Questioning the interviewers: Frontex’s covert interrogations at the Spanish southern border

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Tony, a police officer deployed multiple times in Frontex operations in Spain and Greece, slips on the word “interrogate”. He immediately corrects himself: “We are not allowed to say interrogate”. We both know that the term interrogation fits perfectly well.

Drawing on interviews, informal conversations and doctrinal analysis, this article focuses on Frontex so-called debriefing. Debriefings are interviews conducted by police officers with migrants upon arrival. Initially anonymous and only aimed at obtaining intelligence, since 2016 they are also a source for collecting personal data. Debriefers work closely with the host authorities and with Europol, by routinely passing on data of individuals suspected of ‘cross-border crimes’.[1]  This article questions the practice of interviewing and the impact of such extractive policing on criminal proceedings and migrants’ rights. Our research is based on Frontex Joint Operation Indalo – under which framework the agency deploys so-called debriefing experts to the ports of Almeria, Motril, Malaga, Algeciras, Cartagena and Alicante. 

To understand EUrope’s bordering regime requires challenging the way institutions present what they do. It requires us to push for a language[2] that reflects the pattern of routine abuses and rights violations characteristic of contemporary border operations.[3]Call them by their true names”, as Rebecca Solnit urges us to do. In the face of violence and injustice, Solnit reminds us that “calling things by their true names cuts through the lies that excuse, buffer, muddle, disguise, avoid, or encourage inaction, indifference, obliviousness”. In a spirit of cutting through the institutional opacity, the authors began to collaborate.  

Debriefing or covert interrogations?

Debriefing has been central to Frontex’s work since the agency’s inception in 2005. Information obtained directly from migrants through these interviews has been feeding the agency’s ‘risk analysis’ ever since. These Frontex risk analysis ‘products’ are devised to inform policymakers providing “strategic foresight”.[4] Later, debriefing also became a means of identifying suspects. Officers explain how fighting crime has grown into a distinctive guiding force during their work as debriefers. With an extended role for Frontex in the processing of personal data, debriefings now collect information later used by police in criminal cases. Modus operandi, the location of safe houses, time of travel, how much people pay, the nationality of smugglers, telephone numbers, or any other detail regarding cross border crime are extracted by officers from people arriving on Spanish shores.

When Tony slipped with the word “interrogate”, he retracted himself immediately. Officers react strongly to any framing of debriefing as something other than a non-threatening voluntary conversation. Frontex fundamental rights monitors adopt a similar line when assuring one of us that debriefing is not intended to cause any harm. Interviews are presented by the agency as anonymous, voluntary, and harmless. Yet, they take place in the context of irregular entry, lack of privacy, and in the presence of police officers, where individuals are detained and at risk of deportation. Most importantly, they are conducted without the presence of a lawyer and, at times, of an interpreter. It is, therefore, questionable whether informed consent is obtained. Behind the innocent narratives of “voluntary conversations”, the issue of crime constantly resurfaces in the way officers talk about their work: 

“If I have a suspicion, and I had that before, that this guy is maybe a criminal or maybe linked to terrorism, I gave of course the information to the local police because I am still a police officer and I still have a duty to report criminal activity.”

While several officers showed interest in the person’s history and experiences, what we observed is that interviews are suffused with a distinct veneer of suspicion. The prominent role of suspicion, a central feature of police culture,[5] is evident in officers’ constant search for ‘truthful’ accounts and people with ‘suspicious behaviour’. Officers are expected to conduct debriefing interviews as soon as possible to avoid, an officer explained, that “new arrivals mix with other people and share information about what to say, what not to say, how to behave, who is a good police officer, who is not a good police officer”.

Upon disembarkation, every person is detained for a maximum of 72 hours in the so-called Centros de Atención Temporal de Extranjeros (CATEs).[6] Even though people are facing criminal-like measures, the detention regime falls short of safeguards afforded by criminal law.[7] What we have observed, in the context of Frontex’s debriefing activities, is that the detainee’s condition is routinely ignored by Frontex officers and, thereby, the rights that should be afforded to them are likewise ignored. “They are not actually detained, so I cannot allow you to access the interviews”, a Frontex team leader replied to one of us when asked to participate in an interview as legal representative.[8]

Furthermore, what becomes apparent from officers’ accounts is that debriefing is not simply about collecting individual or witness testimony, where levels of suspicion are characteristically low. Interviews are not concerned with migrants’ vulnerability either. Rather, these interactions are vested with a high degree of doubt and distrust. Suspicion not only structures interactions during the debriefing interview itself: it also extends to the filtering process at play whereby specific people are selected to be interviewed. We argue that the entire process from interception to ‘identification and debriefing’ is orchestrated in a way to build a case: who was involved in the organization of this particular crossing? Who was driving the boat?

