By Konstantinos Tsitselikis, Professor, University of Macedonia
May 2020
Introductory remark
The year 2015 is associated with the continues movement of hundreds of thousands of persecuted people through Greece in pursuit of safe sanctuary and some certainty for their future. The once unhindered movement turned out to be more and more limited, until the exit route from the country was completely blocked in March 2016. Ever since, the European policies and the relevant law have been characterized by uncertainty and insecurity. Coincidence and relentless imposition of European policies cynically regulated the fate of the people, as well as divided Europe, governments and citizens.
The second refugee reception crisis, namely the one related to the Turkish army’s invasion to Syria and the withdrawal of the Americans from the Turkish-Syrian border (late 2019-present), consists a continuum of the previous one. It demonstrates the failure of the European policies, not only to intervene effectively in ending the war in Syria, but also to manage the small percentage of people who have come to the EU for help, or even for a better and safer life.
Greece is once again, due to its position, at a pivot point, this time for preventing entry according to the special regime set by the quasi Turkey-EU agreement of 2016: returns to Turkey and geographical restrictions for those entering irregularly the Greek islands. In the mainland registration and examination of asylum applications, as well as relocation within the urban areas of many Greek cities, was progressing. The only legal outlets to Western Europe for these people were the following two: relocation, which operated temporarily, and family reunification, which is applied with a dropper.
The health crisis of March-June 2020 covered over the refugee issue. Yet, closer examination of what happened to those people reveals a special treatment, not in terms of their vulnerability, but in terms of their being unwanted by the government. Further, a permanence of the state of emergency that has been going on for many years, as a distorted pattern of prevention policies.
Α. The vague limits of rights
Until recently, refugees and migrants registered in Greece constituted an ever-changing number of people. Recognition of their being would be mediated through the establishment of any type of relationship with the state. These people, hunted, in dire need, and without any security guarantees, found themselves stripped of all legal protection in a state of extreme fragility.
Refugee management processes are constantly being implemented with the increasingly direct invocation of the “state of emergency”, the “invasion of an enemy” or the foreign “who are altering European culture”. This invocation creates a condition of uncontrolled exclusion from legitimacy in response to an emergency need with which everyone must comply. As the Greek Ombudsman ascertains about the refugee crisis: “It is a well-known fact, however, that during a state of emergency, where procedures in derogation of the provisions of the standard applicable regulatory framework are applied, (these) are condoned, while rule of law rigorously is not strictly respected”.((Greek Ombudsman, Migration flows and refugee protection. Administrative challenges and human rights issues, Special Report, p. 10, at: www.synigoros.gr/resources/docs/greek_ombudsman_migrants_refugees_2017_en.pdf))
Β. From the Evros crisis to the virus crisis
The developments sparked by Turkish President Recep Tayyip Erdogan’s decision to send large numbers of migrants and refugees to the Greek border on February 28, 2020, put an end to the 2016 agreement. In fact, it turned the clock back in early 2016, when the agreement was concluded aiming to hinder the movement of people towards European metropolis.
Turkey has misused as tools the refugees, people in despair, urging them and leading them to cross the Greek-Turkish border, without prior consultation with Greece and the EU. The Greek side reacted not only by closing the borders, but also by promoting the distorted ascertainment that “the country is under attack”. The state of emergency justified the suspension of refugee law regarding first reception and the use of push backs as an allegedly legal measure of deterrence. That has been an unprecedented suspension of part of the Greek constitutional order since 1974.((K. Τσιτσελίκης, “Η εχθρική στάση της Τουρκίας και η αναστολή του προσφυγικού δικαίου από την Ελλάδα”, Hufflington Post, 6/3/2020, http://www.huffingtonpost.gr/entry/e-echthrike-stase-tes-toerkias-kai-e-anastole-toe-prosfeyikoe-dikaioe-apo-ten-ellada_gr_5e6227d5c5b601904ea8d177))
The developments in Idlib were not unrelated to what happened at the Greek-Turkish border. The invasion of the Turkish army in the area caused a reshuffle of geostrategic aspirations creating a domino effect. This reshuffle has led to the instrumentalising of migrants and refugees, already living in Turkey, as a means for exercising pressure to the EU via Greece. The forwarding of these people (to the borders) without any prior consultation with Greece violates the obligation for peaceful co-operation between states, especially when the 2016 agreement for the return of refugees from Greece to Turkey has already been signed.
Both Greece and Turkey risked the lives of thousands, through forwarding them and push backs to the river or the sea, illegal actions on both sides. Both countries invoke a state of emergency that would justify the violation of the law in a completely different content; however has not been convincing. No matter how one applies the principle of proportionality and the offerability of the means to their purpose, one cannot ignore the value of human life and disregard respect for human dignity. Thus, state sovereignty must be exercised considering the above principles.
Turkey definitely has had to manage a huge part of the migrant and refugee population, approximately 4 million people, for several years now. The 2016 agreement has been concluded with the provision of 3.2 billion euros in aid. However, Turkey has been involved in the civil war in Syria, turning it into an international one, even more occupying part of its territory. Its political responsibility changes character after the developments it has caused. Greece has suffered the consequences of this war, as well as the consequences of military operations in Afghanistan and Iraq, without any involvement at all. The refugee protection law and related policies have been applied, in a way that was not always successful, and often to the detriment of these people.
