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The Legal Studies Collection is the first of its kind to offer readers an English language compendium of contemporary legal research by scholars linked to Spanish Universities. The series, published by Tirant Lo Blanch, will cover a wide range of topics and examine key aspects of the Spanish legal system as well as analysing the most important issues under debate in other jurisdictions. Each book will aim to present a thorough and incisive study of its subject, providing specialised material to legal academics. It is expected that the series will become a source of reference for law students and play a major part in fostering academic excellence in the study of Law.

PROBLEMS AND PROPOSALS REGARDING THE COMMON EUROPEAN ASYLUM SYSTEM

legal studies

PROBLEMS AND PROPOSALS REGARDING THE COMMON EUROPEAN ASYLUM SYSTEM THE EXAMPLE OF GREECE Ángeles Solanes Corella Danai Delipetrou Preface by

Javier de Lucas

legal studies

ángeles Solanes Corella Danai Delipetrou

legal studies

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The right to asylum, as back as the term goes historically, is usually not recognized or granted, mostly due to the lack of a common policy and a consensus regarding solidarity and equality. Therefore, a systematic approximation, rather than the common one of a supposed crisis, is required. The Common European Asylum System (CEAS) was the outcome of a series of collapses of the methods followed and initiatives taken by the European Union towards its creation. The Regulation (EC) No 343/2003, known as “Dublin II”, apart from being a negative reference on asylum policies all around the European Union, marked the transition from the CEAS’ first phase to the second one. Greece is used as the central example of the Dublin System’s shortcomings, principally -but not exclusively- through the case of M.S.S. versus Belgium and Greece. The book also examines the relationship between the current arrivals of persons within the Greek territory and the -political, rather than legalagreement between the European Union and Turkey. The role of the Schengen area, FRONTEX and the Media is added to demonstrate, through a critical analysis, that human rights are and should be the response to the refugees’ situation within Europe.

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PROBLEMS AND PROPOSALS REGARDING THE COMMON EUROPEAN ASYLUM SYSTEM THE EXAMPLE OF GREECE

COMITÉ CIENTÍFICO DE LA EDITORIAL TIRANT LO BLANCH María José Añón Roig

Catedrática de Filosofía del Derecho de la Universidad de Valencia

Ana Cañizares Laso

Catedrática de Derecho Civil Universidad de Málaga

Jorge A. Cerdio Herrán

Catedrático de Teoría y Filosofía de Derecho. Instituto Tecnológico Autónomo de México

José Ramón Cossío Díaz

Ministro de la Suprema Corte de Justicia de México

Eduardo Ferrer Mac-Gregor Poisot

Juez de la Corte Interamericana de Derechos Humanos. Investigador del Instituto de Investigaciones Jurídicas de la UNAM

Owen M. Fiss

Catedrático emérito de Teoría del Derecho de la Universidad de Yale (EEUU)

José Antonio García-Cruces González

Catedrático de Derecho Mercantil de la UNED

Luis López Guerra

Juez del Tribunal Europeo de Derechos Humanos Catedrático de Derecho Constitucional de la Universidad Carlos III de Madrid

Ángel M. López y López

Catedrático de Derecho Civil de la Universidad de Sevilla

Marta Lorente Sariñena

Catedrática de Historia del Derecho de la Universidad Autónoma de Madrid

Javier de Lucas Martín

Catedrático de Filosofía del Derecho y Filosofía Política de la Universidad de Valencia

Víctor Moreno Catena

Catedrático de Derecho Procesal de la Universidad Carlos III de Madrid

Francisco Muñoz Conde

Catedrático de Derecho Penal de la Universidad Pablo de Olavide de Sevilla

Angelika Nussberger

Jueza del Tribunal Europeo de Derechos Humanos.

Catedrática de Derecho Internacional de la Universidad de Colonia (Alemania)

Héctor Olasolo Alonso

Catedrático de Derecho Internacional de la Universidad del Rosario (Colombia) y Presidente del Instituto Ibero-Americano de La Haya (Holanda)

Luciano Parejo Alfonso

Catedrático de Derecho Administrativo de la Universidad Carlos III de Madrid

Tomás Sala Franco

Catedrático de Derecho del Trabajo y de la Seguridad Social de la Universidad de Valencia

Ignacio Sancho Gargallo

Magistrado de la Sala Primera (Civil) del Tribunal Supremo de España

Tomás S. Vives Antón

Catedrático de Derecho Penal de la Universidad de Valencia

Ruth Zimmerling

Catedrática de Ciencia Política de la Universidad de Mainz (Alemania)

Procedimiento de selección de originales, ver página web: www.tirant.net/index.php/editorial/procedimiento-de-seleccion-de-originales

PROBLEMS AND PROPOSALS REGARDING THE COMMON EUROPEAN ASYLUM SYSTEM THE EXAMPLE OF GREECE

ÁNGELES SOLANES CORELLA DANAI DELIPETROU Universitat de València

Valencia, 2017

Copyright ® 2017 Todos los derechos reservados. Ni la totalidad ni parte de este libro puede reproducirse o transmitirse por ningún procedimiento electrónico o mecánico, incluyendo fotocopia, grabación magnética, o cualquier almacenamiento de información y sistema de recuperación sin permiso escrito de los autores y del editor.

