Human Rights

Politics & The World

On 20 March 2016, the siblings Javid and Nahid Raoufi and their friend Abdul Majid Rahimi arrived on the Greek island of Chios after having fled Afghanistan via Turkey. Upon arrival, they were detained in the so-called „Hotspot“ of Vial, an EU-initiated registration facility for asylum seekers converted into a detention centre. There, they had to endure abhorrent detention conditions: neither did they have access to medical care nor was the food sufficient or of acceptable quality. The sanitary conditions were appalling, with frequent cuts in water supply and extremely dirty toilets and showers.

Their story is not only one about personal suffering, but about the EU abandoning its commitment to human rights and international protection in the name of migration control. The day Mr and Ms Raoufi and Mr Rahimi reached Chios, the EU-Turkey statement of 18 March 2016, known as the EU-Turkey Deal, entered into force. It declares that any irregular migrant arriving on the Greek islands from Turkey will be sent back. This includes asylum seekers with inadmissible or unfounded claims. In exchange, the EU promised to resettle one Syrian from Turkey for every Syrian returned and to put in place a humanitarian scheme to take in more Syrian refugees from Turkey. The EU furthermore pledged to provide 6 billion € to support Syrian refugees in Turkey and to allow Turkish nationals visa-free entry into the Schengen Area. It is probably not very contentious to state that deporting asylum seekers to a country which hosts 3 million refugees, is mired in civil war and governed in an increasingly authoritarian fashion can hardly be considered a policy of providing international protection in a spirit of solidarity. What is more, the implementation of the deal raises serious questions as to its compliance with human rights and EU asylum law.

At Vial, Mr and Ms Raoufi and Mr Rahimi claimed asylum and on 19 April they filed a complaint with the European Court of Human Rights. They claim that they had not been informed of the reasons for their detention, that their detention was arbitrary and that they did not have access to legal aid or representation. Greek law allows for the detention of asylum seekers of up to 25 days with a possible extension of up to 3 months. The current policy appears to be to detain anybody arriving irregularly on the Greek Aegean islands for 25 days and then to release them with a restriction order, limiting freedom of movement to the island concerned, but the three claimants have been detained for longer. The complaint also alleges that the detention conditions at Vial amounted to inhuman and degrading treatment. The claimants’ reports in this regard have been confirmed by NGOs such as Human Rights Watch: In both the open and the detention sections of the “Hotspots”, extreme overcrowding forces people to sleep on the floor and in small tents. The hygienic conditions are extremely poor, with toilets overflowing and feces covering the surrounding floor. Medical care is either absent or insufficient and asylum seekers report frequent violent clashes and high levels of sexualized violence and harassment, which the Greek authorities did not provide protection against. Frequently, women, families and unaccompanied minors are not provided separate accommodation.

This state of affairs violates EU asylum law and the European Convention on Human Rights in multiple ways. Under the EU Reception Conditions Directive, detention of asylum seekers must be based on an individualized assessment. It may be applied only if a less coercive measure would not be adequate and if it is necessary and proportionate to achieve a legitimate aim. The policy to automatically detain all asylum seekers violates these requirements. Furthermore, both the EU Reception Conditions Directive and the European Convention on Human Rights require that detainees must be informed about the reasons of their detention and be granted the possibility to challenge its legality before a judge – this did not happen in the case of Mr and Ms Raoufi and Mr Rahimi. Unfortunately, this seems to be the norm rather than the exception.

Furthermore, the European Convention on Human Rights prohibits inhuman and degrading treatment; the EU Reception Conditions Directive grants asylum seekers an adequate standard of living which guarantees subsistence, protects mental and physical health and, in any event, covers basic needs. The European Court of Human Rights has repeatedly held that detention conditions in Greek detention facilities for asylum seekers amounted to inhuman and degrading treatment – the claimants had been detained in overcrowded facilities under appalling hygienic conditions, without access to showers or clean toilets. Judging by the complaint of Mr and Ms Raoufi and Mr Rahimi as well as NGO reports, EU funding and support have not prevented the same deplorable and illegal detention conditions from materializing in the „Hotspots“.

