Missing migrants, refugees and asylum seekers – A call to clarify their fate
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 1 October 2024 (27th sitting) (see Doc. 16037, report of the Committee on Migration, Refugees and
Displaced Persons, rapporteur: Mr Julian Pahlke). Text adopted by the Assembly on
1 October 2024 (27th sitting).See also Recommendation 2284 (2024).
1. The 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 Objective No. 8 endorsed
by the States Parties to the
Global
Compact for Safe, Orderly and Regular Migration.
2. The 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 for international
human rights and international humanitarian law.
3. The Assembly fully endorses the recommendations outlined in
General Comment No. 1 (2023) on Enforced Disappearance in the Context
of Migration (
CED/C/GC/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 entitled “Protection of the dead” (
A/HRC/56/56)
by the United Nations Special Rapporteur on extrajudicial, summary
or arbitrary executions, including the need to develop universally applicable
guiding principles, based on human rights, for a comprehensive protection.
4. The 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.
5. The 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.
6. The 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.
7. The Assembly considers that any initiatives conducted by State
authorities to report, search for 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.
8. On 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.
9. Member 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 which must stop
immediately.
10. Reiterating 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
standards of
the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT). 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
relating to the Status of Refugees of the United Nations. 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.
11. In line with
Recommendation
CM/Rec(2019)4 of the Committee of Ministers to member
States on supporting young refugees in transition to adulthood and
Recommendation
CM/Rec(2019)11 of the Committee of Ministers to member
States 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.
12. As 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 sought.
13. In the event of a disaster involving a large group of people,
disaster victim identification teams should be deployed to ease
a standardised cross-border mechanism 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.
14. The 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.
15. As 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.
16. The 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 secondary means of identification in line with
international standards for the documentation and preservation of
data. Data should be kept in dedicated storage accessible to law-enforcement
authorities.
17. In 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.
18. Member 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 rules, and enable the transfer of biometric
data in the context of search and identification in full compliance
with the Council of Europe’s 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 a form of identification
within the short period of time available for such procedures to
be carried out.
19. The Assembly acknowledges the role of INTERPOL as 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.
20. As 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 those used for other purposes.
22. The 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 that share 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 Office of
the United Nations High Commissioner for Refugees (UNHCR), the United
Nations Special Rapporteur on the human rights of migrants, the
United Nations Special Rapporteur on extrajudicial, summary or arbitrary
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.
23. The Assembly would welcome the Council of Europe being given
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.
24. The Assembly calls for regional co-operation between prosecutors
across Europe on how best to identify and share data on missing
migrants and unidentified bodies.
25. As part of the above actions, the Assembly recommends that
member States:
25.1 adopt a common
definition, guided by the ICRC’s standard definition whereby missing
persons mean “individuals of whom their families have no news and/or
who, on the basis of reliable information, have been reported missing
as a consequence of armed conflict (international or non-international)
or other violence or of any other situation – including disasters
or migration – that might require action by a neutral and independent
body”;
25.2 facilitate 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;
25.3 work together with the International 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;
25.4 appoint 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 co-ordinated by the
Special Representative of the Secretary General of the Council of
Europe on Migration and Refugees;
25.5 expediate 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;
25.6 review 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;
25.7 ensure 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;
25.8 ratify and implement the International Convention for
the Protection of All Persons from Enforced Disappearance.
