United Nations A/hrc/23/46/Ad




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United Nations

A/HRC/23/46/Add.2



General Assembly

Distr.: General

17 April 2013


Original: English
Human Rights Council

Twenty-third session

Agenda item 3



Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report by the Special Rapporteur on the human rights of migrants, François Crépeau

Addendum

Mission to Turkey (25–29 June 2012)*

Summary

The Special Rapporteur on the human rights of migrants conducted an official visit to Turkey from 25–29 June 2012, in which he visited Ankara, Istanbul and Edirne, and held consultations with Turkish Government officials at central and local levels, civil society organizations, and migrants themselves.

While recognizing that Turkey has made some important progress in putting in place a holistic and rights-based legal and policy framework for migration, particularly with the recent approval of the Law on Foreigners and International Protection, the Special Rapporteur noted that a wide range of challenges are still to be addressed.

With regard to the relationship with the European Union (EU), the Special Rapporteur is hopeful that the accession negotiation will be an opportunity for the EU and Turkey to engage on the issue of migration and border management in a way that focuses on the respect, protection and promotion of the human rights of migrants.





Annex

[English only]

Report by the Special Rapporteur on the human rights of migrants, François Crépeau, on his mission to Turkey
(25–29 June 2012)

Contents


Paragraphs Page

I. Introduction 1–5 4

II. General background: Turkey and migration 6–8 4

III. Normative and institutional framework for the protection of the human


rights of migrants 9–30 5

A. International legal framework 9–12 5

B. National legal and institutional framework 13–30 5

IV. Border management 31–39 8

A. National legislation and institutional framework 31 8

B. Cooperation with Frontex 32 9

C. Readmission agreements 33–39 9

V. Detention of migrants in an irregular situation 40–58 10

A. Detention practices and legislation 40–47 10

B. Detention conditions and safeguards 48–58 12

VI. Asylum seekers and refugees 59–68 14

A. The asylum procedure 59–64 14

B. Work permits and the “satellite city” system 65–68 15

VII. Cross-cutting concerns 69–73 16

A. Economic, social and cultural rights 69–70 16

B. Terminology 71 17

C. Reliable data and statistics 72 17

D. Civil society organizations 73 17

VIII. Cooperation with the European Union 74–79 17

IX. Conclusions and recommendations 80–81 19

A. Normative and institutional framework for the protection of the human
rights of migrants 82–90 19

B. Border management 91–93 19

C. Detention of migrants in an irregular situation 94–103 20

D. Asylum seekers and refugees 104–111 21

E. Cross-cutting concerns 112–115 21

F. Recommendations to the European Union 116–121 21



I. Introduction

    1. The Special Rapporteur on the human rights of migrants, François Crépeau, conducted an official visit to Turkey from 25–29 June 2012 at the invitation of the Government. The mission was carried out in the context of the Special Rapporteur’s year-long study on the human rights of migrants at the borders of the European Union. The general management of the external borders of the European Union and its impact on the human rights of migrants are dealt with in the Special Rapporteur’s main report (A/HRC/23/46), while this report deals more specifically with the human rights situation of migrants in Turkey, as observed by the Special Rapporteur during his visit.

    2. As the visit focused mainly on border management, this report does not provide a comprehensive overview of the human rights situation of migrants in Turkey, but is limited to what the Special Rapporteur observed while trying to identify the impact on the EU’s external border management in the country.

    3. During the mission, which included visits to Ankara, Istanbul and Edirne, the Special Rapporteur met with State officials at central and local levels, the United Nations country team, including the International Organization for Migration (IOM), representatives of the EU, the Embassy of Greece in Ankara, representatives of civil society, and migrants themselves. He also visited Kumkapi and Edirne removal centres and the transit zone at Istanbul Atatürk Airport, as well as a border crossing point with Greece in Edirne Province.

    4. The Special Rapporteur expresses appreciation for the cooperation extended to him by the Government prior to, throughout and after the visit. He also thanks the United Nations country team, including IOM, as well as Turkish civil society for their valuable contributions.

    5. The Special Rapporteur visited Turkey during the Syrian crisis, and he would like to congratulate the Turkish Government for welcoming persons fleeing the violence in the Syrian Arab Republic since the spring of 2011. Granted temporary protection status, the “open border policy” and the material investments made by Turkish authorities appear to be ensuring their well-being. During the Special Rapporteur’s visit, there were approximately 35,000 Syrians who benefitted from temporary protection in Turkey. This number has increased considerably since the visit took place.

