In addition to his speech at the 2nd International Conference on Migrant Smuggling (see the first item in the Migration Newsletter), Michael O'Flaherty, Council of Europe Commissioner for Human Rights, has undertaken several other migration-related activities.
On 6 September, Commissioner O’Flaherty intervened in a case concerning freedom of expression and association in Hungary.
The case, Hungarian Helsinki Committee v. Hungary, currently pending before the European Court of Human Rights, relates to the introduction of Article 353/A of the Hungarian Criminal Code in June 2018. The case was brought by a non-governmental organisation active, among other areas, in defending the human rights of migrants.
In his written observations, the Commissioner presented information that the Court may consider in evaluating the following points: that the introduction of Article 353/A of the Criminal Code is part of broader restrictions on the freedom of expression and association for civil society in Hungary; that the criminalisation of “facilitating or supporting illegal migration” through Article 353/A was neither necessary nor foreseeable, as required by Articles 10(2) and 11(2) of the European Convention on Human Rights; and that several aspects of the article raise questions about the stated purpose behind its introduction.
From 16 to 18 September 2024, the Commissioner visited Poland for a mission focusing on the situation at the Polish-Belarusian border and the human rights of refugees, asylum seekers, and migrants. The mission was prompted by longstanding reports of incidents at the Polish-Belarusian border and followed up on two letters sent in July to the Prime Minister and the Marshal of the Senate of Poland addressing the issue.
The Commissioner commended Poland for welcoming and assisting millions of people fleeing Russia’s war of aggression in Ukraine. He also acknowledged the challenges posed by the instrumentalisation of migration and destabilising actions of the Belarusian authorities at the Polish-Belarusian border. However, he expressed concern that Poland's current practice of summary returns at the border—facilitated by legislative changes adopted in 2021—does not fully comply with international human rights standards. The practice of returning individuals to Belarus without an individual assessment, including cases where people have formally requested asylum on Polish territory, exposes them to the risk of serious violations of rights protected by the European Convention on Human Rights.
Under the Convention, states are prohibited from exposing anyone to a real risk of death, torture, or inhuman or degrading treatment or punishment, even when faced with significant migration challenges. Returns without individual examination may also violate the prohibition of collective expulsions. The Commissioner called on Polish authorities to halt all summary returns to Belarus and to ensure that every person seeking international protection in Poland is given a thorough individual assessment of their case. He also emphasised that particular attention must be given to vulnerable groups among asylum seekers and migrants.
The Commissioner has received credible reports of isolated misconduct by some members of the Polish Border Guard against asylum seekers and migrants. He welcomed the Border Guard leadership’s commitment to a zero-tolerance policy for such actions. The Commissioner also acknowledged the establishment of a specialised prosecution unit to address such cases and encouraged continued efforts to investigate and sanction any misconduct.
The Commissioner urged Polish authorities to invest in creating structures for meaningful dialogue with expert civil society organisations that provide legal and humanitarian assistance at the border. He recommended re-establishing a consultation platform between these organisations and the Border Guard, similar to the structure in place prior to 2015. He also expressed concern about reports of criminalisation of individuals involved in providing legal and humanitarian assistance at the border, calling for any charges related to such legitimate human rights activities to be dropped.
The Commissioner welcomed Poland’s efforts to conduct search and rescue operations at the border, the initiative to embed specialised human rights coordinators in all Polish Border Guard units, and the human rights training provided to Border Guard members. However, he noted that only a few civil society organisations have been granted access to the buffer zone established at the Polish-Belarusian border in June, which was recently extended for another 90 days. He emphasised that humanitarian access is crucial to protecting the human rights of those stranded in the border area and preventing inhuman or degrading treatment or even threats to life. He called for the establishment of clear and standardised criteria for granting entry permits to the buffer zone, given the discretion currently held by local Border Guard commanders.
The Commissioner recommended considering the establishment of an independent mechanism to monitor human rights at the border on a permanent basis.
Recognizing Poland's influential role in shaping European migration policies, the Commissioner encouraged Polish authorities to show leadership by developing a robust migration management system. Such a system should address legitimate security concerns while providing strong legal and policy safeguards to protect the dignity and human rights of refugees, asylum seekers, and migrants, in full compliance with international law, including the 1951 Refugee Convention and the European Convention on Human Rights. The Commissioner also urged the government to address disinformation-driven narratives about migration in Polish society, noting the importance of this issue in the forthcoming migration strategy.
With respect to recently adopted legislation exempting certain state agents deployed in border areas from criminal liability for the use of direct force or firearms in violation of applicable rules, the Commissioner expressed regret over its entry into force. He noted that this legislation is inconsistent with international law and Council of Europe standards, particularly Articles 2 (right to life) and 3 (prohibition of torture and ill-treatment) of the European Convention on Human Rights. The Commissioner recommended that this legislation be repealed.
From 23 to 26 September, Commissioner O’Flaherty visited Finland, focusing on the situation of Roma and migration- and asylum-related issues.
During his visit, the Commissioner toured several human rights-relevant locations, including the Imatra border crossing point, where he engaged with border guards, and the Joutseno reception and detention centre. While acknowledging Finland’s challenges due to the manipulation of migration by a neighbouring state, the Commissioner stressed that border control must not come at the expense of human rights. He reiterated his view that Finland’s recent law allowing temporary restrictions on asylum applications, if implemented, would violate international obligations, including the prohibition of refoulement and collective expulsion, as well as the obligation to provide effective remedies. He urged Finnish authorities to reconsider this law.
The Commissioner praised the efforts of Finnish border guards to prepare for the implementation of these measures, particularly through training on identifying vulnerable individuals. However, he expressed doubts about the feasibility of conducting such complex assessments while fully respecting human rights.
Finally, the Commissioner encouraged Finland to continue seeking regional solutions to border security and migration challenges, emphasising that such measures must align fully with the European Convention on Human Rights, the EU Charter of Fundamental Rights, and the 1951 Refugee Convention.
