Lithuania legalizes pushbacks

A new law comes into effect in Lithuania on May 3 that legalizes so-called pushbacks. As Jurate Juskaite, the director of the Lithuanian Centre for Human Rights explains: "Border guards will be allowed to legally push back irregular migrants, and no independent and individual evaluation [as to whether] these people need asylum or not will be done."

It enshrines in law the Lithuanian authorities' practice of sending migrants back over the border immediately after they have crossed. Lithuania has already been doing this since the summer of 2021, when there was a sudden increase in the number of migrants crossing into the Baltic country from the authoritarian state of Belarus. At the time, the Lithuanian government saw itself as under attack from the Belarusian ruler, Alexander Lukashenko.

The EU also described the situation as a "hybrid attack," and suspected an attempt to destabilize the bloc. Many more migrants were also crossing from Belarus to Poland and Latvia. The accusation was that people from third countries were being lured to Belarus in order to get across the external border into the EU — and that the Belarusian state was helping them do it.

The Lithuanian public broadcaster LRT reports that the new law is intended for application in exceptional circumstances. According to the country's Interior Ministry, it will also make a clear distinction between natural and instrumentalized migration.

Deployment of civilian border guards

Lithuania has an almost 680-kilometer (423-mile) border with Belarus. It has responded to the situation by installing a border fence along approximately 550 kilometers of that length. Four meters high and equipped with barbed wire, the fence is intended to prevent migrants from entering the European Union illegally. In future, under the new law, the border will also be patrolled by so-called civilian border guards.

Nongovernmental organizations are highly critical of this. The human rights activist Jurate Juskaite says the entry threshold for this job is very low. There is concern about the fact that, under the new law, these border guards are allowed to use force.

Julia Zelvenska is the head of legal support at the European Refugee Council, an umbrella organization of 110 nongovernmental organizations. She warns that this will normalize the use of force, and will lead to migrants being criminalized.

Lithuania is not the only EU country with an arrangement like this. Zelvenska says Hungary also employs civilian "border hunters" — and Hungarian law is regarded as the model for Lithuania's.

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.

This article has been translated from German.