By Annick Pijnenburg, PhD researcher at Tilburg University
25 January 2018 is a date to remember for European refugee lawyers. In Luxembourg, the Court of Justice of the European Union ruled in Case C-473/16 that an asylum seeker may not be subjected to a psychological test in order to determine his sexual orientation. At the same time, in Strasbourg, the European Court of Human Rights issued its judgment in the case of J.R. and Others v Greece (application 22696/16), the first one in which it deals with the implementation of the so-called EU-Turkey Statement. The Court’s judgment in J.R. and Others sparked the concern of NGOs, who argue that it ‘gives legitimacy to conditions in hotspot and detention’ under the EU-Turkey Statement. This blog post examines whether J.R. and Others indeed legitimises it and, more generally, what (if any) the implications are for the EU-Turkey Statement.
The applicants are three Afghan nationals: Mr J.R., his sister, Ms N.R., and the latter’s boyfriend, Mr. A.R. Together with the two children of Ms N.R., they fled Afghanistan and arrived on the island of Chios on 21 March 2016, a day after the entry into force of the EU-Turkey Statement. They were arrested and placed in the ‘Vial hotspot’, a migrant reception, identification and registration centre in a disused factory. They applied for asylum in April and remained in the Vial Centre until September 2016 (J.R.) and November 2016 (N.R. and A.R.).
Between 21 March and late April 2016, after the entry into force of the EU-Turkey Statement, the centre had to cope with large numbers of new arrivals, bringing the total number of occupants to over 2,000 – more than double its capacity. The overcrowding entailed poor living conditions: there was insufficient food, a lack of hygiene, the water supply was often cut off, and medical care and legal assistance were scarce.
Findings of the Court
The applicants complained under Article 5(1) about the conditions and length of their detention in the Vial Centre, under Article 5(2) that they had not received any information about the reasons for their detention, and under Article 3 about the conditions of detention.
As regards the admissibility of the complaints under Article 5, the Court first established that on 21 April 2016 the Vial Centre had been converted into a semi-open centre which enabled the applicants to go out during the day. Therefore, their detention in the centre between 21 March and 21 April amounted to a deprivation of liberty, whereas after that date they were subject only to a restriction of movement (para. 86). The complaint concerning the period after 21 April was therefore declared inadmissible (para. 87). The Court also rejected the Greek government’s preliminary objection to the effect that the applicants had not exhausted all domestic remedies, as it found that the applicants had not had access to them (para 103).
On the merits, the Court found no violation of Article 5(1) because the applicants’ detention had not been arbitrary and could not be regarded as ‘unlawful’ within the meaning of Article 5(1)(f) (para. 116). It reasoned that they had been detained with a view to their deportation, the aim being to prevent them from remaining in Greece unlawfully and to identify and register them as part of the implementation of the EU-Turkey Statement (para. 112). The Court further noted that the applicants’ deprivation of liberty was based on section 76 of Law no. 3386/2005 and was intended first of all to guarantee the possibility of their removal, that a detention period of one month should not be considered excessive for the purposes of the necessary administrative formalities, and that the applicants had been released one month and ten days after expressing their wish to apply for asylum (paras. 113-115). It found, however, that there had been a violation of Article 5(2) because the content of the information leaflet which they had allegedly received did not provide them with sufficient details about the reasons for their arrest or the remedies available to them (para. 124).
As regards Article 3, the Court noted that the facts in question occurred at the time of an exceptional and sharp increase in migratory flows in Greece, which had created organisational, logistical and structural difficulties (para 138). Although various reports partly confirmed the applicants’ allegations of overcrowding and poor living conditions (paras. 140-142), the CPT had not been particularly critical of the conditions prevailing in the centre, especially as regards the aspects that could have concerned the applicants’ situation (para 144). Moreover, neither the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) nor the NGO reports provided information about the alleged overpopulation of the Vial Centre (para. 144). Last, the Court noted that the applicants’ detention had been short (30 days) and that the threshold of severity required for their detention to be characterised as inhuman or degrading treatment had not been reached (para. 146). It therefore found that there had been no violation of Article 3.
Generalisability of the findings
What does J.R. and Others tell us about the legitimacy of the Greek hotspots? Can the Court be said to endorse the EU-Turkey Statement? Can we expect the same finding in other ‘hotspot cases’? Probably not. The Court had to decide if there had been a violation of the Convention in this specific case, not rule on the legitimacy of the EU-Turkey Statement in general. In fact, the particular circumstances of this case are such that it tells us very little about the compliance of the hotspots with the Convention.