II. General background: Turkey and migration

    1. Turkey is one of the key bridges to the rest of Europe. Its unique geographical location makes it a hub for migrants from all over the world including sub-Saharan and North Africa, the Middle East and Asia. Many of those migrants are in an irregular situation, and some are transiting through Turkey with the wish to enter the EU. In recent years, irregular migration through the Aegean Sea has been diverted to the Turkish–Greek land border due to, inter alia, cooperation between Turkish and Greek coast guards and the deployment of Frontex in the area. However, this shift seems to have been partly due also to the completion of the demining operations at the Greek side of the land border, and the cheaper smuggling prices at that entry point. At the time of the Special Rapporteur’s visit, the Turkish–Greek land border remained one of the key points of entry for irregular border crossings to Europe. He is aware, however, that the migration route largely shifted back to the Aegean Sea during the second half of 2012, due to intense border controls at the Greek–Turkish land border.

    2. In recent years however, because of its economic strength, coupled with the difficulty many people face in reaching EU territory due to strict migration controls, Turkey itself has increasingly shifted from being solely a transit country to also becoming a destination country for migrants.

    3. The Special Rapporteur cannot assess the Turkish policies relevant to the human rights of migrants without also taking into account the regulations of border management at the EU level. Migration management is one of the key issues negotiated in view of Turkey’s possible accession to the EU, and the issue of migration, including the related matter of border management, will remain firmly on both Turkey’s and the Turkish–European agendas in the years to come. During his visit, the Special Rapporteur learned that pre-accession financial assistance provided by the EU in order for Turkey to align themselves with the EU acquis has in a large part been spent on integrated border management, the fight against irregular immigration and other migration related issues.

III. Normative and institutional framework for the protection of the human rights of migrants

A. International legal framework

    1. Turkey is a party to all core international human rights treaties and their protocols, with the exception of the International Convention for the Protection of All Persons from Enforced Disappearances, and the Optional protocols to the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities.

    2. While welcoming the fact that Turkey has ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the Special Rapporteur regrets that Turkey has not yet made the declarations provided for in articles 76 and 77 – allowing for the consideration by the Committee on Migrant Workers of inter-State and individual complaints – and that Turkey has not submitted its initial report under the Convention, which was due in January 2006.

    3. Turkey has adhered to the principal international treaties relating to the protection of refugees (although it maintains the geographical limitations, thus only accepting refugees from member States of the Council of Europe), as well as to the prevention, suppression and punishing of trafficking, and the smuggling of migrants (Palermo Protocols). However, it has not adhered to the 1954 Convention on the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness or the International Labour Organization (ILO) conventions on the protection of migrant workers (Nos. 97 and 143) and domestic workers (189).

    4. As a member State of the Council of Europe since 1949, Turkey is also a party to European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter (revised) and the European Convention on the Legal Status of Migrant Workers. It has not ratified the Convention on Action against Trafficking in Human Beings, which it signed in 2009.

B. National legal and institutional framework

1. National laws

    1. The 1982 Turkish Constitution guarantees the respect for human rights (art. 2) and that fundamental rights and freedoms may only be restricted by law (art. 13). It further provides that the fundamental rights and freedoms of aliens may be restricted by law in a manner consistent with international law (art. 16), but the Special Rapporteur was informed that there is currently no such law limiting the rights of foreigners. The Constitution furthermore states that everyone has the right to life, no one shall be subjected to torture or ill treatment, and no one shall be subjected to penalties or treatment incompatible with human dignity (art. 17).

    2. The Constitution further guarantees that everyone has the right to liberty and security of person; no one shall be deprived of his or her liberty except in the following cases where procedure and conditions are prescribed by law: (a) apprehension or detention of an individual in line with a court ruling or an obligation upon him designated by law; (b) apprehension or detention of a person who enters or attempts to enter illegally into the country or for whom a deportation or extradition order has been issued; and (c) individuals arrested or detained shall be promptly notified of the grounds for their arrest or detention (art. 19).

    3. The Constitution further provides that everyone has the right to freedom of residence and movement. Freedom of residence may be restricted by law for the purpose of preventing offences, promoting social and economic development, ensuring sound and orderly urban growth, and protecting public property; freedom of movement may be restricted by law for the purpose of investigation and prosecution of an offence, and prevention of offences (art. 23).

    4. Everyone whose constitutional rights and freedoms have been violated has the right to request prompt access to the competent authorities (art. 40).

