Detention, screening and procedures at the borders. What might happen in Greece with the implementation of the new EU Pact?

Post by George Nikolopoulos. George is Professor of Criminology at the Panteion University of Social and Political Sciences (Athens, Greece). He holds a PhD in Criminology from the Catholic University of Louvain (1993) and has been Deputy Ombudsman for Human Rights responsible for exercising the competence of the National Preventive Mechanism under the OPCAT (2016-2021), Member of the National Scientific Council for Prisons (2016-2019) and President of the Administrative Board of “Epanodos” - the Greek official entity for the Reintegration of ex-Offenders (2010-2016). This post is part of a thematic series on the EU Pact on Migration and Asylum, edited by Giuseppe Campesi and José Angel Brandariz. Read the introduction here.

The challenges with which Greece has been confronted due to the increased migratory flows during the recent decade, seem to be due, at first glance, to its favourable geographical position for the trajectories of migratory populations towards Europe. However, a more global view highlights the impact of broader geopolitical dynamics in the way migration flows are shaped. For instance, the Ukrainian conflict has prompted a reorientation of reference points and the emergence of a novel East-West logic that has redefined the constants of European migration and asylum policy. Τhe same has started to happen after the regime change in Syria albeit in a completely different setting. Τhese ongoing sociopolitical changes make extremely fluid the task of establishing a solid regulatory framework for the management of migration and refugee flows in Europe, as they introduce strong factors of uncertainty and contingency in their planning and implementation. After all, the broader image points rather to a multilayered migration and asylum European policy than to a common and coherent one.   

In this regard, the specific challenges that arise in the Greek case with the implementation of the new EU Pact could be summarized in the even more serious deterioration of border procedures, which is already an established practice in Greece since the signing of the EU-Turkey Joint Statement on 18-3-2016. Indeed, long-standing evidence has already depicted Greek specific patterns such as the disproportionate use of force by official and unofficial agents, the long-term use of the deprivation of personal liberty as a measure to deter unwanted arrivals of third-country nationals and the systematic phenomenon of expedited expulsions taking the form of pushbacks. For instance, the rule of law and human rights’ precepts seem to be flagrantly violated according to the Greek Ombudsman's findings in his interim report on alleged illegal pushbacks of foreign nationals from Greece to Turkey, in the area of Evros river. Indeed, it results that it is pursued "a standard practice, according to the complainants", which "follow, through the years, constantly repeated patterns", being them the result of "work or hav[ing] at least involved state agencies and state agents at the levels of operational planning, logistics and perpetrators". In fact, according to the testimonies collected by the Mechanism for Recording Incidents of Informal Forced Returns of the Hellenic National Commission for Human Rights the incidents continue to show a same pattern: The alleged victims are first identified by a group of uniformed or even plain-clothed persons (the identification stage); then, in the majority of cases, they are transferred to a facility where they are held informally (the informal detention stage), and finally they are transferred from the informal detention facility to the point where the act of physical removal takes place and where the incident of the informal forced return is completed (the physical removal stage).

More recently, the same Mechanism issued its annual report for 2023, which refers to testimonies from 2022 - 2023, with a landmark case being the tragic shipwreck of 14 June 2023 in international waters off Pylos (western Peloponnese) within the search and rescue zone of Greek responsibility, in which 82 people died, while the number of victims and missing persons is believed to be more than 550, as it is estimated that their fishing boat was carrying up to 750 people (including, according to the testimonies of survivors, women and children). It is also worth mentioning that - following the expressed denial of the Greek Coastguard to initiate a disciplinary inquiry for this incident - the Greek Ombudsman decided to initiate its own investigation, in its special mandate as National Mechanism for the Investigation of Arbitrary Incidents in relation to acts or omissions of Coastguard officers upon the Pylos shipwreck. Then, in its recently published Report, the Ombudsman reveals “a series of serious and reprehensible omissions in the search and rescue duties on the part of senior officers of the Hellenic Coast Guard ... [which] constitute the offences of deadly exposure to danger, as well as exposure to endangering the life, health and physical integrity of those on board the Adriana fishing vessel, punishable under article 306 of the [Greek] Criminal Code”.  Also, the European Ombudsman has already opened an inquiry on the role of Frontex on rescue operations after the Pylos shipwreck, in coordination with the Greek Ombudsman vis-à-vis the Greek authorities.

Despite these tragic experiences, the long-term outlook based on the Pact’s projections leaves little room for optimism, as it imposes increasingly restrictive policies, based on the repeatedly disproven assumption that such measures will deter individuals aspiring to move to Europe. The management models introduced by these new regulations are promoted through euphemistic terms such as “externalization”, “instrumentalisation”, “remmigration” etc., which certainly offer new arenas to deploy “the interlegal jurisdictional games” of the actors involved. Important here is the strengthening of the process of racial profiling, through the use of high surveillance and identification technologies under the newly introduced pre-entry screening procedure. This way, the external borders of EU peripheral member states, like Greece, will no longer be established only as places of control for access to the “european area of freedom, security and justice”, but rather as a no man’s land of detention, until a decision is taken to grant international protection status to asylum seekers or - as is most likely to happen - until their forced return to a so called “safe third country”. After all, the legal basis of detention in this case is not only the forced return of the non-EU citizen, but also his/her non entry into the national territory. Indeed, according to the new Regulation on asylum procedures, a "plasma of law" is created according to which those subject to the border procedure will be considered as non-entrants in the member state territory for the duration of their asylum procedure. In this respect, the new Pact almost certainly:

• will increase the pressure on those member states at the external borders, by extending the hotspot approach already applied to the Greek islands;
• will cause the de facto detention of more people at EU borders, since there is no explicit requirement in the Pact for its application only as a last resort; 
• under such conditions, the application of border asylum procedures will inevitably deteriorate the quality of individualized assessment of the right to asylum.

Of course, a prerequisite for mitigating these consequences is the implementation of this new European legislation in a way that is fully in line with international refugee law and human rights. In this respect, it is worth mentioning, in conclusion, that the coercive measures mentioned above are accompanied by provisions aimed at establishing monitoring mechanisms. These mechanisms, which Member States are required to implement, are intended to ensure that fundamental rights are respected in all procedures at the external borders. In particular:

1. The Screening Regulation proposes that each Member State should establish an independent mechanism - could it be an independent authority such as the Ombudsman - that is intended to monitor the screening and detention of new entrants, making explicit reference to the principles of non-refoulement and free access to the asylum procedure, as well as that any allegations of violations are duly investigated. In this respect it is also worth mentioning the recommendation of the Parliamentary Assembly of the Council of Europe suggesting the amendment of the “screening Regulation”, to ensure that it includes an “effective suspensive remedy against incorrect categorization” during screening, in order to fully respect the obligations arising out of the relevant right provided for in the art. 13 of the ECHR.
2. In the same background, it is also interesting to note the proposal of the European Council on Refugees and Exiles (ECRE) and other NGOs for the development of an effective conditionality mechanism, which will guarantee the approval of the financing and the supply of EU resources to Member States with the respect for fundamental rights and the rule of law, as it is, after all, “an ongoing exercise and suggested precondition for Member States to receive EU funding in the next EU budget”

Obviously, the crucial point in establishing these countervailing provisions is the way in which they will be specified in the regulatory texts and the national legislations that will follow the adoption of the new Pact package. Even more so, it remains to be proven their effectiveness in responding to the pressing need for implementation of the guarantees provided for fundamental rights at the border controls.