En caso de erratas y actualizaciones, la Editorial Tirant lo Blanch publicará la pertinente corrección en la página web www.tirant.com.

Directores de la colección: TOMÁS S. VIVES ANTÓN Catedrático de Derecho Penal Universidad de Valencia ELENA M. GÓRRIZ ROYO Titular de Derecho penal Universidad de Valencia

© Ángeles Solanes Corella Danai Delipetrou

© TIRANT LO BLANCH EDITA: TIRANT LO BLANCH C/ Artes Gráficas, 14 - 46010 - Valencia TELFS.: 96/361 00 48 - 50 FAX: 96/369 41 51 Email:tlb@tirant.com www.tirant.com Librería virtual: www.tirant.es ISBN: 978-84-9143-923-3 MAQUETA: Tink Factoría de Color Si tiene alguna queja o sugerencia, envíenos un mail a: atencioncliente@tirant.com. En caso de no ser atendida su sugerencia, por favor, lea en www.tirant.net/index.php/empresa/politicas-de-empresa nuestro Procedimiento de quejas.

Index List Of Abbreviations.......................................................................... 9 Preface................................................................................................ 11 1. Introduction................................................................................... 15 2. National policies and the intents of harmonization to the right of asylum........................................................................................... 19 2.1. Legal fundamentals within a theoretical approach: a call for conformity....................................................................................... 20 2.1.1. Definition of the right of asylum..................................... 20 2.1.2. Depiction of the national and supranational dimension of asylum law...................................................................... 22 2.1.3. CEAS: Responding to the need to harmonize the concept of asylum........................................................................ 26 2.2. CEAS’ weak points and the urgent necessity of a solution: A critical approach............................................................................. 32 2.2.1. CEAS’s inefficiency.......................................................... 32 2.2.2. Europe’s current situation and existent legislature........... 37 2.2.3. In need of immediate extraordinary measures, aspiring to endurance........................................................................ 42

3. The case of Greece......................................................................... 47 3.1. Greece as a non-safe State; then versus now............................... 48 3.1.1. A brief description of Greek legislature until 2011.......... 50 3.1.2. Refugees’ reception conditions at the time....................... 55 3.1.3. The detentions of asylum seekers: An ECHR perspective. 59 3.2. From an ECHR sentence to a static situation.............................. 64 3.2.1. The case of M.S.S. v. Belgium and Greece........................ 66 3.2.2. The obligatory changes in Greek law post-sentence......... 70 3.2.3. Non-compliance and its consequences related to reception conditions................................................................ 75

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Table of Contents

4. The Hellenic State’s current critical situation and its effects on Europe............................................................................................... 79 4.1. Greece as a principal European getaway for migrants................. 81 4.1.1. The situation in numbers and the necessary extraordinary measures on the migration flows from Syria.................... 83 4.1.2. Land and Sea Borders, Schengen and FRONTEX, on the verge of the EU-Turkey deal............................................ 88 4.1.3. The dilemma between legitimacy and efficiency during a state of emergency........................................................... 91 4.2. The Media’s part and the struggle between awareness and commercialization............................................................................. 95 4.2.1. The Media’s angle in reference to refugees...................... 97 4.2.2. The Internet’s de facto institutionalization in the era of the social media............................................................... 101 4.2.3. Searching for a limit........................................................ 105

5. EU and Turkey Deal: Its meaning and the Aftermath..................... 109 5.1. The Agreement’s Legal and Social Impact................................... 109 5.1.1. Changes in the Greek Law After the Deal........................ 110 5.1.2. Turkey as an Unsafe Third State...................................... 114 5.1.3. The Situation within Turkey and the Coup Attempt........ 118 5.2. Post-Agreement Reactions and Conditions.Improvement or Deterioration?................................................................................. 122 5.2.1. The European Union’s position post-Agreement.............. 123 5.2.2. Greece After the Deal: Reception and Detention Conditions................................................................................ 127 5.2.3. Human Rights versus the EU-Turkey Deal...................... 131

