Policy Brief: Criminalization of POM

In recent years, securitisation discourses have shifted the framing of migration as a human rights issue bound up with Cold War politics, to an issue of criminality and the fight against transnational organised crime. This has, in turn, led to an increasing overlap between criminal law and migration management at the transnational level in the European Union (EU) which is reflected by the increase in legislation governing the movement of people. Nothing reflects this phenomenon more clearly than the cases of strategic litigation brought against people-on-the-move (POM), and the lengthy prison sentences that accompany them. The criminalisation of movement in general has been in the focus of the Border Violence Monitoring Network’s (BVMN) advocacy work since its conception in 2017.

When analysing the relevant policy documents provided in the timeline above, there is a clear distinction between international human rights instruments at the UN level, and the ways in which such rights are provided for in EU legislation. In 2000 when the UN established the Convention Against Transnational Organised Crime, ratified by all EU Member States (MS), there was a clear emphasis on dividing the definitions and charges of ‘smuggling’ and ‘trafficking’ through the establishment of two separate protocols. Furthermore, the former protocol clearly outlined the rights of POM being smuggled and prohibited the criminalisation of individuals who were subject to smuggling. At the EU level, the distinctions between smuggling, trafficking, and illegal migration are ill-defined. The creation of an internal free market and free movement as put forth by the Schengen acquis required, inter alia, a commitment to strengthening the EU’s external borders as a means of protecting the internal body of MS. In fact, the offence of facilitation of illegal entry is first mentioned in Article 7 (1) of the Schengen Convention (1990). In 2002, the Facilitator’s Package furthered this agenda by putting forward the goal of the Commission to combat both illegal migration and the aiding of illegal migration. The package even stands in direct contradiction to the UN definition of smuggling; it doesn’t consider financial gain as intrinsic to this definition, simply an aggravating circumstance. Again, the mechanisms behind this are somewhat blurred with the terms used in the policy document such as ‘smuggling’, ‘financial gain’, and ‘humanitarian assistance’ left open and undefined, with full discretion being left to MS to decide how sanctions are transposed into national legislation (Article 3).

BVMN Submission to the Evaluation of Frontex Regulation

Since its inception, BVMN has collected 1,575 pushback testimonies, affecting an estimated 24,990 people (BVMN, 2022). During pushbacks, BVMN has noticed a trend of ongoing and systematic violations of the fundamental rights of people on the move, constituting serious violations of the EU Charter of Fundamental Rights in Frontex operational areas. BVMN seeks to bring to the Commission’s attention information with regard to potential fundamental rights violations perpetrated with the acquiescence, complicity, or knowledge of Frontex. Through this submission, BVMN seeks to show that Frontex’s mandate is not in full compliance with its 2019 Regulation and that an expansion of its mandate at the expense of accountability mechanisms has provided the Agency with more powers and a toxic culture of impunity.

The European Commission will address at the end of the consultation process, in particular, the evaluation criteria of effectiveness, efficiency, coherence, relevance, and EU added value. In the absence of criteria of respect for fundamental rights, BVMN seeks to submit evidence that Frontex is not compliant with its fundamental rights obligations and the Regulation leaves a large margin to the Agency to act with impunity.

Islets, Interim Measures, and Illegal Pushbacks: Erosion of Rule of Law in Greece

 

This report documents the recent increase in use of Rule 39 measures on the Greek mainland, in order to secure access to international protection. It specifically details and analyses three case studies whereby transit groups were stranded on islets in the Evros river over the months of May and June 2022, and sent distress calls to state and civil society actors across Greece expressing their will to claim asylum. In all three cases, civil society organisations, including the Greek Council for Refugees, Human Rights360, AlarmPhone, and The Rule 39 Initiative submitted applications for interim measures on the behalf of the transit groups, and a Rule 39 decision was indicated by the European Court of Human Rights, legally binding the Greek state to provide temporary access to Greece and material reception conditions. Despite the Court’s rulings, as well as the extensive public documentation of the cases on social media platforms and in news outlets, all three transit groups were reportedly pushed back to Turkey after several days on the islets without food, water, or medical care.

In order to contextualise these events, the report briefly introduces a history of Evros islets in the context of pushbacks, the lack of access to asylum on mainland Greece and interim measures at the European Court on Human Rights. It subsequently discusses the ongoing responses and evolving consequences of the Greek state’s violations of the Court’s rulings, including by the UN Special Rapporteur on Human Rights Defenders, Members of the European Parliament, the LIBE committee, the Greek Ministry of Migration and Asylum, and other actors in Greece. The report additionally observes the concerning trend of criminalisation of civil society organisations and the use of smear campaigns to restrict migrant rights defenders from operating. In the context of the cases documented here and the recent investigation by Lighthouse Reports we, the Border Violence Monitoring Network, call for Greece to be held accountable and for all operational and financial support to be suspended until the rule of law is restored.

Criminalisation Report: Accused of Solidarity

This report documents cases of criminalisation attempts experienced by BVMN’s member organisations in several countries, mainly in the Western Balkans and Turkey in 2021. In order to contextualise these events, the report briefly introduces a definition of criminalisation, the political and legal environment, as well as relevant actors, and forms of criminalisation. In addition, it discusses the consequences of criminalisation for BVMN’s member organisations and incidents of criminalisation they were subject to, listed after the countries they are located in.

The report observes a trend of deterioration in the situations of CSOs and their team members due to such incidents. Different forms of criminalisation, namely formal and informal criminalisation, scrutiny, obstacles related to visa procurement, defamation in the media and smear campaigns, as well as threats, harassment, and violence had huge negative consequences for the contributing member and partner organisations of the Network.

BVMN and its member organisations are one of several CSOs working in an increasingly restrictive environment to support and monitor the fundamental human rights of people-on-the-move in the EU. Here, the restrictive legal environment for CSOs working in this sector is combined with increasing societal, administrative, and police pressure. This is no longer a country-specific phenomenon, but rather a European- wide trend that, in line with the EU’s externalisation policies on migration in general, extends well beyond its external borders.

This report was produced within the Border Violence Monitoring Network’s (BVMN) Internal Violence Working group. BVMN is a network of watchdog organizations active in Greece and the Western Balkans including No Name Kitchen, Rigardu, Are You Syrious, MobileInfoTeam, Push-back Alarm Austria, Josoor, InfoKolpa, Centre for Peace Studies, BlindSpots, Mare Liberum, Collective Aid, and Fresh Response. As such, this document was produced through joint collaboration of these groups.

 

 

Violence Within State Borders: Greece

This report considers violence within state borders experienced by people-on the-move (herein POM) and those seeking asylum in Greece. It draws on 40 testimonies collected in the last months of violence in detention, police brutality, racist violence, and hate crimes, as well as open- source data on structural forms of violence present in the management of migration and asylum in Greece. Since the BVMN’s last report on internal violence in Greece in October 2020, the situation has continued to deteriorate, leaving POM at increasing risk of both physical, actual harm, and structural violence against their living conditions and immediate amenities. Continue reading “Violence Within State Borders: Greece”