee, if he is returned to Turkey, there is a serious risk of being
submitted to torture and inhuman and degrading treatment as well as of being
tried by a court without the necessary guarantees for an independent and
impartial judgment; there is, therefore, a well-founded and reasonable fear of
persecution in Turkey.
We remind that
the Supreme Court has ensured an important framework of protection by rejecting
the Turkish authorities’ request for extradition against this Turkish refugee,
justifying the decision on the grounds that he would be in danger of facing
inhuman and degrading treatment and a unfair trial, if he was returned to
Turkey, especially because of the vague description of charges by the Turkish
authorities.
The recognition
of international protection is an act of application of a legal provision,
according to the 1951 Geneva Convention relating to the status of refugees, and
not a political decision.
The protection of the human rights of
the Turkish refugees, the protection of the refugees in general and the
protection of the human rights of every person in this country is a matter of
democracy and not political decisions. We urge the Government to respect them
and uphold them as it should.
Signing Organisations (in alphabetic
order):
AITIMA http://www.aitima.gr
ARSIS - Association
for the Social Support of Youth arsis.gr | arsis
Greek Council for
Refugees http://www.gcr.gr
Greek
Helsinki Monitor https://greekhelsinki.wordpress.com
Initiative for
the Rights of Detainees http://www.tokeli.gr
“LATHRA?” Committee for Solidarity to Refugees in Chios http://www.lathra.gr
Network of Social Support for Refugees
and Migrants
Refugee Support Aegean
http://rsaegean.org
World without
Wars and Violence http://www.kosmosxorispolemous.gr
[1] I. Mouzalas, “Substantial indications
show that these persons have been involved in the coup d'état”, Naftemporiki,
Wednesday, 10 January 2018 00:29 http://www.naftemporiki.gr/story/1310469/g-mouzalas-yparxoun-basimes-endeikseis-oti-prokeitai-gia-praksikopimaties
[2] GNCHR Statement [in Greek] on the
occasion of the examination of the eight Turkish military officials’
applications for international protection, July 2016, http://www.nchr.gr/images/pdf/apofaseis/prosfuges_metanastes/dilosi_gia_toys_okto.pdf
[3] Amendement 496/25/15.6.2016 Amendment of provisions concerning
issues of the Asylum Service and the Appeals’ Authority (L. 4375/2016) (in
Greek) http://www.hellenicparliament.gr/Nomothetiko-Ergo/Katatethenta-Nomosxedia?law_id=9b433789-dc33-4a10-a454-a61901526035
[4] Campaign for the Access to Asylum, Press release in light of the
Council of State’s Grand Chamber hearing
about the applications for annulment of the legal provisions concerning
the Independent Appeals’ Committees’ composition and the rejection of
applications for international protection on the grounds of Turkey’s
consideration as a safe third country, 9/3/2017, http://asylum-campaign.blogspot.gr/2017/03/09032017.html
[5] GCR, Legal Clarifications regarding
the impossibility to detain an international protection applicant in a state of
freedom, according to national and EU legislation (in Greek) http://www.gcr.gr/index.php/en/news/press-releases-announcements/item/775-nomikes-diefkriniseis-sxetika-me-ti-mi-dynatotita-kratisis-eleytherou-aitoyntos-diethni-prostasia-kata-to-ethniko-kai-enosiako-dikaio
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