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The 19th of all EU-r rights: protection against expulsion and how the Charter contributes

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15 June 2021
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null - © Courtesy of Miloladesign

Jeancy Kimbenga is a Congolese national residing in Turkey. He and others like him, fled their home countries due to fears of violence and persecution. Five attempts were necessary for Jeancy Kimbenga to seek asylum within EU territory. Five times both Jeancy and his fellow evacuees were “victims of egregious fundamental rights violations that were at the very least related to Frontex activities”. This is at least what Front-LEX accused Frontex of, in an action brought before the EU Court of Justice at end of May 2021.1

Frontex is the EU’s Border and Coast Guard Agency (the acronym comes from French and stands for "external borders"). Given its dramatically increasing budget and tasks that come with highly fundamental rights sensitive responsibilities, Frontex is “a rising star causing many politico-legal controversies”.2

Contrastingly, Front-LEX is an NGO which “denounces and condemns”, as they put it, “Europe's policy of deterrence and closure”. The allegation of illegal pushbacks and other claims of asylum related abuses stands at the core of the story. Pushbacks are informal cross-border expulsions and/or denial of due process of persons who want to claim asylum at the border to another country.3

The Charter right in action

How all this is linked to the Charter? In the first paragraph of the Charter’s 19th article “collective expulsions”are forbidden. Such expulsions had already been forbidden under an Additional Protocol to the Council of Europe’s Convention on Human Rights (ECHR).4 However, when the Charter was drafted, seven of the EU Member States had not yet ratified the respective protocol. The issue was therefore not entirely uncontested. An open issue of whether national minority groups (that is groups of citizens of the respective state) would be protected against collective expulsions was present at this stage and, in the course of the negotiations, the original limitation of Article 19 (1) to “foreigners” was deleted – the provision also protects citizens, inlcuding persons belonging to national minorities.5

Of even higher practical relevance is the second paragraph of Article 19. It is essentially about migrants and prohibits removals, expulsions or extraditions to a State where the migrant “would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”: the so called non-refoulement principle. This provision is based on extensive case law of the European Court of Human Rights on the prohibition of torture (Article 3 of the ECHR). Non-refoulment not only applies in a situation where a person is trying to enter the territory of a State, but also outside the territory of a state, at sea, in situations where migrants come under “continuous and exclusive de jure and de facto control” of the authorities of a State.6

Article 19 therefore is not just about migrant removal from a specific territory but also about States otherwise exercising their control with the result that indviduals might end up in a third country where they are likely to face a serious risk of torture or other inhuman or degrading treatment. Consequently not every removal is necessarily illegal under EU law, but every such act activates procedural obligations for the EU (Frontex) and Member States (e.g. border guards).7

Two examples of how the EU legislation protects against pushbacks:

  • The Schengen Borders Code ((EU) 2016/399) obliges Member States to “act in full compliance with” the Charter and the 1951 Geneva Convention. Refusals of entry can, according to Article 14, only be issued in writing by a “substantiated decision stating the precise reasons” for the refusal in the individual case. The Regulation also enshrines individuals’ right to appeal. Member States must record each refusal and submit this information yearly to the European Commission.
  • Article 4(3) of the EU regulation on the surveillance of the external sea borders ((EU) No 656/2014) establishes that intercepted or rescued persons are interviewed before they are disembarked so as to “give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement”.

What do Member State constitutions say?

Contrary to the Charter, collective explusions are hardly explicitly dealt with in national constitutions. An exception rather than the rule is Hungary’s constitution which states that collective expulsions are prohibited.8

Most Member States have provisions in their constitutions that prohibit the surrendering of its own citizens to another State - unless such an extradition is based on an international treaty. Some constitutions also explicitly establish the entitlement to settle9 in, enter10 into or return11 to the State of one’s nationality.

Third country nationals are also provided with a certain protection – their expulsion needs to be based on law. Various constitutions forbid extradition for political reasons.12 However, the constitutions that explicitly incorporate the non-refoulement principle are surprisingly rare. This principle as laid down in the second paragraph of Art 19 of the EU Charter is, for instance, reflected in the constitutions of Finland and Hungary.13

So what?

Pushbacks risk being accompanied by additional fundamental rights violations such as “beatings, psychological violence, theft of personal property, kicking, electrical shocks, water immersion, arms broken by security forces, serious baton attacks”.14 The lion’s share of these alleged violations are committed by State actors. However, it is key that the European Union and its relevant body, in this regard – Frontex, do not become complicit.15

It is important to note that the Charter requires more than just stopping short of violating fundamental rights itself. Article 51 of the Charter requires Frontex proactively “promotes the application” of Article 19 and all other Charter rights. Hope therefore rests in the human rights mechanisms laid down in the Frontex regulation, including its newly appointed Fundamental Rights Officer and the 40 new Fundamental Rights Monitors to build and monitor a new fundamental rights culture.16

The UN called on all States to “[p]romptly and thoroughly investigate allegations of human rights violations and abuses at international borders”. The EU should lead by example rather than risk to lag behind.

Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!

1 Front-LEX invited Frontex to act pursuant to Article 265 TFEU, and to suspend or terminate Frontex’s activities in the Aegean Sea Region, in compliance with Article 46 (4) of the Frontex regulation (see submission of 15.2.2021). The latter provision obliges the Executive Director of Frontex to suspend or terminate any activity by the Agency that relates to serious and persistent violations of fundamental rights or international protection obligations. For the details of the action submitted in May 2021 see [here](https://scaa314b46a896a3a.jimcontent.com/download/version/1621958131/module/16133482624/name/Non-Confidentiel Version of the Application.pdf). Other current investigations and procedures against Frontex (by the European Ombudsman and others) are documented at the dedicated Statewatch run Observatory.

2 Borrowed from Carolyn Moser, see Moser, A Very Short Introduction to Frontex— Unravelling the Trajectory of one of the EU’s Key Actors, VerfBlog, 3.2.2020.

3 The UN special rapporteur on migrants considers that "in the absence of an individualized assessment for each migrant concerned and other procedural safeguards, pushbacks are a violation of the prohibition of collective expulsion and heighten the risk of further human rights violations, and are incompatible with States’ obligations under international human rights law, in particular the prohibition of refoulement." See Report on means to address the human rights impact of pushbacks of migrants on land and at sea. Report of the Special Rapporteur on the human rights of migrants, Felipe González Morales, 10 June 2021.

4 Art. 3 of Additional Protocol 4 provides nationals with the right not to be expelled (“by means either of an individual or of a collective measure”) as well as the right to enter the territory of one’s state. The protocol entered into force in 1968 and has been ratified by all EU Member States with the exception of Greece who did not even sign the protocol. Art. 1 of Additional Protocol 7 provides Procedural safeguards relating to expulsion of aliens. The protocol entered into force in 1988. It has been ratified by all EU Member States with the exception of Germany and the Netherlands.

5 Stefan Barriga, Die Entstehung der Charter der Grundrechte der Europäischen Union, 2003, S. 105.

6 ECtHR, Hirsi Jamaa and Others v. Italy, application no. 27765/09, para. 81.

7 On the complex situation see e.g. Daniel Thym: Menschenrechtliche Grenzen für Pushbacks – und der weitergehende Schutz nach EU-Sekundärrecht, VerfBlog, 17.5.2021.

8 Art. XIV of the Hungarian constitution.

9 See e.g. Art. 36 of the Estonian constitution.

10 See Art. 23 (4) of the Slovak constitution.

11 See e.g. Art. XIV of the Hungarian constitution. See also Art. 5 of the Cypriot constitution: “No citizen shall be banished or excluded from the Republic under any circumstances”.

12 Art. 10 Italian constitution, Art. 43(2) Maltese constitution, Art. 55 (4) of the Polish constitution, Art. 33(6) of the Portuguese constitution, Section 13(3) of the Spanish constitution.

13 Section 9 of the Finish constitution, Art. XIV of the Hungarian constitution.

14 See Refugee Rights Europe (RRE) and the End Pushbacks Partnership (EPP), Pushbacks and Rights Violations at Europe’s Borders. The state of play in 2020.

15 The term “fundamental rights” is mentioned 131 times over the around 100 pages of the Frontex regulation. For instance, according to Art. 46 Para 4 “the Executive director shall, after consulting the fundamental rights officer and informing the Member State con¬cerned, withdraw the financing for any activity by the Agency, or suspend or terminate any activity by the Agency, in whole or in part, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist”.

16 As of beginning of June Dr.iur. Jonas Grimheden, a renowned human rights expert, is the new Human Rights Officer who will head the increasing team of fundamental rights monitors at FRONTEX. The Fundamental Rights Officer is comparable to an internal Ombudperson. It is independent and the Executive Director “shall reply to the fundamental rights officer as to how concerns regarding possible violations of fundamental rights as referred to in point … have been addressed” (Art. 109 (3) FRONTEX regulation). On day 3 in his job, the new officer expressed his views on various aspects, including on Art. 46 Para 3 (see above).

17 See Report on means to address the human rights impact of pushbacks of migrants on land and at sea. Report of the Special Rapporteur on the human rights of migrants, Felipe González Morales, 10 June 2021.

Gabriel N. Toggenburg

Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.

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