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PRO ASYL/RSA: Last Exit Strasbourg – After the verdict of the highest administrative Greek court the legal dispute continues

The highest administrate Greek court, the Council of State confirmed in a judgment published on 22 September, the decisions of the Appeals Committees according to which Turkey is a “safe third country”. On these cases the court considered the appeal of two Syrians who had been found inadmissible on both instances examination.

The legal team of RSA represented one of the plaintiffs. Since the entry into force of the EU-Turkey deal in March 2016, no refugee from Syria has been deported on the basis of a decision that Turkey is a “safe third country”. This is due to great effort of the Greek lawyers who assist the refugees in an unfair, so-called admissibility procedure. They are defending the right of asylum in Europe on behalf of all Europeans.

With an ultra-thin majority of 13 votes to 12, the 25-member panel of judges also failed to submit a preliminary question on the interpretation of the “safe third country” regulation to the European Court of Justice in Luxembourg. A hint of how great the doubts were in the judges’ college and above all how politicized the question of the EU-Turkey deal is. The Athens judgment now sets a threatening precedent for many other refugees who are currently stuck on the Greek islands. They are threatened with deportation to Turkey.  However, the legal dispute is not yet over. The lawyers of the PRO ASYL partner organisation Refugee Support Aegean (RSA) and other organisations are now preparing lawsuits to the Strasbourg Human Rights Court.

In a dissenting vote, the vice-president of the Council of State expressed emphatically his lack of confidence in sources presented to justify the alleged security of those seeking protection in Turkey. In view of the violation of fundamental rights, the lack of judicial independence, the massive restriction of freedom of opinion and the freedom of the press, the lack of guarantees of the rule of law for opposition in Turkey, he concludes: “The assurances given by the diplomatic authorities of this country,… have no credibility”. He complains that it has not been investigated whether and how refugee protection legislation has been implemented in Turkey in practice. Reports from independent consular authorities, academics, journalists and independent non-governmental organisations on the way in which this legislation is actually applied have not been included in the judgment.

Since the publication of the verdict, the fear and desperation of deportation in overcrowded Greek hot spots has become even greater. Still the legal dispute continues even after the Council of State judgment – In order to prevent deportation “Rule 39” (interim measures) is available as an emergency measure of the European Human Rights Court.

Furthermore it is still completely open whether another Greek court could present another preliminary questions regarding the “safe third countries” regulation in the EU Asylum Procedures Directive to the Luxembourg Court of Justice (ECJ).

The dissenting opinion of the 12 judges of the Council of State offers various clues how to pursue this. They wanted to put the following questions to the Luxembourg Court of Justice:

Does the geographical limitation to the Geneva Convention on Refugees contradict Turkey’s classification under European law as a safe third country?

Supposing that a country signed the Geneva Convention with the above-mentioned geographical limitation, can then be considered safe under Article 38 of the Asylum Procedures Directive if its legislation only provides for access to “temporary protection ” status for applicants?

(i) if this status is granted without independent consideration of each individual case and excludes the refugee from obtaining any other protection status (e. g. refugee status or subsidiary protection) under that status;

(ii) if in accordance with the legislation of that country, this temporary protection may be terminated by a general decision of the Executive Board.

Is it necessary that a country be designated as a safe third country in accordance with Article 38 (1) (and in particular point (e) of the EU Asylum Procedures Directive), after it recognises in its legislation all rights and entitlements and that it protects in practice the rights and entitlements granted to refugees under the Geneva Convention (Articles 3-34)? Or is it sufficient that only certain rights and claims are recognised and effectively protected? If so, which ones?

PRO ASYL and RSA state: Turkey is not a safe third country for refugees. They do not receive permanent protection status, nor the rights and entitlements foreseen in the Geneva Convention for refugees. Turkey does not respect the principle of non-refoulement. European and international law prohibits the return of refugees to Turkey.

The text appeared first in German here.

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