Besides the illegality of the detention practice, the plan to return asylum seekers whose application is declared inadmissible to Turkey raises serious legal issues. This part of the deal is applied via admissibility interviews on the basis of which the Greek Asylum Service determines if Turkey is a safe third country or a first country of asylum for the interviewed asylum seeker – the logic being that a person for whom this is the case can avail themself of protection in Turkey.

For a country to be a safe third country under the EU Asylum Procedures Directive, there may neither exist a risk of persecution nor of serious harm, e.g. through torture or armed conflict. Furthermore, there must be no risk of a further deportation to a situation where such risk exists and there has to exist the possibility to apply for refugee status and to receive protection in accordance with the Geneva Refugee Convention. For a country to constitute a first country of asylum, the applicant must have been granted refugee status or enjoy an otherwise „sufficient protection“ in that country. It seems logical to assume that the requirements for such sufficient protection should be as demanding as they are with regard to the safe third country standard.

As of 15 June, the Greek committees that decide on the appeals against inadmissibility decisions of asylum claims have denied that Turkey is a safe third country in 70 out of 72 cases. This is because there are NGO reports about mass expulsions of asylum seeking Iraqis and Syrians to their countries of origin from Turkey as well as about violent rejections of asylum seekers at the Turkish borders. Furthermore, the committees doubt that the temporary protection status which Syrian refugees are granted in Turkey amounts to protection in accordance with the Geneva Refugee Convention, as it is often only granted with unacceptable delays, does not allow for access to the labour market and is only of temporary nature. Non-Syrians can obtain a „conditional protection“ status – however, this hardly seems to be applied in practice. Against this backdrop, returns to Turkey cannot be considered safe, although the Turkish government has provided assurances that deported Syrians will be granted temporary protection and that other returned persons will be protected from deportation to a situation where their life or liberty would be at risk. The appeals decisions demonstrate that the Greek institutions are capable of providing an independent scrutiny of the deal’s implementation. But as they call into question the entire scheme, they also put the Greek administration under enormous political pressure to overcome this obstacle to a smooth execution of the deportations.

The EU Commission maintains its assessment that Turkey is a safe third country and that the temporary protection available to Syrians amounts to protection in accordance with the Geneva Refugee Convention. It welcomed a recent reform which changes the composition of the Greek appeals committees and scraps a second hearing before the appeals decision – ostensibly to speed up proceedings. Most commentators however fear that the recomposition of the committees will undermine their independence; in an open letter, members of the previous appeals committees accused the Greek Migration Ministry of recklessly trying to clear the way for mass deportations to Turkey.

Hence, the implementation of the EU-Turkey deal violates EU asylum law and the European Convention on Human Rights in multiple ways: with regard to the legality of the detention of asylum seekers in Greek „Hotspots“, the appalling detention conditions and the assumption that asylum seekers can safely be returned to Turkey. This has not hindered the deal’s implementation, although article 2 of the Treaty on European Union declares respect for human dignity, human rights and the rule of law to be amongst the EU’s founding values. The EU and its member states seem content to betray their values, as long as this brings down the arrivals of asylum seekers at their shores. It is people like Mr and Ms Raoufi and Mr Rahimi who bear the cost. Ms Raoufi reportedly intented to commit suicide twice since being detained.

 

 

Simon Rau also published this article already in March on the Mercator Blog: https://nefia.org/blogs/Simon-Rau/The-implementation-of-the-EU-Turkey-Deal-betrays-European-Values

A Diary From the Eastern FrontSpecials

by Phil Rambousek, Mariupol.

The next day, we woke up at 7 AM, only to find that the Right Sector fighters had already managed to take of personal hygiene, worked out, and finished breakfast. By the time we came downstairs, they were lounging around, chain-smoking and joking around. We got a bowl of dry buckwheat porridge and a pickle for our breakfast but, alas, no tea, as it was wasteful to make just a single cup, they said. When you cook for a battalion, I suppose you think exclusively in battalion-sized amounts and portions.

