European Court decision finds 2016 collective pushbacks “lawful”
On April 5, the European Court of Human Rights handed down a negative judgement on claims regarding the alleged pushback of approximately 1,500 asylum seekers into Greece via North Macedonia in 2016. ECHR acknowledged their violent persecution, but believed the applicants could have applied for asylum by other legal means ― although there weren’t any.
A long-awaited decision issued by the European Court of Human Rights on April 5, on a case regarding a violent pushback of approximately 1,500 asylum seekers into Greece via North Macedonia in 2016, has raised concerns for the state of asylum-seeking in Europe today.
The decision acknowledged that the asylum seekers had been forcibly returned to Greece from North Macedonia, without being granted the right to claim asylum in the country, but found they could have done so by following the existing “legal routes”.
However, official data by both the North Macedonian state as well as the United Nations High Commissioner for Refugees (UNHCR) confirm that, at the time, the country was not receiving asylum claims ― and in fact did not issue any asylum certificate.
Human rights defenders warn the decision could provide justification to the increasingly-noted practices of European countries restricting or denying access to asylum, by closing their borders and committing illegal pushbacks, in what has been described as a “ping pong” with asylum seekers between them.
The case: Eight asylum seekers v. North Macedonia
The case regards incidents that took place in March 2016, and offers an insight into the shift that would come in migration management within the continent.
In response to over 800,000 asylum seekers that were able to make it north through Greece and the Balkans in 2015, countries in the region began sealing off their borders with fences and increasing border forces before the end of that year.
In February 2016, Idomeni, a small Greek village with approximately 130 inhabitants near the border with North Macedonia, became crowded with thousands of stranded asylum seekers.
For weeks, over 10,000 asylum seekers lived in severe conditions on the fields surrounding the village. At first, fortified North Macedonian forces would allow only specific nationalities to cross the border ― Syrians, Afghans, Iraqis; later on no Afghans ― and then drastically cut the number of daily admissions.
“It was very bad,” Dayana from Aleppo, who had fled the war in Syria, said. “We lived in a field of mud.”
On March 14, 2016, Dayana and her family were among the approximately 1,500 asylum seekers that entered North Macedonia on foot. They were divided into two groups, and waded across a river, in what later became known as the “March of Hope”.
After crossing into North Macedonia, they were faced with mistreatment. Several reporters and photojournalists accompanying the groups were persecuted by North Macedonian police.
Recalling that day, Dayana said North Macedonian soldiers made them sleep outdoors, in the rain, surrounded by dogs and weapons, before they forced them back to Greece the next morning.
Nour, also from Aleppo, added they had been pushed back violently many times. “There were kids around us, they were crying, and they were exhausted after the march,” she said.
In September of the same year, after making it safely to other European countries, Dayana and Nour were among eight asylum seekers from Syria, Iraq, and Afghanistan, who filed a case with the European Court of Human Rights (ECHR).
They claimed that their collective expulsion, without examination of their individual circumstances nor access to an effective remedy, constituted a breach of the European Convention of Human Rights.
Their complaints to the ECHR were supported by the Berlin-based European Center of Constitutional and Human Rights (ECCHR) and Pro Asyl, Germany’s largest pro-immigration advocacy organization.
ECHR acknowledges, justifies massive expulsion
In its April 5 judgement, the European Court of Human Rights acknowledged the applicants had entered North Macedonian territory before they were intercepted by North Macedonian soldiers who forced them to cross on foot back to Greece through holes in the newly-erected fence.
The court assessed whether the lack of examination of their personal situation by the authorities of North Macedonia could be attributed to the applicants’ own conduct; that is, whether by crossing the border irregularly with the other asylum seekers, the applicants had circumvented an effective procedure for their legal entry.
The court found they could have entered North Macedonia by the border points, where they could have sought asylum. It stated that the nearest border crossing, Bogorodica, had been “one of the two busiest border crossings, at which more than 300,000 certificates had been issued by the end of December 2015”.
However, the situation in December 2015 was very different from March 2016.
As the judgment itself acknowledged, since March 8, 2016, almost a week before the reported incident, transit in these border crossings “had effectively no longer been possible because of the European Union’s different approach to the issue of the ever-increasing number of migrants and the consequent reaction of other countries along the Balkan route”.
Although it accepted that border crossing was no longer possible, the court found that “there was nothing to indicate that it had no longer been possible to claim asylum at the border crossing”.
This is disputed by all media reports of the time, which described that while thousands of people were stranded in Idomeni for weeks, North Macedonian authorities would only allow a handful of asylum seekers through the border points each day.
According to the judgement, the fact that the eight asylum seekers ― children and a person in a wheelchair among them ― had to sleep out in the open for weeks, as the border points remained closed, didn’t constitute a “required cogent reason for not using the Bogorodica or any other border crossing point at the material time”.
Hanaa Hakiki from the European Center for Constitutional and Human Rights (ECCHR), who supported the case, said “the court ignored the factual situation at the border. Concluding that a mass expulsion is lawful goes against the essence of the prohibition of collective expulsion”.
Hakiki told Solomon that both UNHCR and state data show that between March 8 and September 21, 2016, North Macedonia registered no intentions of asylum-seekers to claim asylum anywhere in the country, including at border crossings.
This proves, she said, asylum seekers couldn’t actually seek asylum in the country.
Deterioration of rights within Europe
Zoran Drangovski, program coordinator at the Macedonian Young Lawyers Association (MYLA), a non-profit providing free legal aid to people on the move that also authored a Third-Party Intervention in support of the claimants in June 2017, had witnessed the pushback.
During a panel held on the day of the announcement of ECHR’s judgement, Drangovski said he had seen asylum seekers being forced to board a truck and being deported to a location around 10km from their entry point.
At the time, he said, “it was simply impossible to travel to the Greek border and go to North Macedonia to apply for asylum. It was completely impossible.”
In the six years since, things in North Macedonia have only become worse: MYLA’s 2021 field report recorded almost 17,000 people have been pushed back, while Drangovski said the number could reach up to 40,000 in 2020.
The six years it took for the court procedure marked the shift in migration management within Europe. Drangovski said that during the first steps of the trial, in private talks, the state officials handling the case would acknowledge that North Macedonia was set to lose.
As years passed, though, the same practices were normalized by more countries across the continent.
Reacting to the court’s decision, Nour and Dayana were disappointed. Dayana said she hoped that “they will accept our rights and see us as human. We have rights, and we are not liars.”
She wasn’t surprised, however, as she recalled an incident from another time she had been pushed back to Greece from North Macedonia. One of the soldiers that were walking them to the borders, she said, had told them to leave, to go back home.