EU: Frontex in the Balkans: Serbian government rejects EU's criminal immunity proposals

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Frontex in the Balkans: Serbian government rejects EU's criminal immunity proposals
- Plans to subject European border guards operating in Serbia to officials' home Member State law hit problems
- Fundamental rights provisions no longer include explicit protection from discrimination on grounds of "gender identity"
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The Serbian government is not happy with EU proposals that Frontex teams would be able to operate on its territory with total immunity from Serbian law. After two rounds of talks between the EU and Serbia, the text of a proposed agreement that would govern Frontex teams' joint operations, "rapid border interventions" or return operations in the Western Balkan country shows that the Serbian side rejects the EU's proposal that "members of the team shall enjoy immunity" from the administrative, civil and criminal jurisdiction of the Republic of Serbia.

See: Status agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency on the territory of the Republic of Serbia(9318/17, RESTREINT/RESTRICTED, 19 May 2017, pdf)

Whose jurisdiction?

The EU's proposal for Article 6, 'Privileges and Immunities of the members of the team', would exempt members of Frontex teams operating in Serbia from the jurisdiction of Serbian administrative, civil and criminal law.

The provisional text agreed following two rounds of negotiations shows that the Serbian side wishes to replace the EU's proposal with the following text:

"1. During the action, members of the team shall be treated in the same way as police officers of the Republic of Serbia in respect of all criminal offences that might be committed against or by them.

2. The Republic of Serbia may, upon examining all circumstances of a specific case, decide to transfer criminal proceedings to the competent authorities of the home Member State.

3. The Agency shall be held liable for any possible damage caused by members of the team while acting in the Republic of Serbia."

For the EU's part, it has proposed deleting the first paragraph of Article 6, removing the provision: "Members of the team shall not be subject to any form of arrest or detention in the Republic of Serbia." However, this appears to be the only compromise offered so far.

It is not clear which of these two positions would be preferable from the standpoint of those who would be the subject of Frontex teams' actions. A 2016 report (pdf) on the accountability of the Serbian police published by the Belgrade Centre for Security Policy found that:

"the rules relating to the procedure of filing complaints against police officers are unclear and unavailable, and as such deter citizens from filing complaints. As a result, 90% of the filed complaints are resolved by a conclusion that there had been no violation of the citizens’ rights."

Discrimination on gender identity grounds

The text, circulated to the secretive Council of the EU working group the JHA Counsellors on 19 May, also shows that the two sides have agreed to delete the words "gender identity" from a list of grounds on which Frontex and Member State officials must not discriminate against individuals. Specifically, the text says:

"While performing their tasks and exercising their powers, they [members of the Frontex team] shall not arbitrarily discriminate against persons on any grounds including sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or gender identity."

While the resulting text is in keeping with Article 7 of the Schengen Borders Code ("border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation") it removes specific protections for people arguably facing a particular risk of discrimination.

Keeping the 'Balkan Route' closed

The proposed deal with Serbia will allow Frontex teams (made up of Frontex staff or border guards and other relevant staff from participating Member States) to carry out activities on Serbian territory, specifically:

  • Joint operations: an action based in Serbia but aimed at "tackling illegal immigration or cross-border crime or aimed at providing increased technical and operational assistance at the external borders of a Member State neighbouring the Republic of Serbia";
  • Rapid border interventions: "an action aimed at rapidly responding to a situation of specific and disproportionate challenges at the borders of the Republic of Serbia neighbouring a Member State and deployed in the territory of the Republic of Serbia for a limited period of time";
  • Return operations: "an operation that is organised or coordinated by the Agency and involves technical and operational reinforcement being provided by one or more Member States under which persons for whom the final decision on the return has been made are returned from one or more Member States either on a forced or voluntary basis to the Republic of Serbia."

The first two could perhaps be considered as the externalisation of the EU border within Europe, to Serbia - a clear attempt to ensure that the 'Balkans Route', used by so many people to travel to safety until spring 2016, remains "closed".

The third point, on return operations, is pertinent given that the recent report on the "operationalisation of the European Border and Coast Guard" showed that the majority of Frontex-coordinated return operations between January and June had Western Balkans countries as their destination (101 of 144 flights).

The EU is also attempting to reach a similar agreement with Macedonia. The deals are based on the new Frontex Regulation, adopted in September 2016. As summarised by ECRE (emphasis added):

"Under Article 54 of the EBCG Regulation, [pdf] which was adopted in September 2016 Frontex may carry out “actions at the external borders involving one or more Member States and a third country neighbouring at least one of those Member States, including on the territory of that third country.” This is a highly controversial extension of Frontex’ powers to engage with third countries in border management. Although legally ambiguous, working arrangements concluded by the Agency with third countries under its previous mandate only allowed for technical cooperation and support, excluding any operational activity on the territory of the third country concerned."

It is currently unknown when negotiations with Serbia will be concluded. A Commission spokesperson told Statewatch in mid-June that:

"The first round of negotiations took place on 7 April in Brussels and was followed by a second round in Belgrade on 11-12 May. There has been a considerable progress made in reaching preliminary agreement on the text, however some issues still remain open. The next round of negotiations is not scheduled yet."

See also: Deploying armed Frontex teams on the 'Balkan Route': agreements with Serbia and Macedonia on the way (Statewatch News Online, 1 May 2017)

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