Asylum-seekers, being in that vulnerable position, could be seen as the subject par excellence of the human rights and most in need of a grid of protection. And to be sure, again and again their rights are violated. In Europe, a grim record of human rights violations, in the wake of the Dublin II regulation and the failure of the Greek asylum system, is being exposed. The human rights institutions have been harsh in their critique, but what has been achieved?
On 21 september 2010, the United Nations High Commission for Refugees (UNHCR) declared the asylum situation in Greece a “humanitarian crisis”. The situation has been problematic for a long time. A large number of reports speak of a malfunctioning asylum system, unable to effectively determine the asylum claims being made, and a systematic practice of detaining asylum seekers for periods ranging from a few days to a few months without adequate information given as to the reasons for detention. Furthermore the detention facilities are reported as being overcrowded, unsanitary, and lacking in ventilation, mattresses and access to toilets.
The Dublin II regulation, assigns responsibility for examining asylum claims within the European Union upon the asylum-seeker’s first country of entry. Frontex, the EU agency for external border security, reported in 2010 that 90 percent of detected illegal border crossings along EU:s country borders were in Greece. In this context it’s evident how the Dublin II regulation has put pressure on the Greek asylum system.
The state of detention facilities in Greece is reported by Human Rights Watch as constituting inhuman and degrading treatment. From the Fylakio migrant detention center, near the border in north-eastern Greece, reports were made of overcrowded cells, unaccompanied children in cells with unrelated adults and sewage running on the floors due to broken toilets. Detainees complained about lack of water and medical care, and of violent mistreatment by the guards. In Tychero, another detention center,130 detainees were held in a police station with a capacity, according to the police authorities for 48 people. The detainees were sleeping on cardboard or directly on the floor, there was no access to toilets and limited access to clean water.
According to an Amnesty International July 2010 report, detention orders are given routinely upon the arrests of irregular migrants, and judicial review of the cases is lacking. The report goes on to say that for the vast majority of migrants arrested in the regions bordering Turkey, the deportation order is followed by an order for continuation of detention lasting up to several months. The UNHCR reports that those in detainment who apply for asylum face longer detention periods, and that even those who voluntarily turn up to leave applications for asylum in some police directorates are detained. According to the UNHCR this deters people from seeking asylum and undermines the right of access to the asylum procedure.
These issues were quite recently examined in the landmark case of M.S.S vs. Belgium and Greece on 21 jan 2011 where the European Court of Human Rights found that the conditions of migrants detained in Greece were in violation of the European Convention on Human Rights. The Court also found the malfunctioning procedures of examining asylum claims to be in violation the conventional right to an effective remedy. Furthermore the Court stated that Belgian authorities had violated the convention by transferring the applicant, an Afghan man, to Greece in accordance with the Dublin II regulation, while knowing of the treatment he would be exposed to.
A number of states, Sweden being among them, stopped transferring asylum seekers to Greece before the Courts ruling in January. And by now, transfers of asylum seekers to Greece appear to have decreased drastically within EU.
At the moment reforms of the Greek asylum system are ongoing. According to Hanne Mathisen, spokesperson for UNHCR in the Nordic and Baltic Countries, there is a positive development with regards to the necessary legal reforms that have taken place. But the implementation of these will take time, she says, as a functioning system remains to be built. The praxis of routine detentions is still being used, including in the Evros region, and the access to the asylum procedure and registration is limited. Mathisen says that a significant improvement is the increased possibilities for appeal in asylum cases. Appeals that have been pending for years are now given examination trough reestablished Appeal Committees. However the committees are working with an considerable backlog, reported in June 2011 by the UNHCR as approximately 47.000 pending cases.
The long term progress in Greece remains to be seen. Whatever the outcome, it is clear in light of the Court’s ruling, states within the Dublin II regulation have to be attentive to the situation in countries they send migrants to. This raises serious questions regarding the Dublin II system in itself, as it is based on the conception of member states asylum procedures as equal to each other; a conception that the Court has proved faulty.