Verfasst von Louisa Hadadi & Jara Al-Ali
Over the past couple of years, “Moria”, the name of the former refugee camp on the Greek island Lesvos, has become a synonym for the European Union’s failure in human rights and migration policy. With a temporary overcrowding of more than 700 % (more than 20.000 people living there in April 2020 with an official capacity of 2.757 people) the year previous to the fire, Moria was Europe’s largest refugee camp. Even before the outbreak of the ongoing pandemic, politicians (here, page 11, and here) and NGOs (e.g. MSF and HRW) heavily criticized the situation in the Moria refugee camp. In addition to the lack of staff for the asylum procedure, resulting in long periods between the hearing and the asylum decision (p. 5), basic human needs such as medical and psychological care, adequate housing and sanitary facilities (p. 5) were almost impossible to be fulfilled in Moria. The outbreak of the current Covid-19 pandemic worsened the situation in the overcrowded refugee camp. Under the pretense to prevent further spreading of the Coronavirus, the Greek government issued a severe quarantine for the entire camp, a measure criticized by Médecins sans Frontières (MSF) only days before the fire.
The night of 8th to 9th September 2020, a fire destroyed the entire camp leaving 13.000 people homeless. After initial protests and despite their demands to be transported to the mainland, more than half of Moria’s residents were brought to the camp “Mavrovouni”, located close to the already existing camp “Kara Tepe”. (Some sources use the names Kara Tepe and Mavrovouni interchangeably. In the following we will refer to the newly set up camp as Mavrovouni.). Mavrovouni is located on a former military base (p. 2) next to the Aegean Sea in the South-East of Lesvos. The camp was intended as a temporary solution, while the Greek government builds a new reception center on Lesvos that was supposed to be operating by September 2021. As of today (June 2021), the construction of the new camp has not even begun.
After the fire in Moria, EU Commissioner Johansson stated that “we should have no more camps like Moria”. Yet, Mavrovouni is frequently described as worse than Moria by several NGOs and refugees. It remains unforeseeable, how long the people living in Mavrovouni have to endure the conditions in this make-shift camp. Thus it is all the more important that minimum human rights standards are guaranteed. In the following, we analyze the situation in Mavrovouni on Lesvos in light of a few selected provisions of the European Convention on Human Rights (ECHR).
I) From Moria to Mavrovouni: A New Chance for Human Rights?
While the Convention and its protocols do not contain a right to asylum, and only a few provisions explicitly concern “aliens”, any person – regardless of their status – on the territory of a member state is protected by the safeguards of the ECHR (p. 2). As a consequence of a sovereign decision, member states such as Greece are bound by the human rights obligations set forth in the Convention. However, it seems some states regard their human rights obligations as optional when it comes to the safeguards of asylum seekers, and even minimum standards appear to be disputable.
1. Living Conditions in Mavrovouni
After the fire in Moria, around 7,000 people were initially moved to the above-mentioned camp Mavrovouni. At the end of September 2020, shortly after the transfer to the new camp, an MSF doctor on Lesvos already described the living conditions in Mavrovouni as “most unfavorable”. In addition to cold winds and high level of humidity due to the camp’s location next to the seaside, the provisional housing is inadequate to defy the frostiness. Last fall, there were only chemical toilets, and barely an opportunity to shower. People accommodated with “Bucket-Showers” or went into the sea to clean themselves. Issues with water supply and electricity shortfalls were still ongoing during the winter. A May 2021 statement of the European Commission claims that the Commission is providing help and funding to improve the living conditions in Mavrovouni. While the improvements on the supply of water and electricity as well as the sewer system are ongoing, hot showers and toilets were supposedly already installed. But according to NGO reports, only 302 toilets were functioning as of May 2021. However, these were barely usable due to fecal matter and “are a breeding ground for communicable diseases”.
The living conditions in Mavrovouni are concerning in many ways, especially in regard to Art. 3 ECHR. The ECtHR recognizes that EU member states with external borders are particularly affected by the accelerated influx of protection-seekers and the provisions set forth in the Dublin Regulation. Nonetheless, the Court emphasizes that the absolute character of Art. 3 ECHR also implies that the difficulties connected to the increasing migration ”cannot absolve a State of its obligations under that provision” (para. 223). As an expression of human dignity, the right protected by Art. 3 ECHR is absolute, meaning that neither can an interference with Art. 3 ECHR be justified nor can it be derogated from in times of emergency, Art. 15 § 2 ECHR (para. 23). To be considered inhuman, the treatment of a person “must reach a minimum level of severity, and cause either actual bodily harm or intense mental suffering”. So far, the ECtHR has granted interim measures under Rule 39 of the Rules of the Court for vulnerable residents of Mavrovouni, stating that the housing and medical care are inadequate for vulnerable residents, and constitute a violation of Art. 3 ECHR. In an open letter, residents of Mavrovouni expressed their constant misery, asking to be treated like animals at the very least, as this would amount in an improvement to their current living situation. In light of this letter and the above-described living conditions in Mavrovouni, we strongly argue that these conditions are inadequate and inhuman for any resident of the camp. Therefore, it is necessary to drastically improve the living conditions in Mavrovouni, as it cannot be considered appropriate to wait until the new reception center on Lesvos is built.
