One life can make a difference. ReLex managing partner Rytis Satkauskas shares his reflections in teise.pro on the story of Simas Kudirka, pushbacks and right to life.
Perhaps a headline would suffice. However, if, along with the author of these lines, you wish to pay your respects to the deceased, I encourage you to read them to the end.
Simas Kudirka (1930-2023) came to the end of his life’s journey and by the end of it became a symbol of Lithuania’s immeasurable quest for freedom. 23 November 1970 Kudirka jumped from the Soviet fishing boat “Sovetskaya Litva” to the US Coast Guard patrol boat Vigilant and asked for political asylum but was forcibly returned to the USSR ship. The actions of the US and Soviet officials were condemned by the major US newspapers of the time, by lawyers, by the Lithuanian media, and by various protests. Only after his release from Soviet prison was the seaman granted the right to remain in the USA.
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and must treat each other as brothers.” This is not a philosophical definition of humanity, not a religious dogma. It is an imperative provision of the Universal Declaration of Human Rights, the world’s first global human rights document, a fundamental norm of the rules-based international order.
Certain principles of humanity are so fundamental that they cannot be outweighed in the scale of values by any arguments and cannot be conditioned by any circumstances. Foremost among them is the right to life. The right to life is absolute, it is not granted or limited by law, and it exists independently of the international obligations assumed by the government. The theory of natural rights is enshrined in the Lithuanian Constitution.
The right to life implies a duty on the part of every human being to protect the life of another human being, and a duty on the part of the government to take the necessary active measures to protect human life. This positive obligation has two aspects: (a) the duty to establish an appropriate regulatory framework and (b) the duty to take the necessary preventive measures in the event of a threat.
Of course, no one can be held responsible for the actions of another human being, and there are limits to such protection. International instruments and the jurisprudence of international courts define in detail the content of this positive duty to protect human life.
The implementation of the positive duty of the State to protect human life focuses on protecting those who are vulnerable. Certain groups in society are weak and traditionally fall victims of violations, and therefore require special protection. One of the most vulnerable groups in society are refugees – persons seeking asylum and protection from threats in their country of origin.
Vulnerability is not a self-existing condition for all aliens, rather their legal status is a consequence of their vulnerability, not a cause of it. In other words, the vulnerability of aliens is not inherently linked to racial characteristics, nationality or ethnic origin or the level of development of the country of origin. This conclusion can be drawn from the preamble to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Their vulnerability is not due to their distance from their country of origin, but to the difficulties they face in the country where they work or wish to settle, regardless of whether they are forced to return. The vulnerability criterion remains irrespective of whether or not the alien entered the country in question lawfully and irrespective of the provisions relating to lawful presence in the country in question.
When considering the draft legislation submitted to Parliament on border protection and the social integration of foreigners, particular attention must be paid to ensuring that a systematically vulnerable section of society is protected from human rights violations and, in particular, that all necessary measures are taken to protect human life.
The recent jurisprudence of the European Court of Human Rights (ECtHR) is relevant in this respect, as it defines the positive duty of the State to protect the lives of persons seeking international protection on its territory.
In the ECtHR judgment of 2 February 2023 in Howais v Hungary (59435/17), the Court found that Hungary had violated the Convention right to life by failing to provide adequate assistance to asylum seekers crossing the border. The actions of the border officials to turn the asylum seekers away could have endangered their lives, and the State failed to carry out a proper investigation into them, besides there was no investigation into whether the officials who were supposed to provide assistance had exercised that duty properly.
On 1 June 2016, four Syrian nationals and an Iraqi family with their three children, fleeing war in their country of origin, intended to illegally cross the Serbian border with Hungary by boat on the Tisza River. The entire Hungarian-Serbian border is physically fenced, which means that a large part of illegal migration takes place by river. When Hungarian border guards spotted the asylum seekers, the boat carrying them had already been returned to the Serbian coast by the traffickers. The officers used a loudspeaker to instruct the applicants to return to the other shore, where they came from, tear gas, threats, possibly service dogs and stones to beat people out of the reeds. A family of Iraqi nationals who were swimming in the river were assisted, a woman and her children were hospitalised, two Syrians reached the Serbian shore and one drowned. Hungary has opened an investigation into possible criminal misconduct by unknown police officers for misconduct in the performance of their duties under Article 171(2) of the Hungarian Penal Code. On 25 October, the Public Prosecutor’s Office decided to close the pre-trial investigation after failing to identify the officers involved in the incident and stating that the family of Iraqi nationals had already left the country. In the case of the case of the Iraqi immigrants, doubts that the officers used tear gas or other coercion were not dispelled.
The Court took into account reports by international and non-governmental organisations of violence used during border pushbacks. It stated that even in the case of an unintentional attack on the right to life or physical integrity, there may be circumstances in which an effective criminal investigation is necessary in order to comply with the procedural obligation under Article 2 of the Convention. Such circumstances may include, for example, the loss of life in suspicious circumstances or as a result of suspected intentional or reckless failure to perform a duty. The Court reiterated that negligence on the part of a public official or authority goes beyond error or recklessness where the authorities concerned, fully aware of the possible consequences and in spite of the powers conferred on them, failed to take the measures which were necessary and sufficient to avoid the risks inherent in the dangerous activity. Therefore, the failure to charge or prosecute the persons responsible for the risk to life may constitute a breach of Article 2. It is not necessary that other remedies that individuals could pursue on their own initiative be exhausted. The Court noted that there had been no investigation whatsoever into whether the officers had taken adequate measures to prevent the threat to life, nor had there been any inquiry into the general systemic gaps which endangered life.
It is unnecessary to reiterate separately why this ECtHR judgment, the relevant international jurisprudence and the international instruments referred to therein should be carefully considered when adopting the proposed legislative amendments. The proposed amendments are meant to establish by law the possibility to refuse entry to the territory of the Republic of Lithuania of aliens who violate the procedure for crossing the state border during a state-level emergency situation. Without systemic safeguards and enforcement oversight, such a requirement would automatically constitute a violation of a fundamental human right – the right to life.
Lithuanian and foreign media and international organisations have repeatedly drawn attention to the threats to the lives of refugees at the border with Belarus. The 2022 Lithuanian Red Cross report notes that as the weather has cooled down and Lithuania has continued its policy of “reversing” the border, foreigners crossing the border irregularly have found themselves in an extremely dangerous situation. This year, the first recorded death at the border was reported.
There is only one life. Simas survived.