6. Conclusions................................................................................... 135 7. Bibliography.................................................................................. 141 8. Documentary Sources.................................................................... 145

List Of Abbreviations CEAR CEAS CPT EASO ECHR ECRE EU FRONTEX HRW IOM KKE NOAS NGO PD SEA UK UNHCR

Comisión Española de Ayuda al Refugiado Common European Asylum System European Committee for the Prevention of Torture European Asylum Support Office European Court of Human Rights European Council on Refugees and Exiles European Union European Agency for the Management of Operational Cooperation at the External Borders Human Rights Watch International Organization for Migration Κομμουνιστικό Κόμμα Ελλάδος (Greek Communist Party) Norwegian Organization for Asylum Seekers Non-Governmental Organization Presidential Decree Single European Act United Kingdom United Nations High Commissioner for Refugees

Preface It is clear that the European Union’s migratory and asylum policies, or of any of the States that have the condition of the destination of the migratory movements, have a double dimension. On the one hand, these are programs of political action of considerable complexity, which cannot, of course, dispense with the international pillar or dimension. Not only in their instruments, but also in the definition itself: What I mean is that, beyond their sectoral nature, they form an important part of the EU’s external action and, in this way, they contribute decisively to shaping the image of the European Union globally. It is in this area, where the test of the political will of the EU to be an agent of peace, cooperation and maintenance of international legality, is verified.

At the same time, we must not forget that the legal instruments, through which these policies unfold, present a degree of difficulty that is impossible to minimize. This difficulty is, first of all, technical and legal, which calls for a necessary work, a particularly delicate one, if I may say so, of an authentic legal-craftsmanship, especially if all the interests involved are to be safeguarded and, as would be expected, first of all, the rights of the most directly affected, the immigrants and refugees, who are in a situation of remarkable vulnerability (let alone the ones among them who are especially vulnerable, such as women and children, and specifically unaccompanied minors).

In both cases, the first requirement to be complied with is coordination and harmonization. The European Union is in a privileged place to make real what is a repeated topic within this matter: no State can nor should aspire to maintain on its own a sufficient response to the challenges posed by these migratory movements in a broad sense (migration and displacement of those seeking protection through the right of asylum). It is a question on a global dimension, requiring responses at the same level. And, because of their geopolitical characteristics, as well as their status as a community of law, the EU Member States are in a particularly favorable position to offer such a response. This is not the time to analyze whether this objective has been achieved in both areas, although I cannot stop expressing my

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Javier de Lucas

negative assessment. We are still very far from them, mostly because of the process of renationalisation that we have been experiencing in the last few years and which, particularly in asylum matters, has offered a shameful sight that I once defined as a Turkish bazaar, based on the proposals that The European Commission launched by presenting the New European Agenda for Migration and Asylum in May 2015.

Nobody with the slightest level of objectivity could qualify otherwise than as a failure the Commission’s attempt to implement what theoretically exists, a Common European Asylum System (CEAS), with regard to the management of the unbalanced presence within the EU territory (meaning the imbalance between the situation in Greece and Italy with respect to the rest of the members) of asylum seekers, the vast majority of them coming from the diaspora caused by the war in Syria. In view of the proposals to set up a balanced, objective and common solidarity mechanism of redistribution, the resistance of the Member States’ governments (practically all but the two countries affected and, at least in a first phase, Germany and Sweden) during the years 2015 and 2016 has been so ferocious that the EU has had to officially recognize at the beginning of March 2017 that it gives up on the modest goal proposed in 2015 (that of 160.000 refugees distributed in its territory). Non-compliance by the Spanish Government is so glaring that it does not need a greater gloss.

Professor Solanes is one of the most recognized experts in the analysis of the legal instruments of these policies. Now, together with a researcher from the Institute of Human Rights of the University of Valencia, whose PhD thesis she directs, Danai Delipetrou, they offer us in the first part of this book a detailed study of the CEAS and the reasons for its failure, as well as the possible routes of action.

But the most important, in my opinion, is what they propose to us within the following three parts. On the one hand, because we lack studies that analyze in detail what is undoubtedly a punctum dolens of European asylum policy and the CEAS itself: the situation in Greece, the country that, together with Italy (and much more both of them than Spain) has the status of first external border before all those who try to reach European territory in their demand for a safe place, which offers them protection against the persecution they suffer. Solanes and Delipetrou describe the characteristics of the situation experienced by Greece in this immediate period and emphasize not only the objecti-

Preface

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ve difficulties but also the legal and technical problems that Greece has had to deal with, particularly following the ECHR judgment in the case of MSS v Belgium and Greece, which also brought to light the shortcomings of what we know as the “Dublin System”. In that analysis, I find it especially noteworthy the study of the role played by the media, which I hope will be the subject of a PhD thesis or a more specific research project, as part of the real battle being fought in Europe on the duty of the rights’ protection (and not only of refugees and immigrants) is fought in that field and by those agents.

