Lithuania Legalizes Border Pushbacks

On Friday, a European Commission spokesperson pointed out that current EU law contains provisions on border security. These include a rule that border guards must be properly trained, specialized professionals.

Lithuania’s Law Is Not Unprecedented
The accusation that people are being pushed back across the EU’s external borders is not a new one. NGOs and journalists have already documented many instances of this happening. Fabrice Leggeri, the former head of the EU border agency, Frontex, resigned last year over media reports that the agency itself was involved in pushbacks.

The accusations are often accompanied by allegations of physical abuse. The Council of Europe’s Committee for the Prevention of Torture (CPT) is one of the organizations that has reported on this. It issued a press release that primarily described people being beaten — with slaps, fists and batons — when they were arrested by the police, border guards or coast guards. Will legalizing pushbacks open the floodgates for this sort of abuse?

Zelvenska points out that similar measures had already been applied before the introduction of the Lithuania’s new law. “In general, this was quite a widespread situation at some point in various EU member states,” she explains, “when they adopted usually short-term temporary measures announcing a state of emergency, also announcing that there will be some sort of limitations to the right of asylum.” She cites the example of Greece. According to the Germany-based nongovernmental aid organization Pro Asyl, a rudimentary form of such regulations is also in place in Poland and Hungary.

EU Border Protection Must Comply with Fundamental Rights
Last week, a spokesperson for the European Commission said it was currently examining the law, which has not yet come into force, and was in close contact with the Lithuanian authorities. Concerning pushbacks, the Commission referred to its position that border protection must always be carried out in full compliance with fundamental rights.

Karl Kopp, the director of European affairs at Pro Asyl, doubts that the European Commission is fulfilling its task of ensuring that fundamental rights are protected. “As the guardian of the Treaties, the European Commission is obliged to enforce EU rights, the Charter of Fundamental Rights — to monitor, and also to impose sanctions when violations occur,” he says. “As to whether it is fulfilling this role — we have doubts.” Kopp is critical of the Commission. He says it lets a lot of things slide, and is failing to impose sanctions for human rights violations.

Border Officials to Make Case-by-Case Decisions?
The European Court of Justice in Luxembourg has already had to address Lithuanian asylum rules, last year. In a ruling on the state-of-emergency legislation in force at the time, the court made clear that it is a contravention of EU law if the imposition of a state of emergency effectively means that migrants have no access to any asylum procedure. Along with the possible use of force during pushbacks, denial of a formal asylum procedure is the other particularly difficult issue.

Lithuanian MPs have said the new regulation makes legal provision for border guards to evaluate cases on an individual basis, and to make decisions based on that, says Juskaite. However, in her view, border guards are not qualified to make such a decision. “We saw children being pushed out; we saw people who, during winter time, [were] pushed back to the woods with no shoes. We saw people who died in the forest in Lithuania,” the human rights activist told DW.

Council of Europe Says Pushbacks Must Stop
Last Tuesday, Lithuania’s interior minister, Agne Bilotaite, said the country has to defend itself. The news agency AFP quoted the conservative politician as saying: “When it comes to national security and human rights, there are no easy solutions, but also there are no alternatives.” Furthermore, the Interior Ministry claims to have intelligence that Belarus is negotiating an arrangement for new direct flights from Iran and Iraq.

Justifications like these are likely to fall on deaf ears at the Council of Europe. In late March, the Committee for the Prevention of Torture called on European governments to end pushbacks, in particular at the land and sea borders of the EU.

CPT President Alan Mitchell pointed out that even the complex situation at the border did not mean states could ignore their human rights obligations — and repeated that pushbacks are illegal.

EU states are required to act in accordance with the European Convention on Human Rights, which is overseen by the European Court of Human Rights in Strasbourg. According to Juskaite, it seems that, as a first step, Lithuanian NGOs intend to apply to this court and sue Lithuania there. They will also report incidents to other international bodies, such as the United Nations.

In principle, the European Commission could initiate infringement proceedings as well, if it considers that the new Lithuanian regulations constitute a violation of EU law. Right now, though, the Commission is presumably still assessing the situation.

Lucia Schulten is DW Brussels reporter, covering the EU.This article is published courtesy of Deutsche Welle (DW).