How to prove unacknowledged apprehension of migrants before the ECtHR? Drawing evidentiary lessons from the Strasbourg case law on enforced disappearances

The apprehension of non-citizens who cross EU borders irregularly has become a common state practice, but one which often remains unacknowledged by the authorities. Some domestic procedures do not even require the registration of these apprehensions. For example, the 2021 crisis on the Polish-Belarusian border saw Poland adopting a legal framework which specifically allows for the ‘push-back’ of irregular migrants - including when apprehended outside the border region. In most cases, the said framework does not require, however, that the persons returned to the border be provided with a document reporting that they have been subjected to the said procedure. The paper critically engages with this practice. The absence of official acknowledgement of the apprehension makes the violations of human rights such as ill-treatment, collective expulsion or secret detention, not only more likely but also, when they occur, very difficult to prove, including before the ECtHR. This paper first summarises what is currently known about these practices. It then asks how applications could be substantiated before the ECtHR. In particular, lessons are drawn from the existing Strasbourg case law on enforced disappearances, which could be useful for claims of unacknowledged migrant apprehension. 

This presentation is part of the Fundamental Rights Research Colloquium's cluster on „Critical Engagements with Fundamental Rights”. 

Grażyna Baranowska is currently a Marie Skłodowska-Curie Postdoctoral Fellow at the Centre for Fundamental Rights at the Hertie School. Her project under this scheme, called MIRO, seeks to use the identification and interpretation of international legal obligations regarding missing migrants in order to critique and shape the practices of the EU, its Member States, and pertinent international organisations. Baranowska is Assistant Professor in the Institute of Law Studies of the Polish Academy of Sciences. Previously, she was a Postdoctoral Researcher in an EU-funded project on Memory Laws in European and Comparative Perspective. She also worked as a Policy Advisor on enforced disappearances in the German Institute for Human Rights. Her book Right of Families of Disappeared Persons was published by Intersentia in 2021.

Prior registration is required. Registered attendees will receive the dial-in details as well as a draft paper, on which the presentation is based, via e-mail prior to the event.