2. Health Protection or the Lack Thereof
The right to health as such is not guaranteed under the Convention or its Protocols (para. 26). But the ECtHR has continuously expanded the right to respect for private and family life guaranteed in Art. 8 ECHR to the protection of the physical, psychological and moral integrity of a person (para. 22). Similarly to Art. 2 ECHR, it is important that the member states have regulations in place that require private actors “to adopt appropriate measures for the protection of their patients’ physical integrity” (p. 32). Hence it should also be guaranteed that the physical integrity of Mavrovouni’s residents is protected.
A major threat to the physical integrity of the residents is the lead contamination of the former military site, which was also recently pointed out to the European Commission by members of the European Parliament. An investigation by the Greek government that was conducted in December 2020 revealed alarmingly high levels of lead contamination of soil samples taken in Mavrovouni. Some claim that this investigation was insufficient and that in reality the numbers have to be even higher. It was criticized that the Greek government is downplaying the risks of the elevated lead levels that were found. While an extended exposure to these high levels of lead can cause extreme and irreversible damages to the residents’ health, most of the protection seekers have to continue to live there until this day (p. 3).
Besides the lead poisoning, the accommodation in the camp is insufficient to effectively avoid the spreading of Covid-19, posing another threat to the physical integrity of protection seekers. In July 2021, more than 4,000 people were living in shared tents (p. 2). Although there is in fact a quarantine area in Mavrovouni, some residents were asked to self-isolate in their tents due to an overcrowding of that area (p. 2). Physical distancing is not possible on the camp site, and with regard to the previously described unsuitable hygiene conditions, the spread of the virus is inevitable. In May 2021, roughly half of the islands Covid-19 cases were amongst residents of Mavrovouni (p. 2).
3. Isolation of Camp Residents
In order to contain the virus, the Greek government imposed severe restrictions on the refugees living in the Mavrovouni camp. In addition to a curfew at 5 p.m., the refugees were generally only allowed to leave the camp once a week. The shutting down of neighboring camps in combination with the current Covid restrictions practically detains people on the camp site.
Even before the pandemic, there were voices arguing that the refugee camps on the Greek islands are de facto detention centers. Consequentially, conditions in those camps that deprive the liberty of a person, have to comply with the safeguards set forth in Art. 5 ECHR. However, restrictions to the liberty of movement itself which is also affected by the provisions to remain in Mavrovouni are guarded by Article 2 of Protocol No. 4 of the Convention. Deprivations of liberty in terms of Art. 5 ECHR are only compatible (para. 54) with international human rights standards if they are not arbitrary (para. 45). The prohibition of arbitrary detention “extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention” (para. 67). While a full analysis whether Mavrovouni qualifies as an arbitrary deprivation of liberty exceeds the scope of this article, it is worthwhile mentioning that the place and conditions of the detention play a large role in the assessment of the violation of Art. 5 ECHR. As mentioned above, the living conditions in Mavrovouni are rather precarious and inhuman, which could also indicate a violation of Art. 5 ECHR.
While lockdown measures were prolonged for the camp inhabitants (p. 4), islanders and tourists on the other hand could move freely; almost all restrictions were lifted in May 2021 reopening the country for tourism (p. 2). Provided that persons living inside and those living outside the refugee camp are comparable groups, Art. 14 ECHR prohibits discrimination in the enjoyment of the rights enshrined in the ECHR. A different treatment based on racist grounds can never be justified in a plural democracy (para. 58).
Although it may seem that the different standard based on which Covid restrictions have been imposed is primarily linked to the housing situation of the refugees, one cannot avoid assuming that there is at least an indirect discrimination on the basis of origin. De facto, the stricter regulations in the camp only affect people who do not have a European nationality. Furthermore, it lies in the hands of the state authority to improve the housing situation in such a way that an equally free movement for refugees as for islanders and tourists would be possible.
