Strengthen strategic litigation against Pushbacks and human rights violations

Illegal pushbacks are a common practice of the border police at the EU external borders. In an interview with  Antonia Pindulić from the Centre for Peace Studies in Zagreb we asked about role of law in challenging pushbacks and current developments.

Blindspots: At the Croatian border to Bosnia and Serbia, there have been daily pushbacks for years. The border police stop entire groups of People on the Move (PoM). They arbitrarily restrict their liberties and violate fundamental principles of the rule of law. As detainees, they are not informed of the reasons for their detention. They are not given access to lawyers, interpreters or doctors. There are no injunctions and thus no appeal procedures. Instead, PoM systematically become victims of extreme violence and ill-treatment by the border police. Without individual examination of the reasons for asylum, without access to justice and without respecting the international principle of “non-refoulement”, they are finally deported collectively to Bosnia or Serbia against their will. All of this is illegal. What explanations do you see for these continuing human rights violations?

Antonia Pindulić: There are no possible reasons which would even come close to justifying the atrocities that are being systematically committed at the external and many internal borders of the European Union (EU) towards civilians. What we are witnessing on the Croatian border – and many others – is the failure of the EU and its Member States to uphold the rule of law, and instead, the biggest, most severe human rights violations and torture continue for the seventh year now. The victims of this systematic, cruelest practices are persons in need: refugees, among which are children.

Blindspots: Apparently, the border police or their states seem to relatively rarely have to answer to the courts. Given the systematic violence and extreme frequency of illegal pushbacks, it is surprising that criminal charges and trials do not occur more frequently. We only know of one case each against Slovenia, Serbia and Macedonia; three cases against Croatia and about 20 against Hungary. Why do the border police seem to act with impunity?

Antonia Pindulić: The practice of pushbacks in Croatia is developed in a way that most of the victims lack material evidence: since their phones are destroyed or stolen, as well as their other belongings. These crimes happen in the woods in the inaccessible border areas. Further on, victims are usually scared to take any legal action because they are afraid that they will suffer even greater harm if they do so. And finally, even when victims initiate criminal proceedings for violation of their rights after the infringements have been committed, we are not aware of any proceedings that would be considered an effective investigation according to the established criteria. Although there have been numerous allegations of torture and violence and, to our knowledge, at least 20 criminal complaints for illegal expulsion and/or violence against refugees and other migrants – no indictments were brought and, accordingly, no perpetrators of reported crimes were identified, prosecuted or sanctioned in any of the reported cases.

Blindspots: You have been following the legal developments and jurisprudence regarding pushbacks in the Balkans, especially in Croatia for a long time. What has been a major highlight for you as a lawyer and what has been the lowest point in recent years?

Antonia Pindulić: The major highlight when it comes to jurisprudence was the final judgement of the European Court of Human Rights in the case of little Madina Hussiny. That was a long and hard legal struggle for the family, their lawyer and our Centre for Peace Studies CPS, and we are thrilled that it ended with justice, where the ECHR found violations of five human rights protected under the Convention. That was a big step, since for four years the Government has been availing any responsibility. Further on, this is a big step for recognition of violations towards refugees in Croatia generally, because it showed that the Croatian police is committing collective expulsions and other human rights violations towards refugees – as documented in thousands of testimonies, photographs, videos, medical documentation, reports from domestic and international organizations, institutions and media. And this might be a good step forward for human rights of persons on the move in Croatia and for the rule of law, if the Government takes steps to stop the systematic practice of pushbacks, as it should in the process of implementation of the judgement.

Unfortunately, it is difficult for me to pick the lowest points in terms of legal procedures in regard to violations of rights of persons on the move in Croatia, because there were so many. Every dismissal of the criminal complaint submitted for the collective expulsion and torture of persons on the move is a low point for human rights and for the rule of law.

Blindspots: Croatia has been applying for admission to the Schengen area as an EU state for a long time. Politically, it looks like the EU Parliament will agree to an admission soon. Many people claim that the extreme violence of the Croatian border police is the price to be paid for inclusion in the Fortress Europe. By becoming part of the Schengen area, Western European states will become more co-responsible and new control mechanisms and monitoring systems will be introduced. This may be reason for hope. On the other hand, Frontex or Schengen states like Poland and Hungary or others also grossly violate international law. What developments do you expect at the Croatian border once the country will be admitted to the Schengen area?

Antonia Pindulić: While we agree that expanding the Schengen space could be a positive move towards improvement of free movement inside the European Union, Croatia’s Schengen membership should be made conditional on the immediate end to the Croatian Government’s illegal and violent pushbacks of refugees and other migrants. Such practice at the soon-to-become Schengen border not only directly violates provisions of the Schengen Borders Code but represents a violation of international and EU law, including the Geneva Convention on the Status of Refugees.

Pushbacks have become a systematic method of violating fundamental Human Rights on the so-called Balkan Route. By speaking to People on the Move, thousands of pushbacks have been documented by the Border Violence Monitoring Network (BVMN) in the recent years. Media spoke about it. Governments and anyone interested could know about it. However, there is a lack of legal action. Therefore, the BVMN offered a training on strategic litigation in July 2022. Activists engaged in the field should improve capacities to identify People on the Move willing to lead cases of strategic litigation and to learn how to collect useful proves to address human rights violations. Blindspots participated at the training and spoke to trainers. This resulted in a Youtube video with Nikola Kovačević outlining which rights are affected when it comes to a pushbacks, and an interview with Antonia Pindulić about court cases against human rights violations in Croatia.

Antonia Pindulić is active for the Centre for Peace Studies in Zagreb/Croatia. Nikola Kovačević works as a Human Rights Lawyer in Belgrad/Serbia. Blindspots is member of the BVMN since 2021.