Commissioner O’Flaherty has published today his written comments to the Grand Chamber of the European Court of Human Rights in the cases of C.O.C.G. and Others v. Lithuania, H.M.M. and Others v. Latvia, and R.A. and Others v. Poland.* The cases relate to the alleged summary returns of asylum seekers by each of the three states across their borders with Belarus. The Court’s judgments in these cases may provide further clarification about the Convention obligations of Council of Europe member states when faced with irregular arrivals across their borders, including in the context of the so-called instrumentalisation of migration by other states, such as Belarus.

In his comments, the Commissioner puts before the Court information about access to asylum and summary returns in each of the three respondent states and the human rights and humanitarian situation of those subjected to such returns to Belarus.

More generally, the Commissioner highlights the importance of not interpreting the case law in a way that could render ineffective the Convention’s protection against returning people to torture or inhuman or degrading treatment or punishment, which is prohibited under Article 3 of the Convention.

As regards the prohibition of collective expulsions under Article 4 of Protocol No. 4 to the Convention, the Commissioner comments on the current practice of member states interpreting the criteria set by the Court in its case-law in a way that may allow them not to carry out an individual examination of a person’s circumstances before returning them.

He also sets out how the instrumentalisation of migration might impact on the above-mentioned issues, noting that the challenges stemming from this phenomenon should be addressed in line with the long-standing principles set out by the Court.

The Grand Chamber will hold a hearing in each of the three cases on 12 February 2025.

* The intervention in R.A. and Others v. Poland complements an earlier submission to the Court in the same case, made on 27 January 2022, and includes observations based on the Commissioner’s recent mission to Poland.

• Read the written observations in the case of C.O.C.G. and Others v. Lithuania
• Read the written observations in the case of H.M.M. and Others v. Latvia
• Read the written observations in the case of R.A. and Others v. Poland

News - Date Wednesday | 23 October 2024
Case OI/2/2024/MHZ - Opened on Friday | 12 April 2024 - Decision on Monday | 21 October 2024 - Institution concerned European Commission ( No further inquiries justified ) - Country France

• Inquiry opened

  11/04/2024

• Inquiry ongoing

  12/04/2024

• Inquiry outcome

  11/10/2024

The Ombudsman has criticised the Commission for not being transparent about the human rights information it relied on before signing an agreement with Tunisia that includes EU funds for border management. She also called on the Commission to set out explicit criteria for suspending EU funding.

The Commission has not published any information about the risk management exercise it relied on for the 2023 Memorandum of Understanding (MoU), despite public concerns around the human rights situation in Tunisia, notably when it comes to the treatment of migrants.

The MoU includes provisions related to combating irregular migration as well as EU financial support for the provision of equipment, for training and technical support for Tunisian border management, for combatting anti-smuggling operations, and for reinforcing control of borders.

In an inquiry, the Ombudsman found that despite repeated claims that it was not required to conduct an explicit human rights impact assessment (HRIA) before signing the agreement, the Commission had in fact completed a similar assessment exercise.

While it is positive that the Commission had verified the human rights situation in Tunisia, including through reports from the EU delegation in the country, a formal human rights impact assessment of the deal would have been preferable. Such formal assessments are made public which can increase the effectiveness of mitigating measures to be taken against any human rights problems arising from the agreement.

The Ombudsman has called on the Commission to publish a summary of the risk management exercise on its website.

Criteria for suspending funding

In her inquiry findings, the Ombudsman stressed that the Commission has an obligation to ensure EU funds do not support actions that violate human rights. She asked the Commission to set out and publish concrete criteria for when it would suspend EU funding to projects in Tunisia due to human rights violations.

The Commission should also encourage organisations monitoring human rights in Tunisia to set up complaint mechanisms where individuals can report alleged violations of their human rights in the implementation of the funds. The Commission relies on reports from these organisations, which include the International Organization for Migration and the United Nations High Commissioner for Human Rights, in order to identify human rights violations.  

Noting that it is difficult for the public to have a complete picture of the human rights situation, the Ombudsman asked the Commission to compile information on monitoring it in a single document, publish the document, and update it regularly.

Commenting on its release, Ombudsman Margaret Kelly said:

“Resolving complaints as early as possible is much more effective and less costly than an elongated complaints process. In this report I am reflecting on the importance of improving and building public trust through robust investigation and meaningful learning from complaints. This has included the critical role of complaints as an early warning system in improving patient safety, the vital importance of complaints and engagement with local communities on the environment, and the importance of listening to complaints from some of the most vulnerable in our society, particularly those who may be experiencing housing difficulties.

More broadly this year we have also focused on introducing statutory complaints standards for public bodies. This is fundamental to improving trust in our public services. Mistakes and errors are unfortunately a part of life and can never be fully eradicated. However, together we must move from a culture which is sometimes defensive with a lack of openness towards a culture which values complaints as an opportunity to learn and prevent future harm.”

Le Médiateur, Marc Bertrand, a récemment rencontré la nouvelle Ministre-Présidente du Gouvernement de la Fédération Wallonie-Bruxelles, Mme Elisabeth DEGRYSE

28-10-2024

Ce mercredi 23 octobre 2024, le Médiateur de la Wallonie et de la Fédération Wallonie-Bruxelles, M. Marc Bertrand, a remis le 12e rapport de son institution à M. Willy Borsus, Président du Parlement de Wallonie, et à M. Benoit Dispa, Président du Parlement de la Fédération Wallonie-Bruxelles.

23-10-2024