Part II: time for the Commission to act - Let us not forget about EU fundamental rights

by: in Law

About a year ago, this blog published my contribution “Let us not forget about EU fundamental rights,” which addressed the situation at the EU’s external borders. At the time, the decision of the ECtHR in the case of N.D and N.T v. Spain, was heavily criticised for failing to protect the right to request international protection.

The judgment was rightly scrutinized for failing to effectively protect the rights of the applicants, but little attention was given to the violation of EU fundamental rights in the discussion of the situation at the Spanish, and other EU external borders. Hence, my contribution served as a reminder that the situation at the Spanish border in Melilla, and every other report of pushbacks and violence at the EU borders, violates the EU Charter of Fundamental Rights and secondary EU law. My contribution also raised the role of the EU, in particular the Commission, and the Member States, calling for greater emphasis on their responsibilities and obligations in protecting fundamental rights. A year has passed, and we can ask ourselves about the current situation? Have the relevant actors lived up to their responsibilities? The following paragraphs will focus on the situation at the Croatian border and the role of the Commission.  

Violence at EU’s external borders has been reported in several Member States, including Italy, Greece, Slovenia, Hungary, Cyprus and Malta. However, Croatia is one Member State that has continuously remained in the limelight for its violent and illegal pushbacks. In mid-December 2020, the European political group ‘The Left’ published the “The Black Book of Pushbacks”, a two-volume publication, spanning over 1500 pages documenting testimonies of “sadistic, merciless, humiliating and degrading” violence, amounting to torture and ill-treatment, carried out by border agents, member state police forces and soldiers at EU’s external borders. Also here, Croatia is given a central role, as volume two is almost exclusively dedicated to the situation in Croatia. Furthermore, there are currently two cases of pushbacks pending in front of the ECtHR against Croatia (M.H. and others and S.B. and others). With regard to the latter case, the Council of Europe Commissioner for Human Rights issued a third party intervention on 22 December 2020, in which she qualifies the practice on the Croatian border as systematic and violent collective returns.

It should be added that countless reports of violence and pushbacks at the Croatian border have been published the last couple of years. The most recent in the last month of 2020. It would be beyond the scope of this blogpost to mention them all and go into depth of violence they entail, but the reports stem from prominent human rights organisations such as the UN High Commissioner for Refugees, Human Rights Watch, Amnesty International and the Danish Refugee Council etcetera. The evidence shows a border practice that violates rights laid down in the EU Charter (such as prohibition of torture, inhuman and degrading treatment and the prohibition of collective expulsion). It furthermore violates EU secondary law (specifically the EU Return Directive), giving further effect to the right of asylum as laid down in the Charter.

Considering all the evidence of flagrant violations of EU fundamental rights, the Commission should and must act. There is simply no excuse for inaction. Action is not only required from a moral perspective, but I suggest that this is also the case from a legal perspective. The Commission is bound to respect and promote the fundamental rights of the Charter in accordance with its powers (under Article 51 of the Charter). The duty to promote does not only entail promoting awareness and knowledge of the Charter, but also implies a duty to adopt concrete measures to ensure the enjoyment of rights, as long as such measures respect the principle of subsidiarity and do not go beyond the respective powers of the actor in question, as stipulated in Article 51. Thus, the Commission should make use of its powers to adopt measures, such as infringement proceedings (see for instance those adopted against Hungary’s border practice), when Member States infringe EU law. Starting infringement proceedings, as it stands, is a discretionary power. However, in cases of serious fundamental rights violations, is it not appropriate and timely to acknowledge that the Charter may impose a duty on the Commission to make use of this power? Especially since such duty would respect the above-mentioned limitations of article 51 of the Charter.

Until now, no concrete measures (that are publicly available) against Croatia have been taken by the Commission. On the other hand, we have seen how the Commission gave its green light for Croatia to join Schengen and allegations have been made towards the Commission for covering up Croatia’s failure to supervise its border police with funds from the EU. Such allegations have now ended up in front of the European Ombudsman who opened up an inquiry into the possible failures of the Commission in November 2020. In end-October 2020, after once again been alerted of the situation at the Croatian border, the EU Commissioner for Home Affairs, tweeted that she is taking the reports “very seriously” and that she would discuss the reports further with the Croatian authorities. Perhaps is this the moment that the Commission stop turning a blind eye to the situation at the Croatian border? It remains to be seen. One thing is nevertheless for sure: initiating infringement procedures against Croatia’s border practice will send the message that EU fundamental rights are not forgotten nor empty promises, and that in case of violations by the Member States, legal consequences will follow.

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  • E.S. Börjedal

    Elin Börjedal joined the department of International and European Law as a PhD researcher in January 2019. Her research focuses on the multilevel governance of fundamental rights in the EU, more specifically, on the division of responsibilities between the EU institutions and the Member States in fundamental rights protection, the existence of a positive duty to protect fundamental rights, and the self-perceptions of the different actors involved in ensuring such protection.

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