Definitions
Terminology
Pushbacks
Informal cross-border expulsions (without due process) of individuals or groups to another country. This lies in contrast to the term “deportation”, which is conducted in a legal framework, and “readmission” which is a formal procedure rooted in bilateral and multilateral agreements between states. The expulsion of a group of people, in the absence of legal procedures and without an individual examination of each case, is prohibited under international law. In the past ten years years, pushbacks have become an important, if unofficial, part of the migration regime of EU countries and elsewhere. The term “pushback” itself is a definition that came to initially describe the unfolding events along the EU borders of Hungary and Croatia with Serbia in 2016, after the closure of the Balkan route. The practice is now a hallmark of border externalisation which reaches from the Greek-Turkish border, all the way to the Slovenian-Italian-Austrian borders.
Asylum and Non-Refoulement
Though BVMN advocates for the rights of all people on the move regardless of legal categories and status, the laws around asylum are very relevant to understanding how illegal pushbacks occur. Modern asylum law is based on the conviction that every individual has a right to apply for international protection in the case that their life is threatened in their country of origin. Most national and international regulations concerning asylum are based on the 1951 Geneva Convention (Convention Relating to the Status of Refugees). Expanding off of the basic right to apply for asylum, the Geneva Convention includes the principle of non-refoulement (Art. 32, 33) which forbids states from returning anyone declaring the will to apply for asylum to a place in which they would be in likely danger of persecution. While there is no international legal definition of the term pushback, it can be understood as behaviour violating the general rule of non-refoulement. Prohibiting an individual from the right to apply for asylum is generally an infringement of the Geneva Convention and as such should be considered a violation of international law.
The principle of non-refoulement has since been adopted in the legislation regulating asylum procedures on the EU level. Examples can be found in Article 18 and 19 of the Charter of Fundamental Rights of the European Union and in Directive 2013/32/EU on common procedures for granting and withdrawing international protection. To this end, the responsibility of EU member states to comply with international standards on refugee protection is double: not only are all EU-member states signatories of the 1951 Geneva Convention but they are also beholden to the EU principles and regulations on its common asylum system.
Collective Expulsions
The collective aspect of pushbacks is also a key element which links them to breaches of international law. The removal (en masse) of transit groups from one state territory to another represents a violation of the prohibition against collective expulsions. Collective expulsions of whole groups, as they are conducted by several EU member states, deny each individual in this group the right to apply for asylum and explain their specific and individual reasons ( Art. 4 of Protocol 4 of the European Convention on Human Rights). Greece and Switzerland are not signatories to Protocol 4 to the Convention prohibiting collective expulsions, while Türkiye and the United Kingdom signed but never ratified the treaty. Nonetheless, the European Court of Human Rights protects people from refoulement under Article 3 (the prohibition of torture and inhuman and degrading treatment of punishment) when the person would be removed to a country where they would be subjected ot torture or ill-treatment. Equally, the principle of non-refoulement is recognized as an essential and non-derogable component of international refugee protection. Since derogations from the prohibition of torture and ill-treatment are not permissible under any circumstances, states cannot return nor remove a person at risk of torture or ill-treatment under any circumstances.
Law on Removals
Alongside mandated access to international protection, EU states must also align their domestic legislation with the Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals. Under this directive, obligations are enshrined, such as making detention a last recourse, mandating the provision of legal assistance and access to appeal, and halting returns to states not considered “third safe countries”. It is the responsibility of all member states, then, to ensure that these common principles are not ignored on the external borders of the European Union, whether dealing with people claiming asylum, or those transiting without this intent.
Types of violence
Torture
Torture is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” according to the United Nations Convention Against Torture and its widely cited definition of torture. Additionally, the Convention requires states to prevent all other acts of ill-treatment. The prohibition on torture and ill-treatment in international law is one of the fundamental values of democratic societies, together with the protection of the right to life, as it is linked with the respect for human dignity. It is embedded in various international instruments. On a European level, Art. 3 ECHR states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” No exceptions to the prohibition in ECHR Article 3 are permissible, even in defence of national security, in war or conflict, and irrespective of the circumstances and the victim’s behaviour. The prohibition of torture and inhuman or degrading treatment or punishment is also prescribed by the European Union Charter for Fundamental Rights in Article 4.
Ill-treatment
Ill-treatment can take a wide variety of forms of unlawful infliction of pain. However, it must reach a level of severity to fall within the scope of Article 3 ECHR. The assessment considers the duration, its physical or mental impact, and the victim’s sex or age. Ill-treatment that is not perpetrated through actual bodily harm consists of humiliation that debases an individual, diminishing his or her human dignity, that arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance.
Use of force
Use of force is often carried out by states and state actors to prevent persons from entering the territory. The ECtHR stated in its case law that the use of force “to prevent persons from entering a State’s territory generally cannot be regarded as lawful, necessary or proportionate, and may therefore well amount to ill-treatment or even torture”. Violent punching, kicking and beating with police truncheons for the purposes of retaliation and humiliation has been seen to amount to a violation of Article 3 ECHR. The overwhelming use of excessive and disproportionate force across all countries of reporting shows that violence and abuse during pushbacks is not an isolated occurrence and is commonplace across all pushback zones and police jurisdictions.
