Frontex: will a Management Board "sub-group" find the truth about pushbacks?

On Tuesday last week, an extraordinary Frontex Management Board meeting was called by Home Affairs Commissioner Ylva Johansson, following allegations that the agency has been involved in illegal pushbacks of migrants from Greece. During the meeting, the Commission presented questions for Frontex to answer by the end of the month, when another Management Board meeting will be held. A "sub-group" has now been set up by the Board to investigate allegations of abuse and other matters.


In a statement published the same day as the urgent meeting, Frontex highlighted that the Executive Director, Fabrice Leggeri, was calling for the establishment of:

"...an evaluation committee to consider legal questions related to the Agency’s surveillance of external sea borders and accommodating the concerns raised by Member States about “hybrid threats” affecting their national security at external borders."

The issue of the agency's alleged direct involvement in violations of fundamental rights received rather less attention in Leggeri's statement, which noted that the agency would "reinforce the office of the Fundamental Rights Officer and to gradually increase its budget". The agency has just under a month now to fulfil its legal obligation to employ 40 fundamental rights monitors by 5 December this year. 

The conclusions of the Management Board meeting outline a decision to create a sub-group that will "further consider" the issues raised by Leggeri. The mandate of this subgroup will be discussed at the end of November. It should be noted that the Management Board is made up of representatives of EU member states and the European Commission.

The conclusions emphasise that "urgent action is needed in order to investigate all aspects" related to fundamental rights and allegations faced by the agency. They outline: 

"To that aim, the Management Board asks the Executive Director to ensure that the internal reporting system is solid and effective in order to allow for an immediate follow-up in case of incidences. Furthermore, it supports the proposal of the Executive Director to beef-up the training in fundamental rights and to provide this training not only to Frontex-deployed staff, but also to the staff of the ICCs [International Coordination Centre, responsible for coordinating the different authorities involved in Frontex joint operations]."

Despite the plan to set up an "evaluation committee" tasked with looking into accusations levelled against Frontex in media reports, documentation seen by Statewatch indicates that the agency already believes it has no case to answer with regard to illegal pushbacks. A report prepared by the agency casts doubt on the clarity and verifiability of the reports that have appeared in media outlets such as Bellingcat and Spiegel.

Fundamental rights in the field

Leggeri proposed that the Fundamental Rights Office play "a bigger role in raising awareness of the operational officers on the legal requirements that they need to apply on everyday basis in the field."

However, the idea that operational officers are not aware of the legal requirements faced in their role has faced some scepticism. 

On Twitter, Amandine Bach, a political advisor for the European United Left — Nordic Green Left (GUE/NGL) group in the European Parliament, stated:

"Push backs are systematic and result of chain of command going to top. Making us believe these illegal actions are being carried because of no legal training is a joke. They know legality, what we need is clear instructions from top level"

Amnesty International's EU division has called for a Commission investigation into pushback allegations and for clarity on Frontex's obscure actions in Greece, in a long thread dedicated to the issue.

The thread reminds readers of the Executive Director's obligation, never implemented, to suspend, terminate or not launch activities, if the Director "considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist" (Article 46(4), 2019 Regulation). 

More independence needed for monitoring mechanisms

Eight organisations, including Amnesty, have called for a new monitoring mechanism at European borders to ensure fundamental rights and accountability. They argue that the mechanism proposed in the Commission's new Pact on Asylum and Migration does not have adequate scope or independence, and that there is currently insufficient accountability for fundamental rights violations. "Failing this", they say, "the mechanism risks being a fig leaf behind which violations continue."

Human Rights Watch, meanwhile, are demanding an independent inquiry into the allegations of Frontex involvement in pushbacks.

While both Amnesty and HRW suggests that the European Commission conduct this inquiry, it should in fact comes under the role of Frontex's fundamental rights officer. The powers and independence of that officer are matters that the European Ombudsman has just begun investigating as part of an inquiry. The inquiry will also examine the effectiveness and transparency of the agency's complaints mechanism.

According to the Ombudsman: 

"Seven years on from my Special Report, and aware of concerns having been expressed, I believe it is timely to assess how the Complaints Mechanism is functioning and have therefore decided to launch an inquiry on my own initiative."

The individual complaints mechanism was set up following a special report by the Ombudsman in 2013. The 2020 inquiry will examine whether these measures (the fundamental rights officer and the complaints mechanism) really have the power to deal with the violations of migrants’ rights with which Frontex has long been accused of involvement.

The Ombudsman's inquiry

The Ombudsman has sent a number of questions to Frontex, focusing in turn on procedural issues, the fundamental  rights office, and the accessibility of the complaints mechanism. Frontex and the fundamental rights office have until 15 January to respond to these questions, which include: 

  • How is Frontex preparing for the expected increase of complaints due to its reinforced border management tasks?
  • What, if any, action can Frontex take if a forced return is scheduled for an individual whose complaint to the Fundamental Rights Officer is pending?
  • What provisions does Frontex have in place to ensure that its Fundamental Rights Officer can operate independently? What capacity and resources are made available to enable the Fundamental Rights Officer to conduct thorough and prompt investigations based on evidence?
  • What steps has Frontex taken to ensure that its Complaints Mechanism is accessible in practice?
  • How does Frontex ensure that individuals in non-EU countries, who wish to complain about possible fundamental rights violations in the context of Frontex operations, can effectively use the Complaints Mechanism? This issue has become even more pertinent now that Frontex’s mandate has been expanded, and includes operations in non-EU countries. How will Frontex ensure the dissemination of information on fundamental rights protection procedures, notably in these non-EU countries?

One question has already been asked by a number of civil society organisations, including Statewatch, with no satisfactory response:

Bearing in mind that Regulation 2019/1896 entered into force on 4 December 2019, what is the process for drafting and implementing rules to update the Complaints Mechanism?

The Ombudsman also asks for clarification regarding the ongoing procedure for appointing a new fundamental rights officer. The role has long been carried out by an officer ad-interim.

The agency is obliged to employ 40 fundamental rights monitors by 5 December, to aid the fundamental rights officer in their work and ensure that fundamental rights are upheld in all areas of the agency's activities. It is unknown how many of these monitors have been recruited so far, but Frontex’s careers website does not appear to have contained any advertisements for such a role any time recently.

Frontex and the fundamental rights officer's responses will be published on the Ombudsman's website after the conclusion of the investigation, along with the report of an electronic inspection of documents related to the complaints mechanism. This aims to show how Frontex has followed up on reports to the fundamental rights office.

This article was updated on 20 November 2020 to clarify that Amandine Bach is a political advisor for the GUE/NGL group in the EP, and not simply a member, as was previously stated.

Further reading

27 October 2020

Frontex to carry out "internal inquiry" into allegations of direct involvement in pushbacks


05 November 2020

Pullback to Turkey organised by Greek official on German boat as part of Frontex operation


27 October 2020

EU: Frontex signs contract for "human intelligence training" with private security company

 

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