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Frontex’s role in building cases for prosecution 

During an interview, detainees become ‘evidence’ to incriminate others traveling on the same boat, or even themselves. When a suspect is identified, debriefers refer the person to the “second line or specialized police”[9] - in the Spanish case this is the UCRIF (Unidad Central de Redes de Inmigración Ilegal y Falsedades Documentales). Instructions from host authorities are clear about what to do in these cases, a Frontex officer explains:

They [host authority] told us. In case we find out who was the driver of the boat so they can try to investigate more and maybe prosecute him to be facilitator but I usually referred these people to the team leader and they usually dealt with it in a manner that…I’m not really sure what they do. It’s not really disclosed to us what they do.”

Frontex officers’ role is limited to spot and verbally report, without entering into whether and how the case is taken further by the Spanish police as a matter of criminal investigation - a division of labour that resembles logics reported by one of us in previous work.[10] In other words, Frontex elicits information from a suspect, victim or witness that is later used by the Spanish Police, who are part of the operation. The emphasis on the entanglement is important to avoid falling into compartmentalizing what Frontex does vis-a-vis member states and, thereby, evading responsibility.

We have been able to track instances in which Frontex interviews are transformed into a suspect declaration or are included in the police report in cases against boat drivers, often trying to make it look as if the information was extracted directly by the Spanish Police (UCRIF) instead of by Frontex officers. In her book Mujer de Frontera, the human rights defender Helena Maleno details the role of Frontex debriefing in the investigation against her conducted by the UCRIF. The police file included a report “signed by civil servants from the Romanian police” containing three debriefing interviews where Frontex officers inquired “whether she [Helena] helped them [interviewees] crossing, whether they know her, whether they have seen her”.[11] Maleno’s case shows how Frontex debriefing interviews can be geared to producing forensic evidence to be brought to the prosecution and the court.

In the EU, there is no harmonized view as to the legal nature of the statements provided by migrants upon arrival nor as to the legal status of the person providing the information. These statements are considered intelligence, evidence, or both. With regards to the person’s legal status, some countries consider them suspects whereas others consider them victims.[12] In Spain, the collection of statements upon arrival is “testimonial evidence”. These categorizations are non-existent in Frontex debriefing. While in practice these interviews gather both intelligence and evidence, there is no formal recognition of either, nor a distinction made between the two. Contrary to police work, which is highly regulated, the legal nature of Frontex debriefing is ambiguous. Under the guise of “voluntary conversations”, debriefing escapes oversight, legitimizing the routine denial of legal aid, while de facto feeding criminal cases against alleged smugglers. In other words, debriefing interviews serve as the basis for witness and suspect statements and guilty pleas.

The harms of futile border work

What our research shows is that debriefing interviews have a clear aim: to identify the skipper and others involved in the ‘organization’ of irregular travel, which often simply entails those steering the boat, those in charge of the GPS or the petrol. To do that, officers conduct covert interrogations with one or two potential witnesses as well as the suspect that will be then referred to the national authorities. Interviews take place surrounded by utmost opacity: there is no paper trail, no records of Frontex referrals to national authorities, no privacy and no lawyer is present. 

At the national level, it is common practice for lawyers to provide legal aid during interviews carried out by the police. Under Spanish law, even witnesses are entitled to legal assistance when being interviewed by the police. Furthermore, this safeguard, including the right to remain silent, also extends to “voluntary police interviews”.[13] So, we kept asking ourselves, why do debriefing interviews escape from these basic guarantees? 

In accordance with article 61.1.d of Law 4/2000 (dealing it the rights, freedoms and social integration of foreigners in Spain),[14] people interviewed by Frontex officers are held in preventive detention for the administrative offense of irregular entry. And, in their condition as detainees, they are entitled to legal aid as provided for in article 17.3 of the Spanish Constitution as well as article 520 of the Criminal Procedure Law (detainee’s rights). Therefore, it doesn't matter whether Frontex is interviewing a potential suspect of some criminal act, a witness, or a victim, because the right to legal aid does not depend on the profiles, nor on the types of statements, but on the detainee’s condition. 

The lawyer’s intervention is not banal. The Spanish Constitutional Court details three key functions that lawyers play in the context of detention. First, their mere physical presence ensures that “detainees’ constitutional rights are respected, that they are not subject to coercion or any treatment against their dignity.” Second, lawyers confirm the veracity of the statement as taken by the authorities. Third, they have an essential defence role when providing “technical advice during the interrogation, including the detainee’s right to remain silent.”[15] In addition, the Supreme Court specifies that the function of the lawyer in this area is to be “guarantor of the physical integrity of the detainee, and to avoid self-incrimination due to ignorance of the rights that assist him.”[16]

Clearly, Frontex is, again, acting in parallel to the law. The absence of basic guarantees in everyday routines is not surprising given the climate of impunity, and generalized lack of transparency in the way the agency conducts its joint operations.[17] But, beyond concrete human rights concerns, one should also question the mere existence of this practice of covert interrogations, cutting through institutional narratives that give high weight to the agency’s own ‘services’ and ‘products’. Research has shown the futility of the EU anti-smuggling agenda, to which debriefing contributes, as well as the harms of the increasing intertwining of migration and crime.[18] So, what is the actual relevance of these interviews in dismantling criminal networks? What is the value of testimonies gathered under the conditions described above, without lawyer, privacy and, at times, interpreter? Instead of foolishly following a trend of expansion, it is high time to question the value (considering the human rights cost and individual harms) of the enormous investment in border personnel, infrastructures, and technologies. Here, we have dissected the practice of covert interrogations but, on a wider scale, one should also question the relevance of Frontex’s work and the agency’s seemingly incessant expansion.

