“Protection” or “Instrumentalization” of Refugees: Will the European Court of Human Rights Fill in the Gaps in Pushback Cases After the Greece/Turkey Border Events?

Abstract

In the past few years, there has been an increase in the use of informal migration control arrangements by the EU with third countries, an example being the 2016 EU-Turkey Statement. The Greece/Turkey border events of March 2021 were the tipping point of the tension between the EU and Turkey, which manifested itself through a crisis with refugees and migrants being instrumentalized. These border events demonstrated how fragile and unreliable the EU-Turkey Statement is as an “international instrument”. The border events engaged the responsibility of both Greece and Turkey because both states are parties to the European Convention on Human Rights. This chapter focuses on the Greece/Turkey border events and analyses these events in light of the European Court of Human Rights case law. In order to do so, this chapter first looks at some of the main human rights concerns that emerged during the border events and elaborates on the question of state responsibility. It then looks into some areas that the Court could render its opinion with a view to filling certain gaps in pushback cases. These include the need to rely on circumstantial evidence in establishing the facts of the cases when evidence is exclusively under the control of the state; the possible shifting of the burden to the state in pushback cases, including cases with a secret migration detention element; and, deciding on the (in)effectiveness of exhaustion of domestic remedies in systematic pushback cases. The Court’s findings could help parties tailor their actions but also indirectly point to the human rights implications of the EU-Turkey Statement, which has the potential to influence EU migration policies.