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Missing migrants, refugees and asylum seekers – A call to clarify their fate

Doc. 16037: compendium of written amendments | Doc. 16037 | 01/10/2024 | Final version

Contents

A Draft Resolution
B Draft Recommendation

Compendium index

Amendment 3 Amendment 4 Amendment 5 Amendment 6 Amendment 2 Amendment 7 Amendment 1

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The phenomenon of migrants, refugees and asylum seekers going missing is a tragedy largely underestimated and neglected as a human rights issue requiring policy responses across Europe and the world in line with the Objective No. 8 endorsed by the State parties to the Global Compact for Safe, Orderly and Regular Migration.
2The Parliamentary Assembly is convinced that concerted initiatives at the public policy level are needed to underpin and multiply the significant efforts already in place through a structured and adequately-resourced vision and plan, rooted in the respect of international human rights and international humanitarian law.
3The Assembly fully endorses the recommendations outlined in the General Comment No. 1 on Enforced Disappearances in the context of Migration (CED/C/CG/1) by the United Nations Committee on Enforced Disappearances, and in the report entitled “Unlawful death of refugees and migrants” (A/72/335) by the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions. It also endorses the recommendations in the report by the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions “Protection of the dead” (A/HRC/56/56) including the need to develop universally applicable guiding principles, based on human rights, for a comprehensive protection.
4The Assembly considers that human dignity should be ensured to all persons in life and in death, and that the obligation in law to treat the deceased with dignity should extend to situations where international humanitarian law is not applicable.

01 October 2024

Tabled by Mr Norbert KLEINWÄCHTER, Mr Martin GRAF, Mr Harald WEYEL, Mr Jurģis KLOTIŅŠ, Ms Elisabetta GARDINI, Mr Bob De BRABANDERE, Mr Paweł JABŁOŃSKI

Votes: 27 in favor 84 against 5 abstentions

In the draft resolution, delete paragraph 4.

Explanatory note

The Convention on Human Rights is international law. We cannot extend our validity past the validity of international humanitarian law in general, so the entire paragraph doesn’t make sense.

5The Assembly recalls that, pursuant to Article 2 of the European Convention on Human Rights (ETS No. 5), member States have a duty to prevent violations of the right to life and to investigate any cases of unnatural death or unlawful killings; it is on this basis that they must define how they tackle the issue of missing migrants, refugees and asylum seekers.

01 October 2024

Tabled by Mr Norbert KLEINWÄCHTER, Mr Martin GRAF, Mr Harald WEYEL, Mr Jurģis KLOTIŅŠ, Ms Elisabetta GARDINI, Mr Bob De BRABANDERE, Mr Paweł JABŁOŃSKI

Votes: 23 in favor 87 against 5 abstentions

In the draft resolution, delete paragraph 5.

Explanatory note

This is false. It is incorrect that Article 2 requires member states to investigate any cases of unnatural death or unlawful killings. Therefore, this report misrepresents our Convention and should be taken out.

6The Assembly expresses its sympathy and solidarity with the families of the missing and acknowledges their legitimate quest for information. It recognises the right for adults to choose to not divulge their whereabouts to their families, but also the importance for families to know whether their relatives are dead or alive.
7The Assembly considers that any initiatives conducted by State authorities to report, search or identify a person should never involve the administrative checks or the criminalisation of that person or of any person providing support to them due to their irregular status.
8On prevention, effective access to safe and legal migration routes, including for family reunion or reunification, must be a priority as well as the provision of humanitarian assistance along migration routes irrespective of the administrative status of the person on the move in need of support.

01 October 2024

Tabled by Mr Norbert KLEINWÄCHTER, Mr Martin GRAF, Mr Harald WEYEL, Mr Jurģis KLOTIŅŠ, Ms Elisabetta GARDINI, Mr Bob De BRABANDERE, Mr Paweł JABŁOŃSKI

Votes: 27 in favor 87 against 3 abstentions

In the draft resolution, delete paragraph 8.