DSC_0075We rejoined the soldiers just in time for their muster. They began by collectively praying, and followed this by taking turns in announcing points on the day’s agenda. We were surprised that even a regular lowly soldier was awarded the space to step out and tell everyone- including the officers- their concerns or suggestions. The most important message of the day was that a trip needed to be organised to a pharmacy to organise some mandatory x-rays for a few soldiers to pass their medical requirements.I had not expected such a degree of care for the individual soldier from this grizzled unit.

We spent the morning hanging out, and serving as the butts of many of their jokes, recording many interviews but -again- not taking any photos. At noon, a squad was heading to the front to resupply their comrades, and they offered to give us a ride back to Mariupol. About fifteen of us squeezed into a small van intended for about eight, and with the sliding door open, we sped down the cratered dusty roads, dodging tank traps and overtaking anyone who may dare to challenge our pace. I was convinced that this was it; I would die, falling out of a Right Sector minivan and impaling myself on an anti-tank hedgehog, before I even made it to the front line. Needless to say, nobody bothered us at checkpoints this time.

We arrived in Mariupol and found out, to our despair, that our trip to the front line had been yet again postponed to the following day. Slightly depressed, we checked into the best hotel in the city, paying £8 pounds each, and proceeded to arrange meetings with a few local activists. We also explored the city, and found that Mariupol, a city of some five hundred thousand, has a fascinating history and cultural makeup. Like many towns around it, it has a sizeable Greek population, which was forcibly moved to the area from the Crimea in the late seventeenth century. There is a local Greek dialect, and overall, association with Greece is a big part of the local identity.

In 2014, Mariupol was also conquered by the Russian-backed separatists and remained under their control for about two months. Little changed under the rebels, we were told, and one journalist told me he didn’t even see a single rebel soldiers in that period. There were minor skirmishes in the centre of the city which, likewise, went pretty much unnoticed by the locals. The situation became more serious however when, in the summer of 2015, the city became an obvious high priority target for the rebels. If it were conquered, the Russians would be able to maintain a land bridge to the Crimea. As a result, the front line around Mariupol became heavily fortified.

DSC_0049Perhaps the most interesting encounter of our stay there was a meeting with a local LGBT rights activist. Her take on the situation was entirely different than the right-wing soldiers’ and other patriotic activists we had met so far. As a bisexual refugee from Donetsk, she told us that she ticks almost all possible minority categories, and said that her mission is to make sure that people like the Right Sector understand that while they fight for freedom, this freedom also entails tolerance for people like her. This is a crucial time, she said, when differences between those who are simply Ukrainian patriots fighting against Russia, and those who began the revolution by wanting to move the country in a civilised, Westwards direction, begin to emerge. She argued that to make the conservatives understand this, action is needed sooner, rather than later, and told us that one of her methods is attending the right-wing soldier’s parades and gatherings draped in a rainbow flag, an act for which she would surely be beaten, were she a man.

We were surprised by how interesting we found our debate with her and her friends, and realised how limited and military-heavy our approach had been so far. In focusing exclusively on the soldiers- whether regular or volunteers- and those activists that spend their time supporting them, we had ignored the reason why the Maidan revolution had occurred in the first place- the strive to move close to Europe and the West, and, at least partially, to their values of liberalism and respect for human rights.  We went to sleep in the early hours enriched by this experience and also excited, because we were resolved to dodge past any bureaucrat, like the Right Sector van, who might try and stop us from finally getting to the front lines.

Politics & The World

by Matthias Hasler

Security and privacy – never have we been made more aware of the alleged conflict between these two concepts than nowadays. The digital age and the ongoing shift of social activity from the real, tangible to the virtual level have catered for a situation where the personal freedom of privacy is more exposed to abuse than ever before. While the internet has set a venue for the creation and circulation of personal data, the terrorist attacks in New York, Madrid, London and recently Paris have provided a welcome justification for politicians around the world to exploit this venue. For our security. The common public good.

But can governments legitimately claim to pursue the common public good when this comes at the expense of what we consider the constitutional basis of Europe’s post-war order? Can governments simply evade one vital pillar of contemporary democracy – fundamental human rights – for the sake of security? Two recent examples of EU legislation demonstrate how indifferent the EU legislature and the governments of the Member States apparently are towards a fundamental rights legacy which has evolved out of the unprecedented destruction and suffering of two world-wars. It seems to be in this context that other actors become active – or to put it differently – that other actors need to become active as there is no one else left to do the job: The citizens of the EU.

