Onur Atakan of Turkish progressive lawyers about EU-Turkey refugee deal

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Speaker Onur Atakan- progressive Lawyers Association Turkey

Speech of Onur Atakan, representative of the Progressive Lawyers Association of Turkey at international lawyers conference in Lille, France at 23-24 september 2016 about the EU-Turkey refugee deal. 

“I will share our experience and observation about the refugees in Turkey and why Turkey is not a safe country in terms of the agreement signed between the EU and Turkey. Problems start with the law which assigns different status for foreigners. The law does not provide adequate safeguards against arbitrary treatment. The government agencies categorize immigrants in their sole discretion. Moreover, immigrants in Turkey have problems while accessing to education, health services and even security. We believe that Turkey is not a safe harbor for the refugees.”

Thanks for inviting us today. I am representing Progressive Lawyers Association located in Turkey. We have different commissions and I am part of the commission which works for the rights and protection of immigrants. We accept applications who seeks assistance and do not have sufficient income to retain an attorney. I will try to explain how we see the refugee deal between the EU and Turkey and the conditions and challenges that refugees, asylum seekers and immigrants face in Turkey.
There are millions of people live far away from their motherland, trying to survive in uncertainty and seeking for a legal status. There are only a few people who have the chance to live in the state which he/she prefers to. Especially recent political problems in the world, forces more people to find a different location to live. Syrian Civil War is just one of those and occurs south borders of Turkey. Due to the war and the geopolitical location of Turkey, each year thousands of refugees or asylum seekers either immigrate directly to or transit from Turkey to another country.
I will share our experience and observation about the refugees in Turkey and why Turkey is not a safe country in terms of the agreement signed between the EU and Turkey. Problems start with the law which assigns different status for foreigners. The law does not provide adequate safeguards against arbitrary treatment. The government agencies categorize immigrants in their sole discretion. Moreover, immigrants in Turkey have problems while accessing to education, health services and even security. We believe that Turkey is not a safe harbor for the refugees. In other words, the refugee deal between EU and Turkey bears fundamental risks in terms of human rights.
1- Local Regulations with regards to Refugees:
The main code regulating the rights and conditions of immigrants (in wide meaning) in Turkey is The Code of Foreigners and International Protection entered into force in 4th of April, 2013. It defines who is refugee and how this status might be obtained.
According to the Code, a refugee might be a person immigrated from the EU or a person who is stateless. In order to be accepted as a refugee, that person should have fled from his country of origin due to some political or similar reasons in nature and should have some kind of fear from facing ill treatment, torture etc. A conditional refugee is the person who is not coming from the EU, however, in a similar condition to what is required to be accepted as a refugee. Another important thing is that, a conditional refugee is only allowed to stay in the state until he/she is transferred to another safe third country.
Another status that the Code enlists is that the second degree protection. If a person does not meet the requirements to be a refugee or a conditional refugee, however, there is a risk of being executed, tortured or a serious threat against him/her, then he/she might be granted second degree protection.

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European Association of Lawyers for Democracy & World Human Rights, Lille, Pim Fisher speaking here.

As it is obvious from the definitions, one might be called either a conditional refugee or be granted second degree protection by very arbitrary reasons. The law itself is not clear and it is open to be abused by the government agencies.
The last is called temporary protection. According to the Code, a person might be granted temporary protection if he/she forced to leave his/her country part of a massive movement. The Code says this type of protection might be granted to the person and conditions for the protection is regulated by a decree published by the Cabinet. It is too arbitrary without providing conditions in clear terms. For those fled from Syrian Civil War, this is the type of protection is granted.
3- The situation in Practice:
It is possible to divide refugees into two groups considering their reasons to immigrate. In the first category there are refugees escaping from the Syrian Civil War. As you all know, the government of Turkey accepted those refugees unconditionally. The other category is for those came to Turkey regardless of the Civil War. These refugees are treated in different ways.
Syrian refugees are kept either in camps located in the south parts of Turkey or in the cities around the country. Those live in the camps are in worse condition than in the cities. The government argues that all the refugees are provided accommodation (tenants), food and health services. We do not even know exactly how the life in the camps as because the Government does not let NGO’s or even main opposition political party to observe or monitor the life in the camps.
On the other hand, living in a city for a refugee is highly challenging. Most of the times, they work for less money than Turkish citizens. Turkish employers, indeed, consider them as cheap labor force. They have serious difficulties to reach health and education services. As they cannot afford rent alone, they share apartments with so many other refugees. Unfortunately, they still have difficult times to find an apartment as because Turkish people do not want to rent their homes to them. Moreover, we heard news that in some cities, refugees were lynched by Turkish citizens. For them, they lost their jobs as Syrian refugees are more “profitable” for Turkish employers as they are willing to work for a less wage.
For the other refugees, the situation is not hopeful too. The government kept them either in removal centers or ignores their existence. Moreover, as mentioned earlier, it is the government agencies’ sole discretion to assign a status to them. Immigrants coming from non-EU states are not accepted as refugees. In other words, they are most of the times illegal immigrants for the Government. The result is that there are no legal safeguards for them.
They are kept in removal centers waiting to be either released or sent to another state. In the removal centers, hundreds of refugees are detained. Most of the times, there is little space for each refugee to survive. They are just kept in these centers without knowing charges or reasons for their detentions. They have difficulties in accessing to an attorney either because the officials do not allow them to talk with a lawyer or they cannot afford the retaining fee. Istanbul Bar Association assigns some lawyers who seek for assistance, however it is not sufficient. Most of the times, after filing a petition, they can be released from the centers as they are kept there with no legal justification. There are also attorneys who use these refugees’ situation for their advantage. We personally observed that they charge refugees higher than the ordinary amount. Moreover, attorneys’ attitudes towards these refugees is insulting.