Electric Discharge Weapons
Electric Discharge Weapons are meant to be used to avoid lethal outcomes, yet they are “designed to inflict pain or suffering as a means of repelling or otherwise coercing the targeted persons”, according to the UN. As such, the UN Committee Against Torture has warned of the risk of cruel, inhuman or degrading treatment or punishment associated with their use. BVMN has consistently documented punitive and abusive use of Electric Discharge Weapons (EDW) across all countries of reporting. Testimonies collected by BVMN suggest that EDWs are overwhelmingly used as an unnecessary tactical tool to induce pain, fear and suffering.
Forced undressing
Forced undressing leaves individuals feeling anguished, inferior and is capable of humiliating and debasing an individual amounting to degrading treatment, the ECtHR recognized in its case law. In this sense, forced undressing has been deemed a violation of Article 3 ECHR. The EU Charter on Fundamental Rights protects human dignity in Article 1: “Human dignity is inviolable. It must be respected and protected”. The Charter extends protection to the integrity of the person in Article 4 EU CFR. BVMN has recorded that the forced undressing of individuals in pushback situations, in harsh weather conditions at times, often followed by the confiscation of their clothing is a cruel act done with the intention to humiliate and intimidate victims and thus amounts to torture or inhuman and degrading treatment or punishment.
Threats or violence with a firearm
Threats or violence with a firearm have been increasingly documented in pushback testimonies. Firearms have been used to threaten, intimidate or injure pushback victims. Additionally, this treatment incorporates psychological harm since it has been established that Article 3 ECHR incorporates mental suffering. Hence, mock executions with a firearm or discharging a firearm directly at an individual should be understood as a clear and sustained violation.
Inhuman treatment inside a police vehicle
Inhuman treatment inside a police vehicle has been repeatedly recorded by BVMN. Systemic use of police vehicles as locations of widespread inhuman treatment and abuse across several national contexts in the Balkan region has been reported by people on the move. Trends identified include dangerous driving, prolonged confinement and the manipulation of conditions within police vehicles as techniques of violence used to punish and intimidate those detained. Standards for the appropriate transfer of detainees developed by the Council of Europe, the European Committee for the Prevention of Torture (CPT) and the UN require transfer conditions which respect human dignity. Transport which subjects detainees to unnecessary physical hardship, are prohibited according to the UN Nelson Mandela rules. In view of the Council of Europe, transfers of prisoners in unacceptable or cramped conditions may amount to inhuman or degrading treatment or punishment, and in violation of Article 3 ECHR.
Inhuman treatment inside detention facilities
The detention of people on the move has become an intrinsic part of the pushback process. Testimonies collected by BVMN regularly indicate that whilst in detention facilities, such as police stations or pre-removal centers, people on the move are regularly withheld access to medical assistance, translators, legal counselors, access to information and therefore not having an effective remedy to challenge their detention. Deplorable or inexistent washroom facilities or lack of access to food and water have also been reported. Consistently, testimonies describe dilapidated detention conditions without proper sleeping or bathroom facilities, with people often being held in overcrowded rooms. Detention in itself can amount to a violation of Article 3 ECHR when it is based solely on migration status and had been imposed intentionally and continued for purposes such as deterring, intimidating or punishing people on the move. The ECtHR states in its case law that when individuals are subjected to hardship in detention that goes beyond the unavoidable level of suffering inherent to the state of being deprived of liberty, may well be experiencing treatment that is contrary to Article 3 ECHR.
Sexual or gender based violence (SGBV)
Sexual or gender based violence (SGBV) has been documented in the context of pushbacks in incidents where people, in particular women and members of the LGBTQIA+ group, were forcibly searched by male officers, forced to undress, sexually harassed or assaulted. Some cases mention rape perpetrated by border authorities against people on the move during pushbacks .
Hate Crimes
BVMN has documented a range of incidents that may amount to hate crimes, in which the race, religion, or ethnicity of respondents was explicitly referenced in violent acts committed against them. A criminal act becomes a hate crime when it is motivated by bias or prejudice of the perpetrator about the group to which the victim belongs or is perceived to belong, according to the OSCE practical guide on Prosecuting Hate Crimes. Hate motivated crime and speech are illegal under EU law. The 2008 EU Framework Decision on combating certain forms of expressions of racism and xenophobia requires the public incitement to violence or hatred based on race, colour, religion, descent or national or ethnic origin to be codified as a crime. Article 21 of the EU Charter prohibits any form of discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. The prohibition of discrimination is regulated by the ECHR in its Protocol 12.
Theft of personal belongings
Theft of personal belongings has been a fixture of the border violence coupled with refoulement as reported by people on the move. Perpetrators of violence often rob people of their personal belongings or destroy them. Phones, money, jewelry, medicine, identity documents, power banks are among the most common items being stolen or destroyed by perpetrators. Particularly, stealing or destroying mobile phones or devices has been one of the elements at the core of border violence across borderlands with the purpose to deter immediate entry into the territory after a pushback, to prevent people from recording violations perpetrated against them or to contact support, medical or otherwise. In some border locations, people reported that their belongings were burnt in front of them, including sleeping bags or winter coats, or that their mobile phones were thrown into the sea before being pushed back. The practice of stealing or destroying mobile devices that people on the move make use of to navigate themselves to reach safety after a pushback can be seen, in certain circumstances, as exposing the person to life endangering circumstances in violation of Article 2. The ECHR protects the right to property in Article 1 Protocol 1 to the Convention. The article states that: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”. The “theft of personal belongings” shall not be mistaken for the legal procedure of “confiscation” which is regulated strictly by law and constitutes a legal act.