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The EU Agency for Fundamental Rights (FRA) published a damning report accusing EU members of failing to look into credible allegations of “serious, recurrent and widespread rights violations against migrants and refugees during border management.”
This report concerns national investigations of incidents of loss of life and alleged ill-treatment that occur during border management at the EU’s external land and sea borders.
Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal. The way EU Member States organise and run their justice systems is primarily a matter of national law. EU law relies on functioning national justice systems.
The European Union Agency for Fundamental Rights (FRA) – along with UN and Council of Europe bodies, national human rights institutions and civil-society organisations – regularly reports serious, recurrent and widespread human rights violations affecting migrants and refugees at the EU’s external land and sea borders.
Many reported incidents entail physical violence, ill-treatment, failure to rescue people in distress, stripping people of their clothing, stealing and/or destroying their property, forced separation of families and summary expulsion of those seeking asylum. Such alleged conduct would often amount to a criminal offence under national law.
Five examples illustrate the variety of incidents reported and the challenges and gaps in the investigations.
In 2020, the Croatian police intercepted four Afghans who entered the country circumventing border controls. They kept them for 2 days, allegedly intimidating, humiliating and beating them. Their lawyer reported that one of them was also subjected to sexual violence. The Afghans were summarily returned to a neighbouring country. The incident is under investigation. According to the victims’ lawyer, the perpetrators have not been identified.
In April 2020, a European Border and Coast Guard Agency (Frontex) plane located an unseaworthy boat with people in distress at sea. The Maltese authorities coordinated the rescue operation. They instructed a fishing vessel to rescue the people, which took them back to Libya. In the 6 days at sea, 12 of the people on the boat died or went missing at sea. Following a civil-society report that Malta omitted to rescue 56 asylum seekers who were adrift at sea, the judicial authorities opened an inquiry for wilful homicide and attempted wilful homicide. Six weeks later, the magistrate concluded that there was no prima facie basis for criminal charges to be instituted. The 400-page report refers only briefly to the testimonies of the survivors.
In September 2021, a visibly pregnant woman from Syria arrived in Cyprus by sea with her husband and her 3- and 1-year-old children. She was allowed to disembark, whereas the rest of the family was sent back to Lebanon, where they came from. A doctor visited the woman. She was then left on the pier where she spent the night on a self-made bed of wooden pallets. The next day her waters broke, and she was transported to hospital where she gave birth. The Independent Authority for the Investigation of Allegations and Complaints against the Police investigated the case and found that the police duly handled it, noting also that a female police officer accompanied the pregnant woman while waiting for her medical examination. The Attorney General gave instructions to close the case, as there was no criminal or disciplinary responsibility.
In June 2022, two people from Palestine recognised by Greece as refugees were stopped by police officers for a document check on the island of Kos. The police allegedly took their documents, money and mobile phones. They then allegedly took them to a place where they were subjected to physical and sexual abuse, before being abandoned on a life raft at sea. From there, the Turkish coastguards rescued them. An official complaint is pending before the public prosecutor.
In October 2022, the French police stopped an unaccompanied child hiding in a truck destined for the United Kingdom. Volunteers then found the child unconscious – his skull was fractured and his cheekbone and lip were swollen. They called an ambulance. The volunteers deduced that the injuries were the result of the use of force when stopping the child. They reported the case to the public prosecutor of Boulogne-sur-Mer. When the investigators tried to contact the child a month later, he had left for the United Kingdom and could not be found.
Despite regular and continued reports about serious rights violations at borders, there is little information about investigations into such allegations.
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) expresses concern that few investigations take place into allegations of ill-treatment and other forms of inhuman and degrading treatment at borders. It also notes that existing investigations ‘often do not comply’ with the Council of Europe criteria for effectiveness. If perpetrators are not identified or held accountable, the cycle of ill-treatment remains unchallenged.
Victims of human rights violations at borders find it difficult to seek redress in national courts. For victims, initiating legal proceedings is often not a priority. It is also challenging given their lack of legal knowledge, lack of means to bring a case and concerns about negative repercussions should they initiate a complaint. As most incidents occur in remote areas, often at night, there is usually scarce solid evidence.
To remedy the situation, FRA has been calling for establishing fundamental rights monitoring mechanisms at borders. It has also been calling for prompt and effective investigations of all alleged rights violations.
In its 2023 submission to the European Commission’s Rule of Law Report, FRA underlined the broader impact of ineffective judicial protection against widespread rights violations at borders. It poses a risk to the respect of the rule of law as enshrined in Article 2 of the Treaty on European Union.
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