In 2021 the Rosa Luxemburg Stiftung Southeast Europe published a set of guidelines in the publication Documenting Human Rights Violations on the Serbian–Croatian Border, written by Nikola Kovačević, a legal expert from Serbia. The guidelines aim to improve the documenting of and reporting on harmful border practices and human rights violations committed around the border between Serbia and Croatia. They place particular emphasis on the practice of refugee and other migrant pushbacks. The pushbacks have been consistently implemented since the end of 2016. Moreover, during this period many civil society organisations (CSOs) in several countries in the region have been involved in various kinds of activities that aim to protect the rights of refugees and other migrants, while also calling for an end to human rights violations along the border. These efforts have been grounded mainly in reporting, advocacy, and public condemnation, with only a few cases of strategic litigation. Consequently, it is now clear that collective expulsions, ill treatment, and the arbitrary deprivation of liberty have been occurring along the Serbian–Croatian border from 2016 to 2021 despite all the efforts of CSOs. Besides effective reporting, testimony collection and advocacy, efforts and capacities around strategic litigation should therefore be increased. Thus, these guidelines contribute to goals such as the following: 1. Guidelines should be provided for CSOs on where, how, and when to document and legally challenge unlawful border practices along the Serbian–Croatian border; 2. The credibility and reliability of reports published on individual incidents should be improved by applying a multidisciplinary approach; 3. The reader should be informed of possible legal avenues open at the national and international level for fighting harmful border practices. These legal avenues could be investigated jointly by Serbian and Croatian CSOs, alongside independent lawyers, and they could potentially lead to strategic litigation.
The consultative meeting Documenting Human Rights Violations on the Serbian–Croatian Border, took place on 6 December 2021. It was organised by the Rosa Luxemburg Stiftung Southeast Europe with activists and legal experts. Besides the publication author (Nikola Kovačević), two researchers from the Centre for Peace Studies Zagreb – Antonia Pindulić and Ana Ćuća, and one researcher from Klikaktiv Serbia – Milica Švabić, took part. The following people participated as commentators: the migration and asylum lawyer Flip Schüller, Selena Kozakijević from the Danish Refugee Council, Stefanos Levidis from the organisation Forensic Architecture, András Léderer from the Hungarian Helsinki Committee, and Aleksandar Marković from Solidarnost, Serbia. The session focus was on specific methodologies and possibilities for their implementation in the local context. The session moderator was Vladan Jeremić from the Rosa Luxemburg Stiftung Southeast Europe.
The guidelines provide a method for monitoring human rights violations in an original way. They combine a critical approach and an empirical method used for documenting the practical problems that the practitioners face. The guidelines are supported by a legal perspective on the international standards and mechanisms for the protection of human rights as guaranteed in various international conventions and protocols. One interesting section concerns EU law given that Croatia is an EU member state.
At the EU level, the European Charter of Fundamental Rights prohibits ill treatment, prescribes the right to asylum, and forbids collective expulsion in line with the principle of non-refoulement. It is important to mention that Article 4 in the Schengen Borders Code prescribes that external borders may be crossed only at border-crossing points and during fixed opening hours. Another document of relevance is the Return Directive, which applies to the returning of third-country nationals who are residing in EU member states illegally. Nikola Kovačević correctly explained that member states might decide not to apply this directive to third-country nationals who may be refused entry in line with Article 13 of the Schengen Borders Code. The study also mentions the Asylum Procedure Directive, which prescribes that each adult possessing a legal capacity has the right to make an application for asylum on their own behalf, and that application can also be made on behalf of their dependants.
When discussing the European Court of Human Rights (ECtHR), Nikola Kovačević emphasised that the relevant ECtHR standards regarding the prohibition of collective expulsion are among the most relevant standards available that relate to denial of access to territory. The ECtHR has reiterated that the right to access territory and the prohibition of collective expulsions cannot be theoretical or illusory laws – they must be practically and effectively applied. Hence, the domestic rules governing border controls may not render inoperative or ineffective the rights guaranteed by the European Convention on Human Rights and the related protocol, especially those in Article 3 of the Convention and Article 4 of Protocol No.4. It is worth noticing that this part of the guidelines cites relevant decisions made by the ECtHR such as Hirsi Jamaa and Others v Italy and Sharifi and Others v Italy and Greece.
Additionally, Nikola Kovačević has written about the domestic legal framework in Croatia. In his analysis of relevant norms, he concluded that there is only one legal remedy available to challenge the refusal of entry to Croatia: an administrative dispute can be set in motion by filing a lawsuit to the administrative court within thirty days of receipt of the decision on the refusal of entry, and this administrative lawsuit does not have a suspensive effect. In this context, deterrence measures should be mentioned, which are limited to third-country nationals found at the time of or immediately after illegal entry.
Afterwards, the author offered practical advice on how to conduct an interview with persons of concern. Due to the author’s great experience, the relevant questions that should be posed became obvious when he discussed the interview process in detail. He also covered the rights that persons of concern should have, such as free translation, free legal aid, medical assistance, etc. Also, Nikola Kovačević demonstrated a familiarity with the dire problems that are happening on the Serbian–Croatian border. This part of the publication will be very useful for each person who is helping refugees, asylum seekers, and migrants to overcome the problems they face.
At the end, Nikola Kovačević wrote about mechanisms of use to legal representatives in criminal, civil, and administrative proceedings before the Ombudsperson, Constitutional Court, ECtHR, UN, and special procedures before the UN. It should be underlined that border practices involve many collective expulsions and the illegal deprivation of liberty, and there is no adequate housing, medical assistance, etc.
At the consultative meeting dedicated to the publication, the major discussions focused on the possible impact of the guidelines. The professionals who spoke at the meeting included Flip Schüller, Stefanos Levidis, András Léderer, Milica Švabić and Selena Kozakijević, along with the author, Ana Ćuća and Antonia Pindulić, and other prominent guests and activists. The author mentioned the reasons for the guidelines being published, reflecting in particular on litigation cases and the importance of special relations of trust that need to be used when communicating with the legal field officer and person of concern. Kovačević emphasised the importance of colleagues from Croatia, whose knowledge of legal mechanisms in Croatia positively influenced this publication. Milica Švabić said that pushbacks are happening not only on the border between Serbia and Croatia, but also on the borders between Serbia and Romania, Serbia and Hungary, and Serbia and Bosnia. Ana Ćuća underlined that better cross-border cooperation is very important for further activities. Flip Schüller pointed out that the guidelines are very comprehensive, and he added that they should be published for the European Parliament and Council of Europe. Selena Kozakijević discussed the importance of these guidelines for frontline workers, specifically for those who may not have a legal background, and she shared her experiences from practice. Stefanos Levidis from Forensic Architecture explained that his organisation uses different digital tools and data analysis, including 3D modelling for the reconstruction of cases happening on the Greek–Turkish border. Forensic Architecture’s investigations employ “cutting-edge techniques in spatial and architectural analysis, open-source investigation, digital modelling, and immersive technologies, as well as documentary research, situated interviews, and academic collaboration”. András Léderer underlined that each border has its own problems, and he stressed that for those people on the move who are suffering from pushbacks, effective access to the asylum system has not been created. Aleksandar Marković reflected on EU standards and international mechanisms for the protection of human rights, as well as political perspectives on these issues. Almost all the participants pointed out that the education of persons who work with people on the move is essential, and Kovačević stressed that interpreters play a huge role in conducting useful interviews, which can form the basis for strategic litigation and the protection of human rights.
Author: Aleksandar Marković
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