Lastly, it is an ongoing problem, that new arrivals on Lesvos have limited to no access to legal advice. Legal aid support groups on the other side have a hard time gaining access to the camp site (p. 7). While the failure to provide access to legal aid, or even the lack thereof, as well as other obstacles such as the failure to provide information in the applicants’ native language are considered by the Court while examining an Art. 6 ECHR violation (para. 44), matters of asylum and immigration procedures are not considered civil or criminal procedures, thus not covered by the fair trial guarantees found in Art. 6 ECHR (para. 38). This practice is to be criticized nonetheless: the deficient access to legal aid ultimately restrains the equality of arms in the asylum procedure, and hinders the enforcement of human rights. Notably regarding the situation of people living in Mavrovouni, access to legal aid would be desirable, especially with a view of the potentially high number of human rights violations.
II) A Special Regard to Vulnerable Groups
In addition to the above-mentioned general human rights infringements, some persons are particularly vulnerable to the living conditions in the Mavrovouni camp. Especially persons whose mobility depends e.g. on a wheelchair cannot move easily on the uneven, partly steep ground. Chemical toilets for example are not accessible for people with physical disabilities. Furthermore, the lead exposure found in the soil is particularly dangerous (p. 3) to pregnant women and children.
Until recently, two alternative refugee camps with more humane and accessible living conditions existed on Lesvos: PIKPA, a self-organized camp founded in 2012, and the original Kara Tepe, a small camp next to the Mavrovouni camp. However, in October 2020, the camp PIKPA was evicted by officials. This was followed by the shut-down of Kara Tepe in April 2021 (p. 3), leading to the forced relocation of Kara Tepe’s residents to Mavrovouni, effectively extinguishing all humane accommodation alternatives for particularly vulnerable people.
In previous decisions on interim measures under Rule 39 of the Rules of the Court, the ECtHR repeatedly considered possible violations of Art. 3 and Art. 2 ECHR regarding the living conditions in the camp Moria for vulnerable persons.
Art. 3 ECHR obligates states to take special measures to protect vulnerable people from inhumane and degrading treatment due to their vulnerability (p. 10). Furthermore, Art. 2 § 1 ECHR not only requires states to refrain from unlawfully taking a person’s life, but also positively obligates states “to take appropriate steps to safeguard the lives of those within its jurisdiction” (para. 130). Whether the threshold for a violation of Art. 2 and Art. 3 ECHR is crossed depends on the individual case. Special vulnerability entails a special need for protection which is not met by closing refugee camps that are particularly equipped for vulnerable groups. On the contrary: the state must not only refrain from interfering with self-organized humane camps such as PIKPA but provide for appropriate protection itself.
III) The Pandemic as a Legitimate Reason for the Derogation of Human Rights?
While the current pandemic situation might constitute a time of “emergency threatening the life of a nation” in the sense of Art. 15 ECHR, which allows for states to temporarily derogate from some of their obligations enshrined in the ECHR, it is important to note, however, that certain core human rights must be upheld under all circumstances. Since the outbreak of the COVID-19 pandemic, an unprecedentedly high number of states invoked Art. 15 ECHR, inter alia Greece (p. 2). Nonetheless, as the list of non-derogable rights in Art. 15 § 2 ECHR includes the human rights obligations enshrined in Art. 2 and Art. 3 ECHR, Greece must always provide for a minimum protection, safeguarding a humane treatment.
IV. The Path to “No More Morias”
Persons who are unable to find protection in their home countries, who are persecuted, and seeking protection elsewhere, are particularly in need of the protection of the host states. Considering this analysis, the aspiration to have no more camps like Moria already failed in the existence of its successor Mavrovouni. While it is commendable that there are plans to establish new and better camps on Lesvos, it is unacceptable for protection seekers to have to endure these human rights shortcomings until that happens. However, we cannot paoint to Greece without also looking at the rest of Europe. The situation in Greece is mainly influenced by political developments at the EU level. In particular, the failed (p.6) „EU-Turkey deal“ and the pressure to enforce the Dublin system impede Greece’s ability to create adequate circumstances for protection seekers (p. 4). Compared to other EU member states, member states with external borders, such as Greece, continue to face a disproportionate increase in refugees. As a side effect, human rights standards are slipping into the background. These are issues that are largely based on structural deficiencies of the Common European Asylum System (p. 1195 ff.). To effectively avoid another humanitarian crisis as found on Lesvos in the refugee camp Moria, it is crucial that the European community works in solidarity, with each other and with the people seeking protection in Europe.