The 2016 agreement, which is fundamentally problematic, has merely provided time to the EU and Turkey: literally 4 years. Yet in the meantime, nothing has progressed regarding EU policies. The shift to authoritarianism and far-right logic in many Member States has paralyzed the EU, which shows no signs of rebuilding and policymaking in the spirit of democracy and the rule of law. Border security was rigidly prioritised, and human security was set aside.
People, in any case, become a lever of pressure, a threat, an intruder, an unwanted. In other words, they lose their human existence and from subjects become objects. Gradually, the fear that turns into hatred covers everything. Thus, a malleable political tool of control and manipulation is being formed, a seed and a feature of unfree governance. This new pattern is spreading rapidly throughout Europe, allowing anybody to “take the law into their own hands”, beating helpless people and burning the infrastructures of organizations on the frontline.
The Greek Ministerial Council has decided to suspend the asylum procedure for one month. Consequently, those entering Greece will henceforth be considered irregular and deported. However, this measure has no legal basis, as the Geneva Convention does not lay down any limits to its validity for reasons of force majeure. The suspension of refugee law is a blow to the rule of law in Greece. The immediate result was the conviction of many people to 3.5 years in prison for entering Greece illegally, while normally they would have the right to apply for asylum and receive special treatment. In fact, as no reception mechanism is available, the basics are not offered to people in need. The rest of the people were regularly deported to Turkey, without any concerns for their safety. These practices are a major blow to democracy as they have developed in recent decades in Greece and Europe.
The crisis in Evros was soon overshadowed by the COVID-19 health crisis that led to the imposition of restrictive measures until mid-May – early June 2020. The Greek-Turkish borders were closed in general to protect the general population, and the quarantine regime was expanded to various groups, focusing on the asylum seekers’ camps. The general principles of proportionality and expediency of the measures were tested, and much debate arose over the limits of legality. In the case of refugee camps, things took a special turn, with the state of emergency being extended((Υπ. Απόφαση Προς. Πολίτη, Υγείας και Μεταναστευτικής Πολιτικής, Αριθμ. Δ1Α/ΓΠ.οικ.29105 (ΦEK B 1771/2020).)) for no apparent reason for the health protection of both those inside and outside. Similarly, in structures where there were sick people, all the others in the structure were trapped with them without separation, in a model of forced spread of the disease and therefore of risk. The health crisis has thus created a convenient cover where policies of exclusion and legal uncertainty have put asylum seekers in a particularly exceptional state of deprivation of liberty and endangering. This has been another indirect measure of deterrence showing that the Greek state will continue its famous policy of “we will make their lives intolerable”.
Conclusion
The refugee crisis interconnects main constitutional issues within a democratic and lawful society. The Greek case is not to be discussed outside the European institutional and political framework. The regression of the Greek central government between “security” and “rule of law” regarding the first reception of those in need, creates confusion at the expense of the security provided by law and the refugee/asylum seekers/individuals “without papers” integration prospects. As long as the harsh exclusion lines and the constant regression between “legal” and “illegal” are not softened, both Justice and Rule of Law will continue to suffer. On the other hand, phenomena such as xenophobia and racism along with their political expressions will thrive.
Αlthough the biggest challenge for Greece as well as for the EU, is the social integration whether these people will eventually become recognised refugees or legal migrants, EU policies spent their efforts to deterrence policies and means that are proved to be inefficient and most important, to be least, if at all, in accordance to the legal European acquis.
However, Greece is part of a network of policies and law on refugees and migrants that is based on the principle of solidarity between EU member states. This principle, namely the provision of assistance and the distribution of burdens, has worked for two or three years. and then collapsed, trapping thousands of people in Greece without being able to relocate to another European country. It seems that the principle of solidarity is depleted in sending European border police-military surveillance teams to Greece.((European Commission, Frontex and the Rabit operation in Greece, Memo, 2/3/2020 http://ec.europa.eu/commission/presscorner/detail/en/MEMO_11_130)) Ignorance of the principle of solidarity regarding the distribution of the burden of migration-refugee issue mainly affects the EU itself, as it remains unable to manage migration and refugee flows centrally and in an organized manner. The shortcomings of the central European policy to deal with the refugees are not limited to a management level. It is deeply political as it legitimises alternative, self-righteous policies, hoping either for the European border closure (e.g. Hungary) or an exit from the EU (like Brexit) through a rhetoric of fear and chauvinism. The Greek case shows that these policies are now well established. Τhe insecurity of law provoked by an intense volatility of the law, as well as the EU and Greece policies ,gradually become a state of normality, while the security of the law is the exception. The joint EU-Turkey statement endangered dramatically the European integration itself, its own statutes and political goals, which are increasingly fading, as it is the Justice and the Rule of Law. The border crisis of February 2020 between Greece and Turkey showed the fragile limits of the whole system. Soon after, the coronavirus crisis (by the beginning of March 2020) reshaped at global dimensions the patterns of restrictions to human mobility. Suddenly, the refugee-migration crisis was silenced. However, it was incorporated into the special measures and restrictions imposed on asylum seekers through the mechanism of the state of emergency, deepening the rifts in the European edifice of the rule of law and human rights.