I will add that chapter five, which the authors of the book dedicate to examining this kind of odd legal “creation”, the Agreement between the European Union and Turkey of March 18th 2016, the first anniversary of which has just been marked, is a relevant incentive to encourage the reading of the book, and not only by the experts in Asylum Law but, I would dare say, by anyone who wants to take the status of European citizen seriously.

Javier de Lucas Director of the Institute of Human Rights, University of Valencia

1. Introduction The present investigation’s main objective is to explain today’s situation in Greece regarding the refugees, not by following its common interpretation as a crisis, but approximating it systematically. Beginning through an examination of the European Union’s theoretical goals, one soon realizes the distance between the original expectations and the disappointing reality. The subject, being extremely urgent and ongoing, does not permit a final conclusion; yet, an effort is being made to comprehend the constant collapses of the methods followed and initiatives taken by the European Union to the supposed end of a Common European Asylum System (hereafter: CEAS) —the latter almost becoming some sort of an urban legend instead of reality—.

The CEAS has been repeatedly presented in an idealized way, through a series of analyses which do not correspond to actuality, above all because its elements are absent1.

After the necessary definitions from antiquity to the international law, asylum is examined in relation to the CEAS. The latter consisted of short term measures, among which the determination of the State responsible for the examination of an asylum application, the procedural common standards, or the minimum reception conditions. The measures spoken of were its first stage, while the second was based in long-term aspirations, in accordance with the values of equality and solidarity. A parallel examination with the Regulation (EC) No 343/2003, mostly known as “Dublin II” goes next, since the latter, apart from being a reference —a negative one— on asylum policies

1

This work has been carried out within the framework of the project I+D+I DER2015-65840-R (MINECO/FEDER). “Diversity and Conviviality: human rights as guidelines for action” of the Ministry of Economy and Competitiveness and the European Regional Development Fund. The project is partly dedicated to specific groups feeling threatened or discriminated against in times of economic uncertainty and ethical disagreement. Within the above framework, there is a focus on the rights of foreigners, with a special attention regarding asylum seekers and refugees. Therefore, both the CEAS and the case of Greece have served as an indispensable part of the project’s investigation.

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Ángeles Solanes Corella - Danai Delipetrou

all around the European Union (hereafter: EU), marked the transition from the CEAS’ first phase to the second one.

To continue the analysis, it was indispensable to connect the gap between theory and practice within the EU with today’s inefficiency within the Hellenic State. To that end, the method used was the double functioning of jurisprudence; a series of judgements against Greece —and a few more States— were indicative of the unsuitable situation for refugees in the State in question. The well-known case of M.S.S. versus Belgium and Greece not only pointed out the reasons behind Greece being an unsafe State, but it also founded a whole new set of arguments to defend the Dublin System’s inefficiency. The supplementary functioning of the Third Chapter is to demonstrate the reasons that further deteriorate these past years’ arrivals of refugees in Greece. Had Greece been a decent State to receive refugees, the plethora of refugees reaching is territory would still cause preoccupation and measures would need to be taken; however, the a priori insufficiency of the State and its institutions only makes matters worse, in ways that are more easily understandable after the Second Chapter’s reasoning.

All the above lead to the Fourth Chapter, which serves as an intent to schematize numbers and statistics related to —principally, but not exclusively— the Syrian refugees arriving to the Greek coasts after putting their lives in danger, passing through the so-called “death routes” in order to escape their own territories’ conflicts, where their eventual death was even more probable than the peril of drowning in the Mediterranean Sea. When the situation reached is apogee, both because of the incredibly high number of deaths and the number of arrivals, disproportional to the islands where they principally arrived, a change was mandatory. Nonetheless, the deal between the EU and Turkey that was applied after March 20th 2016 and marked said change, is not only considered a non-helpful measure, but has been characterized as an absolutely illegal one. The arguments behind mentioned thought, as well as the Schengen Area’s and FRONTEX’s part on the matter will also be investigated in the second and third subchapter of Chapter 4.