Explanatory note

The solution lies in ending illegal migration routes, not creating new ones.

9Member States must conduct search and rescue operations at sea and on land according to international law, in full compliance with the European Convention on Human Rights and the consistent case law of the European Court of Human Rights. Pushbacks are illegal practices which may also lead to disappearance and must stop immediately.

01 October 2024

Tabled by Mr Norbert KLEINWÄCHTER, Mr Martin GRAF, Mr Harald WEYEL, Ms Elisabetta GARDINI, Mr Jurģis KLOTIŅŠ, Mr Bob De BRABANDERE, Mr Paweł JABŁOŃSKI

If adopted, amendment 2 falls.

Votes: 26 in favor 86 against 5 abstentions

In the draft resolution, delete paragraph 9.

Explanatory note

The opposite is true. According to the Geneva Convention, refugees must flee to the next safe area in order to be recognized. It is only then that their illegal entry into foreign territory may not be punished. There is no requirement for States to perform search and rescue operations.

01 October 2024

Tabled by Mr Emanuelis ZINGERIS, Ms Larysa BILOZIR, Mr Oleksii GONCHARENKO, Mr Arminas LYDEKA, Mr Jurģis KLOTIŅŠ

Falls if amendment 6 is adopted.

Votes: 29 in favor 79 against 6 abstentions

In the draft resolution, paragraph 9, delete the last sentence.

.

Explanatory note

A proposal to remove the last sentence of pushbacks.

10Reiterating the importance of fully abiding by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS No. 126), the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) and the Council of Europe Convention on preventing and combating violence against women and domestic violence (CETS No. 210) the Assembly underlines the need to protect vulnerable people on the move who are or may be at risk of being victims of trafficking, victims of torture, victims of enforced disappearance or victims of gender-based and domestic violence, and thus to reduce their risk of going missing. Any person deprived of their liberty should be registered and should be able to communicate with the outside world as per the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) standards. Immigration detention should only be a measure of last resort and for the shortest period possible, pending the enactment of a return procedure where deprivation of liberty is proven to be necessary as confirmed through the appropriate judicial oversight. Refugees should not be criminalised for crossing a border unauthorised, pursuant to Article 31 of the Convention related to the Status of Refugees. The Assembly invites the relevant Council of Europe bodies such as the CPT, the Group of Experts on Action against Trafficking in Human Beings (GRETA) and the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) to pay particular attention to the impact which border management policies may have on their fields of expertise as regards missing migrants.

01 October 2024

Tabled by Mr Norbert KLEINWÄCHTER, Mr Jurģis KLOTIŅŠ, Mr Martin GRAF, Mr Harald WEYEL, Ms Elisabetta GARDINI, Mr Bob De BRABANDERE, Mr Paweł JABŁOŃSKI

Votes: 27 in favor 85 against 4 abstentions

In the draft resolution, paragraph 10, delete the third and fourth sentences (from "Immigration detention" to "Status of Refugees.")

Explanatory note

The opposite is true. According to the Geneva Convention, refugees must flee to the next safe area in order to be recognized. It is only then that their illegal entry into foreign territory may not be punished. Many refugees arrive at a border from a safe territory, so they may be imprisoned.

11In line with Recommendation CM/Rec(2019)4 of the Committee of Ministers to member States on supporting young refugees in transition to adulthood and its Recommendation CM/Rec(2019)11 on effective guardianship for unaccompanied and separated children in the context of migration, the Assembly highlights the need for the systematic registration of unaccompanied children, for diligent search efforts when they go missing, and for a safe and child-sensitive referral to appropriate accommodation, educational facilities and, when applicable, to family reunification.
12As regards reporting and search mechanisms, the Assembly firmly stresses the importance of ensuring that reporting and search processes are free from any considerations related to the administrative status or the criminal record of the person searched for.
13In the event of a disaster involving a large group of persons, disaster victim identification teams should be deployed to ease a standardised cross-border process to identify victims. The Assembly recommends that member States identify possible areas where resources can be mutualised and shared on the most critical aspects of such cross-border co-operation. The International Criminal Police Organization (INTERPOL) may be of support in this endeavour.

