Justice and Home Affairs Issues in Turkish-EU Relations

Justice and Home Affairs Issues in Turkish-EU
Relations

In his presentation, Professor Kirisci
highlighted the main issues inherent to asylum and irregular
immigration, as well as the impact that efforts to harmonise
Turkey’s practice and policies to that of the EU have had on Turkey
itself and on its neighbouring countries. The bottom-line
assumption was that for a Europe without internal borders the
control of external frontiers becomes paramount, and that from this
point of view Turkey is strategically located.

Turkey is generally regarded as an emigration
country (there are roughly 3.5 millions Turks abroad), but in
recent years it became a country of immigration as well. The
audience learnt that Turkish officials participated in the drafting
of the 1951 Geneva convention, pushing for the introduction of the
geographical limitation that was later to be enshrined in its
article 1. The Turkish authorities made extensive use of the
geographical restrictions to limit application of the Geneva
Convention to people who came from “Europe”. Indeed, their task was
made easier by the fact that the decision on whether a country
could be considered European or not lied with the Turkish Ministry
of Interior. As a matter of fact, the MOI considers Europe as the
15 member states of the EU, leaving out even the candidate
countries that are now represented in the Convention.

In Professor Kirisci’s account, during the cold
war people came to Turkey on a temporary basis, as there was an
unofficial understanding that they would be resettled in other
countries (e.g. the United States and Canada) by international
organisations.

Because of the settlement law, only people of
Turkish descent and culture were allowed to stay and to become
immigrants. However, the definition of Turkish culture was broad
enough to include people of different ethnic origins, even when
they were not Turkish speakers.

It was only in the late 1980s and early 1990s,
and more specifically as a result of the Gulf War (with the
displacement of thousands of Kurds that it entailed), that things
started to change. By that time there was an escalation of violence
between the security forces and the PKK. This led to the
abandonment of the gentlemen’s agreement by which all the
immigrants who applied for asylum had their situation processed by
the UNHCR. Instead, in 1994 a secondary piece of legislation
(regulation) was passed which was aimed at bringing the
determination of status within the remit of Turkish authorities. In
particular, the regulation included a strict rule, by which people
who wished to apply for asylum had to do that within five days. The
provision was interpreted liberally by security forces officials
who seized the opportunity to deport people more easily. To find
again an approach in line with international law towards these
issues, it was necessary to wait until younger officials, with a
relatively open mind and personal links with the UNHCR, were
appointed in the higher ranks of the police. They started to have
training for the officials organised by UNHCR, which marked a major
change in the officials’ previously arrogant attitude.

Interesting in terms of international
co-operation and sovereignty was also a case in which UNHCR paid a
refugee to bring his case to court against a decision of the
Ministry of the Interior. This was actually the first time that
someone dared to do that, and strangely enough the applicant
succeeded. Notwithstanding the “lobbying” on the part of the State,
also the higher court rejected the government’s appeal against the
decision.

The lecturer provided statistical evidence for
the fact that there was an increase in the number of cases in which
asylum seekers were deported together with irregular immigrants
over the last three years. He used this argument to show that a
clear distinction between rights of asylum seekers and illeg al
immigrants has not been drawn so far. But it also illustrates how
effectively the police combat against crime was strengthened.
Moreover, the crack-down on illegal immigration was closely linked
to a massive anti-corruption campaign, a topic that is always very
high on the Turkish agenda.

With regard to Visas, Professor Kirisci
explained that there was a simplified system aimed at facilitating
trade and business. For example you could simply pay a visa fee in
Istanbul’s airport, thus legally staying in Turkey for up to three
months.

The question was raised as to whether Schengen
policy is affecting other policies at a national level. But it will
only possible to answer that question when the revision of the
national program will be completed. The revision is being discussed
at the moment, one of its main features being the call for the
lifting of geographical restrictions. So far the national program
has proved a masterpiece in ambiguity, but the lifting of the
geographical limitation would nevertheless represent an historical
breakthrough. Altogether, the goal will be very difficult to
achieve as the issue is very sensitive, and Turkey fears that the
limitation could be lifted without the EU taking it on board. In
Professor Kirisci’s words, they risk “being left out in the
cold”.

Another issue raised by Professor Kirisci was
the problem of the trafficking of human beings as opposed to the
smuggling of human beings. The former, which takes place when a
person is moved against his will (more often against her will)
being considered a crime against the person, the latter with the
person “purchasing a service”, considered as a crime against the
state. In a recent UN report Turkey has been identified as one of
the countries that might be subject to sanctions given the serious
infringements of international law in this area. But to ameliorate
the situation in this field it would be necessary to change the
penal code, as until the present day trafficking is not a crime in
Turkey. Moreover, Turkish police has not enough effectives, they
are overwhelmed with work, therefore when a group of illegal
immigrants is spotted, officials tend to turn their backs as it
would be an hassle for them to do something.

With regard to the operational organisation of
the smugglers, the position of the Turkish Ministry of Interior is
to consider them within the framework of organised crime, involving
both the PKK (inasmuch as the first routes were opened to smuggle
terrorists who had to flee Turkish security forces) and Mafia (the
latter having discovered that it is more profitable and less risky
to smuggle people instead of drug).

Always from a practical point of view, Turkish
officials claim that they increased their co-operation with their
counterparts within the EU. Even though there is evidently a great
deal of mistrust between the two. As an example, the relations
between Turkish officials and Italian authorities were mentioned:
many agreements have been signed, but then whenever something
happens these deals are not respected.

Overall, it is clear that these issues are a
function of the level of trust and confidence between the EU and
Turkey. For other examples of lack of confidence, one might look at
the unresolved problem of burden-sharing, the actual EU system
being unsatisfactory for Turkish officials. On the contrary, as a
positive example it is possible to mention the co-operation between
Turkish authorities and UNHCR, which worked because they both knew
that they had to gain from it.

Dr Kirisci also addressed the question of
mistreatment. According to article 31 of the Geneva Convention a
person can arrive in a country without documents when he/she is in
a flight situation (escaping from a dangerous country), but
Professor Kirisci explained that the Turkish state does not have a
precise procedure to deal with asylum seekers. What usually happens
is that the apprehended would-be asylum seekers are taken in
detention to the nearest police station. There, the police “does
the paperwork” and then brings the person to court. The judgement
is usually one of violation of Turkish law. As a consequence people
get an administrative fine and then they’re deported. In the
lecturer’s view, this is where NGOs and UNHCR could help, by
providing legal aid for those who are not sure about their
position, but NGOs are only recently taking off, and so far they
were not able to make a difference. As for UNHCR, it rendered the
middle level of the police and the gendarmerie fully aware of the
implications of the Geneva Convention and of Article 31 in
particular. But this work has been done at the medium-high level,
while there is still a lot that needs to be done at the lower
levels.

For more CEPS analyses see the

CEPS website.