23 July 2020
Frontex has launched its second executive operation in a state outside the EU, deploying officers in Montenegro on 15 July.
Frontex officers will be placed at the border with Croatia, offering "support [to] Montenegro’s border guards” with plans to “expand its presence to border control activities at sea, including support in search and rescue."
Frontex states the aims of the operation are:
"to tackle cross-border crime, including migrant smuggling, trafficking in human beings, document fraud, stolen vehicles and boats, smuggling of drugs and weapons and terrorism."
Frontex also has an ongoing operation at the Albanian-Greek border. These operations are the first resulting from a series of Status Agreements between the EU and a number of Western Balkan states. Such agreements have also been signed with Serbia, Bosnia and Herzegovina, and North Macedonia. The contents of all the agreements are broadly similar, with differences resulting from the negotiation procedures with each state.
All five agreements allow the agency to carry out joint operations and rapid border interventions on the states' borders, where those borders are coterminous with those of an EU member state or states. This is because the status agreements were signed under the agency’s previous mandate, which only allowed external operations in states bordering the EU. For any future status agreements, signed under Frontex’s 2019 Regulation, there will be no such territorial limit.
The European Parliament voted to approve the agreement with Montenegro in February 2020, along with the agreement with Serbia. The agreements with North Macedonia and with Bosnia and Herzegovina are still to be ratified by national governments and given assent by the European Parliament.
The European Parliament has noted, while giving consent to the agreements with Serbia and Montenegro, that any future agreements should only be reached after a fundamental rights assessment of the state in question, and must adhere to provisions in the agency’s 2019 regulation, in particular with regard to fundamental rights monitoring of operations.
At the executive director’s discretion, the agency can terminate or suspend an operation where it is aware of fundamental rights violations. Such violations are increasingly being reported by migrants at Croatia’s external borders, with accounts of people being denied access to asylum procedures, and being pushed back into Bosnia and Herzegovina once in Croatian territory. While the agency was aware of allegations of pushbacks and violence by national border guards in Hungary, Frontex operations in the member state were not suspended or terminated.
When approached for comment, the agency could not clarify whether the operation would also span Montenegro’s border with Bosnia and Herzegovina, stating, "it is too early to comment on further development of the scope of the operational activities in Montenegro".
In Croatia, accusations of violence and pushbacks at the external borders have risen in 2020, with reporting by the Border Violence Monitoring Network in June outlining that police in Croatia have been falsifying records in order to conduct illegal pushbacks of groups of people arriving in the country.
When asked about how Frontex will address any witnessing or disclosure of fundamental rights violations as part of this operation, the agency provided the following response:
"Prior to any deployment our officers undergo a pre-deployment training that includes the fundamental rights matters... Our operational officers are obliged to comply with European law, international law, fundamental rights and also the national law of the host country. They are also bound by the code of conduct that Frontex developed after consultation with our consultative forum. This code of conduct includes a paragraph specifically related to the prevention of refoulement and the upholding of human rights, all in line with the European Charter of Fundamental Rights.
Among numerous tasks and responsibilities, our officers have to report about potential fundamental rights violations and challenges and submit a serious incident report in case of alleged violations of fundamental rights. All the above is mentioned in the Operational Plan.
In addition, we have an independent fundamental rights officer, whose task is to oversee the respect of fundamental rights in all our operations.
Frontex takes responsibility for its activities in the field and in case of doubts the Executive Director immediately contacts the appropriate authorities in the member states."
Article 5(a) of the Frontex Code of Conduct for all persons participating in Frontex activities requires that participants promote "in full compliance with the principle of no refoulement, that persons seeking international protection are recognised".
Frontex’s new Regulation, which entered into force in December, requires that 40 fundamental rights officers be in post by the end of this year. According to a recent LIBE committee report, due to the current understaffing, the fundamental rights officer (FRO) cannot at present fulfil its role of supporting training for the standing corps, or ensure comprehensive fundamental rights training for return activities. The FRO is of the opinion that training as it stands needs to better integrate fundamental rights aspects.
Nine serious incident reports were received by the FRO last year. Most such reports currently concern member state authorities or staff (as Frontex's own 'standing corps' is not yet operational) and it can take member states a very long time to investigate reports and update the FRO on any actions taken.
Once the status agreements are in force, Frontex operations are launched in accordance with an operational plan agreed with each state. These plans include the circumstances under which Frontex staff can use executive powers, and other details of the operations not available elsewhere. These plans are not systematically made public and although it is possible for the public to request their release, Frontex can refuse access to them. These non-public documents contain important provisions on fundamental rights and data protection, as well as details on the aims and objectives of the agency's operations.
The status agreements also confer on Frontex officers a level of immunity under the criminal jurisdiction of the host states. Article 96 of the 2019 Frontex Regulation outlines that statutory staff are covered by Protocol No 7 on the Privileges and immunities of the European Union annexed to the Treaty on European Union (TEU) and to the TFEU. However, the agency noted this year that as these operations take place outside of EU territory, Protocol No 7 cannot apply. The Commission is currently investigating this issue, and did not respond to Statewatch’s request for comment.
The agreement with Montenegro is the only status agreement to include a provision that Frontex teams must give evidence as witnesses in criminal proceedings. However, article 7 of the agreement grants team members immunity from Montenegro’s criminal jurisdiction for “acts performed during and for the purpose of their official functions in the course of the actions carried out in accordance with the operational plan.” It is at the executive director’s discretion to decide if such an act has been committed in the course of Frontex activities or not, and the closed nature of operational plans limits any external scrutiny of such decisions.
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