Border Violence Monitoring Network

Submission to the European Commission: Feedback on procedural rules relating to the enforcement of the General Data Protection Regulation 1. Background information Border Violence Monitoring Network (BVMN; https://www.borderviolence.eu/ ) is an independent network of NGOs and collectives based on the so-called Balkan Route, Greece, and Turkey, which monitors Human Rights violations at the borders of the European Union and advocates to end the violence exerted against people on the move.1 BVMN came into existence in 2016 with the closure of the Balkan Route and the signing of the EU-Turkey Agreement, when several grassroots organisations started documenting and reporting on violent pushbacks of people on the move along the Balkans and Greece.

…started documenting and reporting on violent pushbacks of people on the move along the Balkans and Greece. The Network has developed a common methodology for the recording of testimonials and supporting evidence which, after going through a process of fact-checking, is published on our website (see our database). By the end of 2022, BVMN had collected 1,680 pushback testimonies, affecting an estimated 28,893 people,2 from which BVMN has observed a trend of ongoing and systematic violations of the personal data rights of people on the move, constituting serious violations of the fundamental right enshrined in Article 8 (1) of the Charter of Fundamental Rights of the European Union (CFR) and Article 16 (1) of the Treaty on the Functioning of the European Union (TFEU), as 2 BVMN. 2022. Testimonies. Available at: https://borderviolence.eu/testimonies/.

…of the European Union (TFEU), as 2 BVMN. 2022. Testimonies. Available at: https://borderviolence.eu/testimonies/. 1 The term “people on the move”, includes all people who, for various reasons, leave their country of origin and flee from circumstances there. It seeks to broaden the definition of refugees taking into account the dramatic impacts of climate change, economic and social inequality, political authoritarianism, terrorism and organised crime. Furthermore, the term specifically recognizes people in the process of fleeing who are in transit or stranded. Looking specifically at the situation in the Western Balkans, a majority of people having fled their country of origin, seek to continue their journey to seek safety in the European Union. Ref.

…people having fled their country of origin, seek to continue their journey to seek safety in the European Union. Ref. Ares(2023)2160598 - 24/03/2023 well as Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The European Union has implemented a policy of security and fortification of borders when it comes to dealing with alleged migration management. The rampant use of systematic pushbacks across the Balkans, Greece and Turkey has been codified with wide ranges of border management practices, including the surveillance of land, air and maritime borders through the employment of advanced technologies such as maritime domain awareness, surveillance towers, drones and small autonomous unmanned aerial systems.

…such as maritime domain awareness, surveillance towers, drones and small autonomous unmanned aerial systems. While the streamlining of enforcement of the EUDPR and the relevant technology could be used to save lives and prevent pushbacks from occurring, it is instead utilised to impede people on the move from exercising their rights while simultaneously exposing them to grave violations of human dignity, autonomy, respect and protection. BVMN has collected evidence that raises doubts as to the overall accessibility of people’s rights to data protection enshrined under the GDPR. Pushbacks always occur outside of a legal framework and generally impede people’s right to access international protection, justice and legal support, and any form of humanitarian services entitled to them under EU, international and national law.

…and legal support, and any form of humanitarian services entitled to them under EU, international and national law. Thus in a context where the rule of law is not respected, it is undoubtedly evident that the GDPR cannot provide protection against the violation and abuse of people on the move’s personal data. This obstruction is then dramatically underscored by the numerous GDPR violations recorded by BVMN in testimonies collected over the course of 7 years, which will be portrayed below. Furthermore, BVMN attests that the encouraged cooperation between National Data Protection Authorities as detailed in the proposal by the Commission which is intended to increase the protection of rights guaranteed by the EUDPR, presents a quandary.

…by the Commission which is intended to increase the protection of rights guaranteed by the EUDPR, presents a quandary. If the Regulation is used by Data Protection Authorities (DPAs) to further support the criminalisation of migration and the facilitation thereof, as is the current trend within the EU, the Commission would consciously be fuelling infringements on rights guaranteed by the EUDPR. The data collected by BVMN represents only a fraction of the true number of people whose data protection rights have been and are being violated along European internal and external borders. The limited geographical scope of our field teams, the lack of awareness about the Network among people on the move, and the reasonable fear and apprehension about reporting cases of internal violence and pushbacks, contribute to a limitation of the data collected.

…about reporting cases of internal violence and pushbacks, contribute to a limitation of the data collected. Yet, BVMN evidence clearly indicates that from the 100s of testimonies gathered since 2017, a significant number indicate potential breaches of rights guaranteed by the EUDPR which will be highlighted in the following. 1. Points of concern arising from EUDPR provisions The cooperation mechanism envisioned under this initiative finds its basis in the EU Data Protection Regulation. In particular, Article 61 specifies that supervisory authorities shall assist each other when it comes to “information requests and supervisory measures, such as requests to carry out prior authorisations and consultations, inspections and investigations”.

…measures, such as requests to carry out prior authorisations and consultations, inspections and investigations”. It is, therefore, important to point out which provisions in the EUDPR could influence the way this cooperation mechanism will be implemented, and the repercussions this could have on people on the move. The text of the regulation lists several protections and guarantees for data subjects. However, these are weakened by exceptions which allow controllers (States) to circumvent their obligations towards data subjects. Of particular interest to BVMN are those who allow risky processing of data in the name of “public interest and security”, such as data processing which leads to profiling.

…of data in the name of “public interest and security”, such as data processing which leads to profiling. In the following sections, this mechanism’s potential to enhance protection of data rights will be analysed and contrasted with its potential to exacerbate the adverse human rights impacts on people on the move. 1.1 Protection through supervision The DPAs are designed to ensure correct implementation of the EUDPR and investigate and correct any data protection breaches, as set out in Articles 57 and 58. As detailed in previous sections and reports,3 BVMN has documented episodes and identified patterns of practices carried out by Frontex and national border control officers which breach data protection rights. In their supervisory capacity, DPAs must act as protective agents towards people on the move at the European Union’s borders.

…supervisory capacity, DPAs must act as protective agents towards people on the move at the European Union’s borders. They have the duty and power to carry out investigations and issue corrective measures. As such, enhanced cooperation among DPAs should lead to tighter controls on how the data of people on the move is collected and processed. Not only within EU territory, but also at its borders. Article 3 of the EUDPR establishes that the regulation applies to the processing of personal data by controllers in the EU “regardless of whether the processing takes place in the Union or not”. This is noteworthy as it is renowned that EU border states closely collaborate with neighbouring non-EU countries to stymie migration and prevent people from reaching the European Union’s 3 BVMN. 2021. The role of technology in illegal push-backs from Croatia to Bosnia-Herzegovina and Serbia.

Union’s 3 BVMN. 2021. The role of technology in illegal push-backs from Croatia to Bosnia-Herzegovina and Serbia. Available at: https://borderviolence.eu/app/uploads/Border-Violence-Monitoring-Network.pdf ; BVMN. 2022. Submission to EU Commission Feedback Mechanism on Data Protection. Available at: https://borderviolence.eu/app/uploads/FEBRUARY-2022-Submission-to-EU-Commission-Feedback-Mechanism-on -Data-Protection.pdf. borders.4 This collaboration extends to data processing as section 1.3 of this document elaborates. As a consequence, cooperation among DPAs should involve supervising the lawfulness and legitimacy of data processing by the authorities of EU partners in migration control.

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