The final three subchapters of this Fourth Chapter are dedicated to the part of the Media. After searching for the basic points that

Problems and Proposals regarding the Common European Asylum System

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connect the Media with Human Rights whatsoever, the investigation will center on the Media’s point of view regarding refugees in concrete, placing the research on the flows entering Europe these past few years. Moreover, there will be an intent for some sort of explanation on the Internet’s de facto institutionalization, substituting both the competent authorities and the persons’ physical presence. A few explanatory examples will be presented, mostly regarding the power of online campaigns, whose objectives may vary; from the mere sensibility and awareness to financial support through online donations. As most matters, which appear and develop abruptly, the social media’s protagonism in the refugees’ drama could not come without consequences. Those last parts are precisely dedicated to these consequences, which can only be avoided if a certain limit is set to the social media’s dominance.

The final Chapter is dedicated to the Agreement between the EU and Turkey, which was publicly communicated on 18 March 2016 and eventually applied after the 20th of March 2016. Said Agreement soon created a series of consequences, since its illegal character was remarked right away by Greek and international public and private entities.

A crucial backlash was that of the former reception centres that were turned into detention centres. This very change led to the chain reaction of a suspended or redefined/subtler presence by the NGOs within Greek islands. This was a decision justified by the organizations’ need to demonstrate their opposition to the existence and functioning of detention centres —position which could not be demonstrated if they acted as much and as intensely as they did pre-deal—.

As one can imagine, the NGOs’ abstinence was noticeable, to say the least. The conditions within the facilities in question were inhuman. The arbitrary stay of the persons arriving to them was made unbearable due to the lack of information and the horrendous hygiene conditions within the —extremely limited— space they stayed in.

The extreme cold, very rare for Greece’s usual weather conditions, added yet another obstacle to the persons’ survival. The images that came out to the press in January 2017 showed the tents in the islands’ centres being practically buried into the snow. The temperatures were below 0 in a State that does not even provide a highway adjusted to potential snow —let alone the formerly abandoned buildings with no heat or even a decent reformation—.

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Ángeles Solanes Corella - Danai Delipetrou

Investigating on a topic as current as the refugees is essential, yet, at the same time, it can be challenging. Writing about an actual and ongoing issue always carries the risk of unintentionally omitting information. This could be, among other reasons, due to the great amount on information within a short period of time, the unstableness of the matter and the uncertainty of the future. Added to that, the awfully large number of primary sources, as recent as a day before these words are being written, and the press releases substituting actual bibliography on subject such as the attempted coup in Turkey or the eventual fate of the EU-Turkey deal. Nonetheless, we consider the recording of events along with their legal and critical analysis to be urgent. Information, knowledge and awareness on refugees will not magically save their lives. However, we do hope it all leads to consciousness on a reality not that far away from us, so that there is a gradual improvement in line with and through human rights —hopefully before the world gets to say: “no more Aleppos”—.

2. National policies and the intents of harmonization to the right of asylum It would not come as a surprise —but rather as a subtle irony, given today’s situation— that the etymology of the term “asylum” is Greek. The word ἄσυλον1means the right to inviolability and, literally, it referred to a sacred and inviolable space —a shelter— which ensured complete freedom of movement. No control or third parties’ invasions were allowed in it without previous authorization2. In Ancient Greece, the concept of asylum was primarily connected to religion. A major part of this interpretation can, of course, be explained by the fact that Greek Gods represented much more than religion; that is to say, they were supposed to control physical phenomena, be in charge of war and peace, as well as political and territorial construction.

According to this scheme, asylum began from the Sanctuary per se, dedicated to a God or Goddess and it might extend to the whole polis where the Sanctuary was located3.

Today, national policies are far from this initial model, given that the emergency Europe is in and the migration flows arriving on a daily basis, form an exceptional case which calls for extraordinary measures. Thus, each State forms its own de facto asylum policy, which is not always in accordance with the supposed intents of harmonization.

For example, Austria’s Minister for Foreign Affairs and Integration, Sebastian Kurz, recently declared that the immigrants attempting to illegally enter Europe through the sea should not be given the opportunity to apply for asylum. He mentioned that anyone entering a boat and going through this illegal route is destroying their own chances

1

2 3

Pronounced “ásȳlon”, a compound word: α (without) + συλάω-ῶ (plunder or foray). See Λεξικό της κοινής νεοελληνικής, available in http://www.greek-language.gr/ greekLang/modern_greek/tools/lexica/triantafyllides/search.html?lq=άσυλο&dq [access: 02-12-2016]. ΜΑΤΑΚΙΑΣ, Αργύρης, Λεξικό Εννοιών, Pelekanos Books, 2014, p. 194.

GAGARIN, Michael, The Oxford Encyclopedia of Ancient Greece and Rome, Oxford University Press, 2009, p. 208.