01 October 2024

Tabled by Mr Emanuelis ZINGERIS, Ms Larysa BILOZIR, Mr Oleksii GONCHARENKO, Ms Olena KHOMENKO, Mr Arminas LYDEKA

In the draft resolution, paragraph 13, first sentence, after the words "should be deployed", insert the following words:

", where possible,"

Explanatory note

Included a phrase: "where possible" for a more precise approach.

14The Assembly warns against the risks possibly induced by the centralisation of personal data and recalls the importance of informed consent being obtained by data subjects in the management of their personal information, and of identifying an adequate legal basis for such information management. Any such converging of information should only be performed with the guarantee of external oversight by independent data protection entities in the member States participating in such pooling of data.
15As regards the identification and treatment of the bodies of the deceased, the Assembly underlines a critical need for additional resources to be allocated to forensic and coroners’ services, including the need for sufficient space in the morgues pending autopsy, identification, burial or repatriation.
16The Assembly recommends that prosecutors systematically authorise the investigation and autopsy of unidentified bodies to collect as much information as possible within the short period of time available including non-primary identifiers in line with international standards for the documentation and preservation of data. Data should be kept in dedicated storage accessible to law enforcement authorities.
17In the case of potentially unlawful deaths, the Assembly encourages member States to make use of the available international standards for their reliable investigation, in particular the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) – The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
18Member States should align their legislation with the legal standards allowing for the proper documentation of the deceased, as provided for in Recommendation No. R(99)3 of the Committee of Ministers on the harmonisation of medico-legal autopsy rule, and enable the transfer of biometric data in the context of search and identification in full compliance with the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) as amended by Protocol CETS No. 223 (“Convention 108+”). It calls on member States to facilitate the exchange of forensic knowledge and resources to allow for identification within the short period of feasibility.
19The Assembly acknowledges the role of the International Criminal Police Organization (INTERPOL) has a potential facilitator towards such harmonisation. It stresses the critical importance of ensuring an external oversight by data protection bodies in each country where such harmonisation and processing of personal data is envisaged.
20As regards the possibility to centralise post-mortem and ante-mortem data, the highest standards of data protection should be ensured when making the effort to co-ordinate the fragmented datasets available, in line with Convention 108+ and the Minnesota Protocol. A clear distinction should be made between data intended for humanitarian searches and that used for other purposes.
21The Assembly encourages those countries who have not yet done so to ratify Convention 108+ and to use this instrument in the context of missing and deceased migrants, in line with paragraph 30 of its explanatory report. It draws attention to instruments such as the standardised Model Contractual Clauses for the Transfer of Personal Data from Controller to Controller and the Model Contractual Clauses for the Transfer of Personal Data from Controller to Processor to transfer personal data to countries non-party to Convention 108+ and whose data protection legislation is inexistent or does not provide an appropriate level of protection.
22The Assembly calls for increased exchanges between the national and regional authorities with responsibilities in the field of data protection, human rights and migration issues, in order to best co-ordinate between themselves and with international and United Nations organisations sharing recognised expertise on compilation, exchange and/or comparison of relevant information. Such organisations should include the International Commission on Missing Persons (ICMP), the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (IFRC), INTERPOL, the International Organization for Migration (IOM), the United Nations Refugee Agency (UNHCR), the United Nations Special Rapporteur on the human rights of migrants, the United Nations Special Rapporteur on extrajudicial, arbitrary and summary executions, experts from the United Nations Committee on Enforced Disappearances and the United Nations Working Group on Enforced or Involuntary Disappearances. Wherever possible, discussions on these matters must provide for the inclusion of the voices of migrants, the families of those lost or deceased, and civil society.
23The Assembly would welcome the Council of Europe being provided a meaningful role to ensure data protection conditions allowing for standardised processes and platforms to enable the matching of data coming from vetted data collectors and holders and to ensure interoperability. Such efforts may also lead to the establishment of a database.
24The Assembly calls for regional co-operation between prosecutors across Europe on how best to identify and share data on missing migrants and unidentified bodies.
25As a part of the above actions, the Assembly recommends that member States:
25.1adopt a common definition, guided by the ICRC’s standard definition whereby “a missing person is an individual about whom their family has no news and/or who, on the basis of reliable information, has been reported missing as a result of an international or non-international armed conflict, other situations of violence, disasters or any other situation that may require the intervention of a competent State authority including in the context of migration”;
25.2facilitate the issuance of relevant documents for families of the missing person (for example a certificate of absence), enabling them to gain access to various rights or to reunion or reunification procedures;
25.3work together with the Red Cross and Red Crescent Movement and contribute to the co-ordination of the disaster victim identification procedures and to the sharing of information on INTERPOL databases designed to search for and identify missing persons;
25.4appoint national focal points for missing migrants to serve as the designated point of contact for inquiries by other national authorities or their representatives in transnational co-ordination efforts; member States which have already appointed national focal points for missing migrants may share their experience in the framework of the Network of Focal Points on Migration coordinated by the Special Representative of the Secretary General of the Council of Europe on Migration and Refugees.
25.5expediate short-term visa requests lodged by families of missing migrants, refugees and asylum seekers, in order to facilitate identification processes and provide support to families with regard to the procedures involved, including repatriations;
25.6review their legislation with a view to improving and harmonising national processes to record and manage cases of missing migrants and unidentified human remains, including as regards gaps in the medico-legal framework and the issue of European and international data sharing in line with international norms and standards on data protection;
25.7ensure that graves are individualised, clearly identifiable and permanently marked either nominally or numerically, with unique codes, and recorded, and that every effort is made to respect the religious and spiritual beliefs of the persons deceased when such are known, in line with the right to freedom of religion and belief as protected in Article 9 of the European Convention on Human Rights;
25.8ratify and implement the International Convention for the Protection of All Persons from Enforced Disappearance.

