22 May 2019
The EU has taken a significant, if geographically small, step in the externalisation of its borders. The European Border and Coast Guard Agency, Frontex, has launched its first Joint Operation on the territory of a non-EU-Member State, as it begins cooperation with Albania on the border with Greece.
After the launch of the operation in Tirana on 21 May a deployment of 50 officers, 16 patrol cars and a thermo-vision van started yesterday, 22 May (European Commission, link). Twelve Member States (Austria, Croatia, the Czech Republic, Estonia, Finland, France, Germany, Latvia, the Netherlands, Romania, Poland and Slovenia) have contributed to the operation.
The move follows the entry into force on 1 May this year of a Status Agreement between the EU and Albania on actions carried out by Frontex in that country (pdf). Those actions are made possible by the conclusion of operational plans, which must be agreed between Frontex and the Albanian authorities.
The Status Agreement with Albania was the first among several similar agreements to be signed between the Agency and Balkan States, including Bosnia and Herzegovina, Serbia and North Macedonia.
The nascent operation in Albania will give Frontex team members certain powers, privileges and immunities on Albanian territory, including the use of force in circumstances authorised by Albanian border police and outlined in the operational plan.
Frontex does not publish operational plans whilst operations (which can be renewed indefinitely) are ongoing, and documents published after the conclusion of operations (usually in response to requests for access to documents) are often heavily-redacted (Ask the EU, link).
Article 4 of the Status Agreement outlines the tasks and powers of members of Frontex teams operating in Albanian territory. This includes the use of force, if it is authorised by both the Frontex team member's home Member State and the State of Albania, and takes place in the presence of Albanian border guards. However, Albania can authorise team members to use force in their absence.
Article 6 of the Status Agreement grants Frontex team members immunity from Albanian criminal, civil and administrative jurisdiction "in respect of the acts performed in the exercise of their official functions in the course of the actions carried out in accordance with the operational plan".
Although a representative of Albania would be informed in the event of an allegation of criminal activity, it would be up to Frontex's executive director to certify to the court whether the actions in question were performed as part of an official Agency function and in accordance with the Operational Plan. This certification will be binding on the jurisdiction of Albania. Proceedings may only continue against an individual team member if the executive director confirms that their actions were outside the scope of the exercise of official functions.
Given the closed nature of the operational plans, this grants the executive director wide discretion and ensures little oversight of the accountability of Agency team members. Notably, Article 6 also states that members of teams shall not be obliged to give evidence as witnesses. This immunity does not, however, extend to the jurisdiction of team members' home Member States, and they may also waive the immunity of the individual under Albanian jurisdiction.
Right to redress
These measures of immunity alongside the lack of transparency surrounding documents outlining team members' official functions and activities (the operational plan) raise concerns regarding access to redress for victims of human rights violations that may occur during operations.
Human rights organisations have denounced the use of force by Frontex team members, only to have those incidents classified by the Agency as par for the course in their operations. Cases includeincidents of firearm use that resulted in serious injury (The Intercept, link), but that was considered to have taken place according to the standard rules of engagement. This opacity has implications for individuals' right to good administration and to the proper functioning of accountability mechanisms.
If any damage results from actions that were carried out according to the operational plan, Albania will be held liable. This is the most binding liability outlined by the Status Agreement. Albania may only "request" that compensation be paid by the Member State of the team member responsible, or by the Agency, if acts were committed through gross negligence, wilful misconduct or outside the scope of the official functions of the Agency team or staff member.
Across the board
The provisions regarding tasks, powers and immunity in the Status Agreements with Albania, Bosnia and Herzegovina, the Republic of North Macedonia and Serbia are all broadly similar, with the exception of Article 6 of the agreement with Bosnia and Herzegovina. This states:
"Members of the team who are witnesses may be obliged by the competent authorities of Bosnia and Herzegovina to provide evidence in accordance with the procedural law of Bosnia and Herzegovina".
The Status Agreement with Serbia, an early draft of which did not grant immunity to team members, is now consistent with the Agreement with Albania and includes provisions stating that members of teams shall not be obliged to give evidence as witnesses.
It includes a further provision that:
"...members of the team may use weapons only when it is absolutely necessary in self-defence to repel an immediate life-threatening attack against themselves or another person, in accordance with the national legislation of the Republic of Serbia".
European Commission press release, European Border and Coast Guard: Launch of first ever joint operation outside the EU (21 May 2019, pdf)
Status Agreement between the European Union and the former Yugoslav Republic of Macedonia on actions carried out by the European Border and Coast Guard Agency in the former Yugoslav Republic of Macedonia
Frontex gets ready to deploy to the Balkans, Statewatch News Online, 9 May 2019
NGOs, EU and international agencies sound the alarm over Frontex's respect for fundamental rights (5 March 2019)
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