Third Party Intervention in S.B. v. Croatia, Application No. 18810/19, December 2020

Written Submission on behalf of Advice on Individual Rights in Europe (the Aire Centre), Dutch Council for Refugees (Dcr), the European Council on Refugees and Exiles (ECRE), the Hungarian Helsinki Committee (HHC) and the International Commission of Jurists (ICJ).

1. The interveners submit that in light of well-established principles of international law and this Court’s settled case law, an expulsion that exposes an applicant to the risk of refoulement and deprives them of protections under international and EU law is prohibited. This principle also applies when individuals are subject to law enforcement activities that can prevent individuals from making, registering or lodging a claim for asylum.
2. To comply with non-refoulement obligations under Articles 3 and 13 ECHR, international law requires, inter alia, a rigorous scrutiny of the applicant’s claim of potentially prohibited treatment, access to an effective remedy following a negative decision, and access to the rights protected under Articles 2-34 of the Refugee Convention, where the applicant may be entitled to those rights. The authorities of a transferring Contracting Party must conduct an effective investigation into the real-time conditions in the receiving country in light of laws, systems and practices. This must entail (i) analysis and assessment of up-to-date reports of international and civil society organisations operating in that country and (ii) a detailed individualised assessment of whether the country will be safe for those whose removal is contemplated and of any additional vulnerability that applies to them.
3. The decisive criterion in order for an expulsion to be characterised as “collective” - in violation of Article 4 of Protocol No. 4 ECHR- is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group”. In particular, where the applicants have not arrived in large numbers and using force to the extent that it would create a clearly disruptive situation, which is difficult to control and that endangers public safety, the lack of an individual expulsion decision cannot be attributed to their own conduct.
4. Specific vulnerabilities of asylum seekers should be taken into account at all stages of expulsion proceedings in order to guarantee enhanced safeguards afforded to them under international and EU law. When children are involved, the determination of their best interests should be a primary consideration and has to be carefully reflected in all decisions concerning them. Furthermore, States must ensure that the country to which expulsion is sought offers sufficient guarantees to ensure adequate protection against the risk of ill-treatment.
5. In light of the obligations of EU Member States under EU law and Article 53 ECHR, the interveners submit that the responsibility of EU States under the EU asylum acquis is engaged in relation to any individuals who may wish to seek international protection. Collective expulsion measures thus constitute an aggravated violation of Article 4 of Protocol 4 because of the additional serious breaches by Contracting Parties of their international and EU law obligations.
6. In operations aimed at imposing restrictions on freedom of movement or deprivation of liberty to carry out an expulsion, the use of force should only be employed exceptionally and subject to strict necessity and proportionality requirements. The lack of resistance to law enforcement officials, per se renders force unlawful.