BDraft Recommendation

1The Parliamentary Assembly refers to its Resolution... (2024) “Missing migrants, refugees and asylum seekers: a call to clarify their fate” and invites the Committee of Minister to express the Council of Europe’s readiness, in line with the Organisation’s values and standards, to join forces with its international partners and to support member States in further developing and adding to the efforts which have been initiated in recent years on the issue of missing migrants, refugees and asylum seekers.
2In this respect, the Assembly encourages the Committee of Ministers to strengthen its paths of co-operation with the most relevant organisations on the international stage, in particular with the International Committee of the Red Cross, INTERPOL, the United Nations High Commissioner for Refugees, the United Nations International Children’s Emergency Fund, and the International Organization for Migration.
3It considers that progress on joined-up and coherent policy making on this issue also requires specific discussions between the competent authorities of member States. It invites the Committee of Ministers to acknowledge the pressing need for common standards across member States in order to improve search processes at national and transnational levels, and to improve the management and the identification of deceased migrants, in particular by:
3.1updating Recommendation No. R(99)3 on the harmonisation of medico-legal autopsy rules, in light of the emerging challenges and new practices, especially with respect to post-mortem documentation for identification, the standardisation of forensic investigation and autopsy rules and the particular context of cross-border mobility;
3.2adopting guidelines on data collection, transmission and centralisation of the post-mortem data for forensic identification of missing persons in Europe; providing a standard definition of missing persons; and protecting the rights of members of the families as data subjects protected under the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) as amended by Protocol CETS No. 223 (“Convention 108+”). These guidelines should also cover the specific legal and practical issues at stake as regards the situation of missing migrants, refugees, asylum seekers, and of families in search of missing persons, including the cross-border context, and could be made open for endorsement by non-member States which are party to the Convention 108+;
3.3facilitating discussions between prosecutors across member States, particularly as regards the possibility of reviewing the standard practices already in place in a series of member States on the identification and management of cases of deceased missing migrants, refugees and asylum seekers, and of establishing guidelines for a standard protocol to be used across all member States.