Freedom re-publishes a special report from in Are You Syrious?
The first Black Book was published in 2020 amidst fears for our health, isolation, barriers to travel — a selfishness for the well-being of our own nations, and an utter dominance of media streams with just one topic.
Yet, the team behind the first Black Book were determined to share the testimonies of hundreds of people who have been victims of systematic human rights abuses at the EU’s borders. With the support of the Left party in the EU parliament, the hefty volumes were once again presented to the EU Commission in December 2022.
The Black Book is a collection of all the testimonies from people-on-the-move by member-organisations of the Border Violence Monitoring Network — Are You Syrious? is one of those organisations. Volunteers who are helping with aid in various ways, in different locations on the Balkan Route, conduct interviews with people who have suffered violence, illegal deportation — and in some cases, worse.
This Special includes the first of the introductory chapters from the Black Book. This one looks at legal developments in the last year concerning countries such as Greece, Slovenia, Croatia and Austria. Every court case brings welcome publicity, yet the practice of pushbacks continues.
“The Black Book of Pushbacks is dedicated to all survivors of border violence and other human rights violations. Thanks to all those who chose to share their stories with us.”
Authors: Alexandra Bogos (BVMN) and Iza Thaler
The Border Violence Monitoring Network has documented over the years a deterioration in the protection of human rights throughout Europe. The respect for rule of law in European countries has become a salient concern and many predict a deepening crisis in the absence of a functional, independent and shielding judiciary to maintain checks and balances.
In Greece, an official policy of pushbacks seems to have contaminated the judiciary. Legal aid organisations supporting victims of pushbacks to litigate in domestic courts had their cases closed by public prosecutors who invoked a lack of evidence, whilst simultaneously refusing to interview witnesses or rejecting evidence. Many of the cases have been referred to the European Court of Human Rights (ECtHR) as domestic remedies were clearly ineffective. Legal practitioners similarly resorted to litigating cases directly to the ECtHR or to UN Committees.
Over the past two years, the ECtHR communicated 10 cases of pushbacks against Greece under Art. ECHR (prohibition of torture and inhumane or degrading treatment), gathering 53 applicants and two complaints on access to asylum (Art. 13, effective remedy). At the ECtHR, complainants cannot argue that they have been subjected to collective expulsions as Greece has failed to sign and ratify Protocol 4 to the Convention prohibiting collective expulsions. Most pushback cases could find remedy in Art. 3, since a pushback is illegal under the general principle of international law of non-refoulement, or under Art. 2 (right to life) if the person’s life was endangered or the person died, as well as Art. 13 (effective remedy) if the person’s right to apply for asylum was denied.
Notably, in 2022, the ECtHR issued their judgement in Safi et al. v. Greece. The case originated from the sinking of a vessel in the Aegean Sea where 11 people died. The judgement came eight years after the events, and the Court found violations of Art. 2 and Art. 3. The Court condemned the Greek state’s failure to engage adequately in Search and Rescue (SAR) and to properly investigate the incidents. Moreover, the Court found violations of Art. 3 with regards to the body searches of some of the survivors by the authorities. The case could be a milestone in SAR operations and potentially with regards to allocating responsibility for pushbacks.
In Slovenia, the case of A.M. was decided positively at the Slovenian Supreme Court. A.M. twice sought asylum in Slovenia in 2019 and both times was readmitted to Croatia on the basis of a bilateral agreement. The Court found that Slovenia violated the applicant’s right to access asylum, prohibition of collective expulsions and prohibition of torture, which includes the prohibition of refoulement.
The Croatian authorities subsequently pushed A.M. back to Bosnia after accepting the applicant from Slovenia, a practice BVMN has identified as “chain pushbacks”. The Court found that not only does the principle of non-refoulement establish the right not to be returned to a country where the individual is at risk of torture, but it also creates an obligation for the authorities to make an assessment about the safety of the individual upon return to the country, even between European Union Member States. Despite the Court’s positive judgement, the Slovenian government refused to issue A.M. a visa, thwarting access to a guarantee to which A.M. was entitled.
The UN Committee on the Rights of the Child recently communicated a pending case against Croatia and Slovenia for the chain refoulement of a Rohingya minor. The minor was brutalised by Croatian border officers, had his belongings burnt and his shoes taken before being pushed back on numerous occasions, including being the victim of a “chain pushback” from Slovenia.
Furthermore, “chain pushbacks” have been shown to be illegal in Austria. The Administrative Court of Styria ruled in favour of the applicant in a case of readmission to Slovenia and subsequent pushbacks to Croatia and finally to Bosnia. The Court recognized that the Slovenian police’s compliance with readmissions from Austria without objection “can be explained by the subsequent chain deportation to Croatia and finally to Bosnia and Herzegovina”. The Court also found that readmissions to Slovenia without due process are a common practice of Austrian border guards as “the described procedure of the interrogated security bodies gave the Court the impression that the method of ‘pushbacks’ is frequently applied”.
In November 2021, ECtHR recognized, for the first time, that Croatian authorities had perpetrated pushbacks in the long-awaited case of M.H. et al. against Croatia. The case concerns a family of asylum seekers from Afghanistan who, upon entry to Croatian territory in 2017, was denied access to asylum and was pushed back to Serbia. During the night, Croatian border guards transported the family in a van to the border and instructed them to follow train tracks towards Serbia, which resulted in a train hitting and killing their youngest daughter, six-year-old Madina Hussiny. The Court found that Croatia violated several rights protected by the Convention: the right to life for ineffectively carrying out an investigation into the death of little Madina, degrading treatment of the surviving children who were detained for longer than two months and whose prolonged detention lacked justification, and the right to individual application for the failure of Croatian authorities to comply with the interim measures and denying the lawyer access to the family in detention. Remarkably, the Court found in the case of the Hussiny family that Croatia violated Article 4 of Protocol 4 prohibiting collective expulsions.
In addition, the importance of the case lies also in the fact that the Court acknowledged the modus operandi of pushbacks: people’s phones, documents, and belongings are taken and destroyed making it difficult for victims to bring evidence in courts. The Court relied on the similarity between the victims’ account and available reports on pushback practices. The Court also acknowledged that the Croatian state deliberately obstructed the work of our member organisations, Are You Syrious? and Centre for Peace Studies, as well as their lawyers, in order to prevent the case from reaching Strasbourg.
At the same time, the ECtHR appears to have lowered protection standards in other cases of pushbacks. A.A. et al. v North Macedonia originated from events that took place on 15–16 March 2016, with the official closure of the Balkan route, when N. Macedonia summarily returned over 1,500 people to Greece. This constituted a large-scale pushback event and a case of collective expulsion. Instead of condemning the acts, the Court expanded the exception in N.D. and N.T. v Spain and blatantly ignored evidence provided in the case that legal pathways, while available, were ineffective and inaccessible at the time.
Despite consistent reports from civil society organisations (CSOs), United Nations (UN) Rapporteurs’ and international media coverage, pushback practices, both at the EU’s external borders and within the bloc, have continued, uninterrupted. The opening of a new route to safety through Belarus, and the response of the Baltic states, confirmed pushbacks as the preferred policy instrument to address the issue of a chronic rift between the principle of freedom of movement and the need to migrate and seek safety on the one hand, and the flawed migration policy of ‘Fortress Europe’ on the other.
Published with thanks to editors Hope Barker, Milena Zajović and the whole team involved in producing the Black Book of Pushbacks. To find out more about BVMN visit their website.