4- ECHR Rulings:
Human rights law might only be improved by first recognition, then protection and finally improvement. The principal of non-refoulement, is only a beginning point. Nevertheless, the agreement between the EU and Turkey just jeopardizes even this principal. Turkey is not a safe country for those refugees and ECHR set froths the criteria for what is to be a safe country.
The case of Yarashonen v. Turkey is important to illustrate why Turkey is not a safe country for those refugees to be returned back from the EU. (Application no. 72710/11), 24 June 2014)
Applicant is a Russian origin, who fled from Russia and arrested in Atatürk Airport, İstanbul. After arrested, the applicant was transferred to Kumkapı Removal Center on 1st of November, 2010. He caught flu while detained in the Center and had not received any kind of treatment for more than three months. For almost a year, he could not retain an attorney. On 18th of April, 2011, he was finally able to file an asylum application.
He finally released from the removal center on 29th of April, 2011 and granted an asylum-seeker certificate. Afterwards, he was diagnosed tuberculosis pleurisy after several tests conducted in Istanbul.

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Angela Merkel, EU council president Donald Tusk and Turkish ex-prime minister Ahmet Davutoglu at refugee camp in Turkey

Conditions of the Kumkapı Removal Center    :
•    According to the report to which the court refers and drafted by a committee under the General Assembly of Turkey, the total capacity of the Center was 300 detainees. However, at the time of their visit, they observed 297 males, 97 females, and 7 minor detainees.
•    European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) also visited the center. According to the report, the official capacity of the center was 560. By “coincidence” the number of detainees were decreased by %50 during the several visits of the committee members.
•    The report indicates that keeping 560 detainees in that center, considering the size and facilities, was basically not acceptable. For every 58 square meters there were 30 beds. On the ground floor there were 120 beds. Moreover, male detainees were not able to get out of the facilities even for an hour or so during a day.
•    Another important point, which was raised in European Commission’s Progress Report on Turkey published in 2011 was that there were no comprehensive guidelines for the management and operation of the removal centers. In other words, the Turkish government acts arbitrarily.

Merits     and Decision    :
•    The court decided that there was no legal basis for the detention of immigrants. Accordingly, it found violation of the article 5-1 (right to security and liberty) of the Convention.
•    The court also found that there was also violation of the article 5-2. Because, the applicant was not informed clearly the reasons for his detention.
•    When assessing whether there was a violation of the article 3 of the Convention (prohibition of torture), the Court found that there was not enough space for the detainees, even though the Government did not provide sufficient information about the applicant’s conditions. The Court found that the length of the applicant’s unlawful detention (which might be for an indefinite term) caused the applicant distress which exceeded the unavoidable level of suffering inherent in detention and attained the threshold of degrading treatment proscribed by Article 3. (P.S. For the Court it was not necessary to examine other allegations regarding the condition of the removal center.)

Another important case is M.S.S./ Belgium and Greece, which discusses a similar situation to the agreement between Turkey and the EU.
The applicant immigrated from Kabul, Afghanistan to Belgium through Iran, Turkey, Greece, and France. He made an asylum application first time in Belgium without any identification document. After checking through a finger print system, it was understood that he first entered into the EU via Greece. The Belgium authorities issued an order to send the applicant to Greece in accordance with the Dublin Regulation.
The applicant’s counsel lodged an appeal under an extremely urgent procedure. The counsel argued that there was a risk of arbitrary detention, ill-treatment in Greece. Moreover, the applicant also argued that there was lack of effective access to judicial proceedings and fear of being sent back to Afghanistan without any examination the applicant’s situation. His applications were denied. Eventually, he was sent back to Greece, detained again and there he applied for asylum for the first time. He then released from that center and informed to wait for the decision of his application.
The important and relevant part of the Court’s decision is that he found the Belgium government responsible for sending the applicant back to Greece despite his fear to be sent back to Afghanistan by Greece and possible ill treatment while in Greece. The Court noted that the Greek government at some point already issued a decree to send him back. Moreover, according to the Court, as its previous rulings suggest and the practice of the Greece government indicates, the Greece government has difficulties in complying with international agreements.
If we turn back to the agreement between the EU and Turkey, it is most likely that the Court will act in a similar way as there are similar problems in Turkey.

Conclusions:
1)    After the refugee deal between Turkey and the EU, Turkey is planning to build new removal centers for the refugees. They will be far away from the city centers which will make it harder to observe the situation and conditions in those centers. In other words, the situation will be worse for the refugees in Turkey.
2)    We believe that according to the international agreements and the European Convention of Human Rights, it is right of all refugees not to be sent back to their country of origin, where they might be tortured or not secure.

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