26 May 2021
Human rights organisation Front-Lex has submitted the first ever action against Frontex to the Court of Justice of the EU (CJEU), calling on it to take measures to ensure that Frontex meets its human rights obligations under international and EU law.
The action has been brought on behalf of two asylum-seekers who "were violently rounded up, assaulted, robbed, abducted, detained, forcibly transferred back to sea, collectively expelled, and ultimately abandoned on rafts with no means of navigation, food or water. The Applicants were also victims of other ‘push-back’ operations during their attempts to seek protection in the EU," says the Front-Lex press release.
The application to the CJEU (pdf) accuses Frontex of complicity in the multiple human rights violations taking place at Greece's borders, in particular since March 2020 when the country introduced even-stricter measures to "prevent departures" from (that is, conduct pushbacks to) Turkey:
"267. Frontex knows: all of the reported and unreported ‘pushback’ operations in the Aegean Sea Region were part of the joint policy introduced on March 2020. This policy has been the basis for the launch of RBI [Rapid Border Intervention] Aegean. The ‘new tactics’ policies were incorporated to Joint Operation Poseidon and are in force to date.
268. Frontex knew about this ongoing unlawful State policy from its outset. Frontex adapted its conduct according to a clear division of labor and is complicit in its execution from day one. Now, it is desperately trying to cover up its ongoing infringement of the Treaties by using smoke and mirrors about the ‘complexity’ lurking in Regulation 655/2014, in light of a manifestly irrelevant ECtHR judgment."
The application recalls that Frontex has positive and negative human rights obligations that it is failing to meet. Indeed, it argues that because of the structural and organisational failings within the organisation, it is unable to meet those obligations:
"230. The Agency’s Executive Director was and still is under the obligation to take one of the measures prescribed in art. 46 of EBCG Regulations. By not doing so, in infringement of its positive obligations to guarantee the protection of fundamental rights, the Agency has failed, and is in a constant state of failure, to act – in infringement of the Treaties – within the meaning of art. 265 TFEU.
231. In order to apply Article 46(4), the Executive Director needs to be capable of gaining knowledge of fundamental rights violations or international protection obligations related to its activities. The inexistent reporting and monitoring systems of the Agency, its organizational culture of concealment and retaliation against officers who wish to adhere to functioning accountability mechanisms, brings about an unreasonable state of affairs in which violations of fundamental rights and international protection obligations categorically cannot be acknowledged by the Agency."
It is now for the CJEU to determine whether the application is admissible.
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