Cova Bachiller López and Fran Morenilla

Cova Bachiller López is a Marie-Skłodowska Curie doctoral researcher at Teesside University in the UK. This short piece is part of her broader research on the routinisation of border violence at EUrope’s borders. Fran Morenilla is a legal aid and Red Cross lawyer specialized in maritime arrivals and international protection. This article is based on the authors' collaborative research since October 2021. The authors submitted a complaint regarding the above debriefing practices before the Spanish Ombudsman in early 2022. They also contacted the Frontex Fundamental Rights Officer and, in the absence of clear action, they submitted a complaint before the European Ombudsperson in early August 2022.

Further reading

Notes

[1] Stavinoha, L., Fotiadis, A. and Zandonini, G, ’EU’s Frontex tripped in its plan for ‘intrusive’ surveillance of migrants’, BIRN, 2022, https://balkaninsight.com/2022/07/07/eus-frontex-tripped-in-plan-for-intrusive-surveillance-of-migrants/

[2] Keady-Tabbal, N. and Mann, I., ‘“Pushbacks” as Euphemism’, Ejil Talk, 2021,  https://www.ejiltalk.org/pushbacks-as-euphemism/ 

[3] See, for instance, Special Rapporteur on the human rights of migrants,  ‘Report on means to address the human rights impact of pushbacks of migrants on land and at sea’, May 2021, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/106/33/PDF/G2110633.pdf?OpenElement and “Lethal Disregard” Search and rescue and the protection of migrants in the central Mediterranean Sea, OHCHR, May 2021, https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/OHCHR-thematic-report-SAR-protection-at-sea.pdf

[4] See, for instance, Frontex, ‘Frontex Strategic Risk Analysis 2022’, 2022, https://prd.frontex.europa.eu/

[5] Loftus, B., ‘Police culture in a changing world’, Oxford University Press, 2009; Cockroft, T., ‘Police Culture. Themes and Concepts’, Routledge 2013.

[6] For a detailed analysis of CATES see Barbero, I., ‘Los Centros de Atención Temporal de Extranjeros como nuevo modelo de control migratorio: situación actual, (des)regulación jurídica y mecanismos de control de derechos y garantías’, Derechos y Libertades, Vol. 45, Epoca II, pp. 267-302, 2021

[7] See Spanish Ombudsman’s reports, https://www.defensordelpueblo.es/informes/

[8] The Team Leader is a police officer (in Spain, from Policia Nacional) acting as the liaison between Frontex and the host authority. Team Leaders play a central role in Frontex operations.

[9] Frontex Management Board Decision 8/22, 26 January 2022.

[10] Bachiller Lopez, C., ‘Border policing at sea: Tactics, routines and the law in a Frontex patrol boat’, The British Journal of Criminology, 2022.

[11] Maleno, H., ‘Mujer de frontera. Defender el derecho a la vida no es un delito’, Península.

[12] ‘Judicial use of information following the debriefing of migrants at external borders’, Eurojust, 2021

[13] Wang v. France, No. 83700/17, 28 Abril 2022

[14] Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social, https://boe.es/buscar/act.php?id=BOE-A-2000-544

[15] STC 38/2003, Sala 1, 27 February 2003

[16] STS 252/1994, 19 September 1994

[17] See, for instance, Decision in OI/4/2021/MHZ on how the European Border and Coast Guard Agency (Frontex) complies with its fundamental rights obligations and ensures accountability in relation to its enhanced responsibilities, 17 January 2022,

 https://www.ombudsman.europa.eu/en/decision/en/151369; Jane Kilpatrick, ‘Frontex: more power, no responsibility? Mega-agency lacks real accountability structure’, Statewatch, 19 April 2022

https://www.statewatch.org/analyses/2022/frontex-more-power-no-responsibility-mega-agency-lacks-real-accountability-structure/

[18] Sanchez, G., ‘Beyond Networks, militias and tribes: rethinking EU counter-smuggling policy and response’, Euromesco, 2021; Perkowski, N. and Squire, V., ‘The anti-policy of European anti-smuggling as a site of contestation in the Mediterranean migration ‘crisis’’, Journal of Ethnic and Migration Studies, 45 (12), pp. 2167-2184, 2019; Aas, K. and Bosworth, M., ‘The Borders of Punishment: Migration, Citizenship, and Social Exclusion’, Oxford, 2013.

 

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