First, the Court took into account the brevity (one month) of the applicants’ detention (paras. 114 and 146). However, as the EU-Turkey Statement is approaching its second anniversary, many asylum seekers have by now been detained for much longer, which may change the Court’s reasoning in later cases, including where the centres are semi-open. Likewise, it emphasises that Greece faced a situation of emergency at the time the EU-Turkey Statement was implemented (para. 139). It also referred to the Grand Chamber’s statement in Khlaifia and Others v Italy that it had to ‘bear in mind, together with other factors, that the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time’ (para. 143). Whereas the applicants in J.R. and Others arrived at the very moment the Statement was being implemented, it is doubtful that the Court would find that the context of ‘an exceptional and sharp increase in migratory flows in Greece’ (para. 138) would last for almost two years. In other words, in another case, dealing with living conditions in the hotspots at a more recent date, the Court might be less lenient.
Furthermore, when assessing the living conditions in the Vial Centre, the Court relies heavily on reports by Council of Europe bodies (CPT, Special Representative of the Secretary General on Migration and Refugees), NGOs (Human Rights Watch, Greek Council for Refugees) and UN bodies (the Office of the UN High Commissioner for Refugees and the UN High Commissioner for Human Rights intervened as third parties), as well as the Greek National Commission for Human Rights. A different case, involving a different hotspot and relying on other reports, might however lead to a finding that the living conditions do meet the threshold of inhuman and degrading treatment in Article 3 ECHR. A recent report by the Danish Refugee Council for instance concludes that ‘the cumulative effect of overcrowding, inadequate reception conditions, limited access to healthcare, lack of information, delays in the asylum procedure and lack of support for vulnerable asylum seekers at the Moria centre amount to inhuman and degrading conditions’. In short: the Court did not find a violation of Articles 5(1) and 3 in this case, but this does not mean that it will come to the same conclusion in another case (and vice versa regarding Article 5(2) of course).
Implications for the EU-Turkey Statement
What does J.R. and Others tell us about the EU-Turkey Statement more generally? This is a key question, especially as in the cases T-192/16, T-193/16 and T-257/16 the General Court of the EU ruled that it did not have jurisdiction over the EU-Turkey Statement (although an appeal is pending before the Court of Justice): if Luxembourg does not provide any answers, maybe Strasbourg does? In J.R. and Others the Court refers to ‘an agreement concluded between the Member States of the European Union and Turkey’ (para. 7) and to ‘the members of the European Council and the Turkish government [which] agreed on a declaration’ (para 39). In other words: Strasbourg follows Luxembourg in holding that the agreement was concluded between the EU Member States (rather than the EU or its institutions) and Turkey. Furthermore, whereas the Luxembourg court leaves unanswered the question whether the agreement is a political statement or a measure capable of producing legal effects (see Case T-192/16, paras. 71-72), the Strasbourg court refers to an agreement (‘accord’ in French), although it does not say anything about its legal nature. In sum, J.R. and Others (predictably) doesn’t tell us much about the nature of the Statement.
Does J.R. and Others have any other implications for the EU-Turkey Statement? Hardly. The judgment can be read as endorsing the Statement insofar as detaining migrants in order to identify and register them as part of the implementation of the EU-Turkey Statement is in line with Article 5(1) (para. 112). However, the Court still applies the principles developed in its own case-law when deciding whether there has been violation of Articles 3 and 5 (paras. 110, 121 and 136-137). Arguably the most contentious element of the EU-Turkey Statement is the question whether Turkey qualifies as a ‘safe third country’ under Article 38 of the Asylum Procedures Directive, yet this issue is not addressed in J.R. However, other cases are currently pending in Strasbourg which raise the question whether rejected asylum seekers can be returned to Turkey (see for instance J.B. v Greece and here). In other words: the Court will have to address the EU-Turkey Statement again in future cases, which may oblige it to take a more explicit stance on its compatibility with the Convention than it did in J.R. and Others. Yet given the highly contentious nature of the EU-Turkey Statement and the high level of political interests involved, the Court can be expected to think very carefully about how it addresses those cases.
Post-scriptum: WhatsApp as litigation tool?
J.R. and Others also raises an interesting issue about the powers of attorney to be provided by applicants to the Court. Indeed, the applicants’ representative, a lawyer based in Germany, argued that the applicants could not sign the application form because they were detained on Chios (para. 67). Instead, he provided the Court with a copy of WhatsApp messages exchanged between himself and the applicants, confirming that they approved the application, a photo of each applicant taken at the Vial Centre, followed later by three handwritten letters signed by the applicants which served as powers of attorney (paras. 72-73). The Court accepted that the requirements of Article 45 of the Rules of Court were thereby met and dismissed the Greek government’s preliminary objection (para. 74). Does WhatsApp open new avenues for applicants who would not otherwise have had access to the Court?