In 2006 the EU adopted the so-called Data Retention Directive. It allowed for the retention of various data generated by individuals through the use of electronic communication services and networks for up to two years “for the purpose of the investigation, detection and prosecution of serious crime”. Thereby it did not distinguish between suspects or non-suspects. Neither did it specify who and under which conditions may use and access the data. The opportunities to abuse the data for objectives other than the prevention of terrorism and serious crimes therefore loomed large.

Already in the policy-making process leading to the adoption of the Directive, 90 NGOs and 80 telecommunications service providers urged the European Parliament to reject the proposal. According to them, the indiscriminate manner in which data were to be retained amounted to “treating the use of communications infrastructures as criminal activity; just in case that it may be of use at some point in the future by countless agencies in innumerable countries around the world with minimal oversight and even weaker safeguards”. Needless to say, the European Parliament nevertheless approved of the proposal and the Data Retention Directive duly entered into force in March 2006.

It became one of the most disputed and controversial EU counter-terrorism measures and the European Data Protection Supervisor (2011) called it “without doubt the most privacy-intrusive instrument ever adopted by the EU in terms of scale and the number of people it affects”. The EU institutions and the Member States, however, did seem to readily accept this as the lesser evil when it comes to protecting national security.

It was not until 2013 that the NGO Digital Rights Ireland, joined by a large number of Austrian applicants was able to bring the matter before the European Court of Justice. What has been already clear for most commentators, became a legal fact when the Court declared the Directive invalid in early 2014. It did so, unsurprisingly, for reasons of its particularly serious and unproportional interference with the fundamental rights to respect for private life and to the protection of personal data, enshrined in the Charter of Fundamental Rights of the EU. What is particularly troublesome is that no EU institution and no national government made any efforts whatsoever to strike down this EU measure, although it was fairly clear amongst legal circles that the Data Retention Directive was in breach of the EU Charter of Fundamental Rights.

This indifference on the part of EU and national politicians towards privacy and data protection is not coincidental and has been proven once again very recently. At the latest since the revelations made by Edward Snowden it should be clear to every decision-maker in Europe that the US does not ensure an adequate protection of personal data. Finding a statement that the United States sufficiently protects personal data which is generated in communication networks not credible at all, is not particularly daring against this background.

However, just such a statement – designating the US as safe data processor – has persisted until the 6th of October 2015 within the Commission’s US Safe Harbour decision. Despite the fact that Edward Snowden had already started to systematically reveal precisely how unsafe our data is in the hands of the US National Security Agency from early June 2013 onwards. Apart from some cautious statements of indignation by some senior European politicians nothing much has happened in response to Snowden’s revelations. The Commission’s US Safe Harbour decision, dating back from the year 2000, remained unchallenged. Neither a government, nor any institution of the EU has dared to change this.

Once again it had to be on the initiative of a citizen, in this case the Austrian Maximilian Schrems, that the European Court of Justice was finally able to declare the Safe Harbour decision invalid on 6 October 2015. Just as it was the case for the Data Retention Directive, the Court considered the Commission decision as serious and unproportional interference with the right to privacy and the protection of personal data, since once transferred to the US, the personal data generated in Europe was subject to wide and almost unrestricted access and use by the NSA.

In the light of these developments it becomes unequivocally evident how crucial citizen’s involvement is nowadays to preserve the integrity of our fundamental rights legacy. Where governments and the EU legislature are too easily prepared to trade in our privacy for some remote and weakly proven law enforcement benefits it is ultimately on us to act. Only us. Sadly enough, given the EU’s and its Member States’ openly and proudly presented dedication to democratic values. However, such democratic values quickly transform into barriers rather than traits when politicians seek to pursue security interests. The area of data protection is certainly not the only policy domain that is affected by this trend.

It is civil society – and in the last instance, ourselves  – who needs to remind them constantly and insistently that what they consider as barriers are the very foundations of Europe’s existence in the post-war era. As such these values are worthy of rigorous  protection, come what may.

 

Image by Timberland Regional Library, taken from flickr