Last week at least 5 foreigners fleeing war in Syria, Yemen and Somali who crossed the border illegally ended up in Lithuanian hospital. They were diagnosed with frostbite and traumas from beating, allegedly by Belarus border guards trying to force them out to Lithuania. As reported by the government sources, they were theteafter returned to Belarus without investigating into the circumstances of their mistreatment. This is unacceptable.
International community is not perfect, this must be accepted. Even absolute rights enshrined in the Universal Declaration of Human Rights are not ensured throughout the globalised world. In certain regions the attacks against civilians are widespread and systematic and this is a fact. This sad reality does not give an excuse to democratic societies to tolerate impunity. No doubt authoritarian regimes are using illegal migration as a bargaining chip or even as a source of income. The problems which States may encounter in managing migratory flows or in the reception of asylum-seekers, however, cannot justify recourse to practices which are not compatible with the obligation to respect basic human rights.
International norms on the prohibition of torture and other ill-treatment in particular the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment were initially conceived to regulate not just States’ actions vis-à-vis persons present within their territories but also towards any persons under their jurisdiction. As underlined by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, “denying the applicability of extant legal standards to torture or other ill-treatment committed, sponsored, aided or effectively controlled or influenced by States outside their territories can create incentives for States to avoid absolute legal obligations and amount to serious breaches of international law”.
First, the non-refoulement principle obliges States not to expose individuals to real risks of torture or other ill-treatment by expulsion, extradition or refoulement to another State. Non-refoulement is “an inherent part of the overall absolute and imperative nature of the prohibition of torture and other forms of ill-treatment”. The European Court of Human Rights has consistently held that the absolute nature of the prohibition on torture and other ill-treatment implies a positive obligation not to send individuals to States where they face a real risk of prohibited treatment (Saadi v. Italy). In case P.E. v. France it has been unequivocally recognized by UN Committee Against Torture (CAT).
The procedural aspect of the obligation to protect against torture also comprises the obligation to establish the jurisdiction over the acts of ill-treatment even if they have not happened on the territory of the State in question. The refusal to open the investigation into the circumstances of the mistreatment empowers the government officials to put the asylum seekers’ lives at risk. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also requires States parties to ensure in their legal systems that the victims of torture obtain redress.