    5. International treaties to which Turkey is a party carry the force of law, and in the case of a conflict between an international treaty in the area of fundamental rights and freedoms and a domestic law, the provisions of the international treaty shall prevail (art. 90/4).

    6. A constitutional reform package was approved by referendum in September 2010. However, since then, consensus has emerged on the need for a new Constitution to replace completely the 1982 Constitution. The Special Rapporteur was informed that the Turkish Parliament launched the drafting of a new civilian Constitution in May 2012.

    7. In the context of the Constitutional reform, the Special Rapporteur has been informed that human rights will be guaranteed for all, including non-citizens, without discrimination of any kind. He urges the Government to ensure this be the case.

    8. The Special Rapporteur congratulates Turkey on the recent approval of the Law on Foreigners and International Protection (Law No. 6458), which aims to strengthen the institutional capacity of Turkey regarding immigration and international protection. The Special Rapporteur is pleased to have learnt that this law was developed after widespread consultation with a range of stakeholders, including civil society, international organizations and the EU.

    9. The law lays down the principles and procedures concerning the entry to, residence in and exit from Turkey, the scope and the implementation of the protection to be provided for foreigners who request protection, as well as the establishment, duties and authorities of the Directorate General of Migration Management under the Ministry of Interior.

    10. The law, developed to align with the EU acquis in the area of migration and asylum, has potential to assist migrants and asylum seekers in Turkey in securing their rights, including procedural safeguards in relation to detention, deportations and international protection claims. Nevertheless, it will require a strong and concerted effort by multiple ministries and agencies to ensure its full implementation. In this regard, the Special Rapporteur urges Turkey to develop, in consultation with the necessary stakeholders, including international organizations and civil society, the relevant secondary legislation that ensures the law’s practical implementation in conformity with international human rights standards.

2. National policies and institutions

    1. Within the framework of alignment of Turkey’s asylum and migration strategy with the EU legislation, a Migration and Asylum Twinning Project was implemented with the cooperation of Denmark and England. A “National Action Plan on Migration and Asylum”, whose overall objective was the alignment of Turkey’s asylum and migration strategy with the EU acquis and the improvement of operational capacity, was approved by the Turkish Prime Ministry and submitted to European Commission in 2005. Another Turkey–EU Twinning Project on Integrated Border Management was implemented with the cooperation of France and the United Kingdom. An Action Plan for Implementing Integrated Border Management Strategy was signed by the Turkish Prime Minister in March 2006 and submitted to the European Commission. Subsequently, two new bureaus of the Ministry of Interior (Asylum and Migration Bureau and Integrated Border Management Bureau) were created.

    2. However, the Law on Foreigners and International Protection envisages a number of significant changes to the way Turkey manages migration, most significantly including the creation of a new Directorate General for Migration Management within the Ministry of Interior. At the same time, the Asylum and Migration Bureau will be dissolved. According to article 103 of the Law, the Directorate General will implement migration policies and strategies, ensure coordination among relevant institutions and organizations, carry out processes and work concerning foreigners’ entry into, stay in and exit from Turkey as well as their deportation, international protection, temporary protection and protection of victims of human trafficking. It is essential that the authorities ensure that this new Directorate General receive adequate resources and training to become fully operational, and that human rights be integrated throughout its operations.

    3. The Law on Foreigners and International Protection also provides for the creation of a Migration Policies Board chaired by the Minister of Interior and composed of undersecretaries of other relevant ministries (art. 105). This board will, inter alia, follow up the implementation of Turkey’s migration policies and strategies. The Special Rapporteur welcomes the creation of this board, which he hopes will facilitate the coordination of migration related activities within the Turkish Government.

    4. The Special Rapporteur also welcomes the creation of an Advisory Board for Migration (Law on Foreigners and International Protection art. 114) which will bring together relevant Government ministries as well as civil society, the United Nations High Commissioner for Refugees (UNHCR) and IOM. The Special Rapporteur hopes this Advisory Board will facilitate the Turkish Government’s cooperation with civil society and international organizations in relation to migration management, with emphasis on the human rights of migrants.

    5. However, the Special Rapporteur fears that the mandate of the new “Coordination Board for Fight against Irregular Migration”, composed of, inter alia, representatives of the General Staff, Ministries of Labour and Social Security and Foreign Affairs, the Undersecretariat of the National Intelligence Agency and law enforcement units, and tasked with the “effective fight against irregular migration” and identifying “the routes for illegal entry into and exit from Turkey and to develop counter measures” (Law on Foreigners and International Protection art. 116), does not fully take into account the human rights of irregular migrants. Terms such as “fight against” migration, “illegal entry” and “countermeasures” contribute to making these migrants even more vulnerable. The Special Rapporteur thus urges the Coordination Board for Fight against Irregular Migration to fully respect the human rights of all migrants, regardless of their status, in all its actions, including the elaboration of the National Strategy and National Action Plan on irregular migrants.

    6. In contrast to the consultative process relating to the Law on Foreigners and International Protection, the Special Rapporteur was disappointed to hear that the law establishing a national human rights institution (NHRI), “Law on Turkish National Human Rights Institution”, was not drafted in consultation with civil society or international organizations, and that their comments were reportedly not taken into account. He is concerned that the law does not fully comply with the Principles relating to the Status of National Institutions (the Paris Principles), which provide that National Institutions shall be independent of the Government and not be subject to financial control which might affect its independence. This may have a negative impact on the human rights of migrants. According to the Law on Turkish NHRI, the Turkish NHRI will be accountable to the Prime Minister, and its members will be appointed by the Council of Ministers. Furthermore, the funding provisions in the law do not ensure that the budget comes from an autonomous source. The Special Rapporteur encourages the Turkish authorities to ensure that the NHRI is both functionally and financially independent of the Government, in compliance with the Paris Principles, and vested with the authority to investigate all issues relating to human rights, including those of migrants, regardless of their administrative status.

    7. The Law establishing an Ombudsman Institution was adopted on 14 June 2012. The law provides that the institution is answerable to Parliament and that no one shall issue instructions to it. The Ombudsman Institution is mandated to examine complaints and makes suggestions concerning the functioning of the administration with respect to the rule of law and human rights. However, it does not have the right to conduct inquiries on its own initiative. The Special Rapporteur calls on Turkey to ensure that this important institution has jurisdiction to intervene on all administrative decisions relating to migration – including arrest, detention, decisions on migration status and deportation, and that is has the power to investigate all complaints made by migrants, including those in an irregular situation.

    8. The Special Rapporteur welcomes the ratification by Turkey of the Optional Protocol to the Convention against Torture (OPCAT), and believes this will enhance the independent monitoring of the human rights of migrants deprived of their liberty. The Special Rapporteur notes that the NHRI has been designated as the National Preventive Mechanism (NPM) established under OPCAT. Unless the NHRI is given functional and financial independence from the Government, this could be detrimental to the work of the NPM. The NPM should be fully independent, and should be mandated to conduct unannounced visits to all places where migrants may be deprived of their liberty, including airport transit zones.

IV. Border management

A. National legislation and institutional framework

    1. The structure for border management in Turkey is very fragmented, with both military land forces, gendarmerie, police and the coast guard involved. The Special Rapporteur notes that this is about to change. At the time of his visit, a “Law on Border Security”, was in the process of being developed. The draft law has been prepared by the Border Management Bureau of the Ministry of Interior. The law will constitute the basis for restructuring the Turkish border management, ensuring the replacement of the multiple corps in charge of monitoring borders by a new civilian national border guard agency. The draft law envisages the establishment of a well-equipped law enforcement body (Border Security Agency), which will be assigned to land and sea borders and border crossing points. The Special Rapporteur was informed that the Border Security Agency will provide training for border guards. He recommends that this should include systematic and comprehensive training on human rights, including on the rights of migrants, for all border guards. He further encourages the Border Security Agency to apply a human rights-based approach to border management.

B. Cooperation with Frontex

    1. A Memorandum of Understanding (MoU) was signed between Frontex and the Turkish Ministry of Foreign Affairs on 28 May 2012. The MoU enables the establishment of a framework for enhanced operational cooperation between Frontex and Turkey, including participation in training activities and joint operations, the deployment of Frontex experts to Turkey and exchange of information. The Special Rapporteur was informed that coordinated border patrols will be introduced soon, and joint patrols will be introduced in the future. He is concerned that the MoU has a strong focus on border surveillance, exchange of strategic information, including “prevention strategies”, “threat assessments” and “risk analyses”, and provides for possible EU financial support to “fight against illegal/irregular migration”. On a positive note, paragraph 15 of the MoU states that “In the implementation of the intended cooperation, Frontex and the competent Turkish authorities shall, in their respective capacities, afford full respect for human rights”. The Special Rapporteur urges the Turkish Government to ensure that a human rights-based approach to border management is fully mainstreamed in its cooperation with Frontex.
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