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Udvalget for Udlændinge- og Integrationspolitik 2013-14
UUI Alm.del Bilag 133
Offentligt

ANNUAL REPORT

Frontex Consultative Forum

on Fundamental Rights

2013

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ANNUAL REPORT

Frontex Consultative Forum

on Fundamental Rights

Consultative Forum Members as of October 2013:

•

Amnesty International European Institutions Office (AI EIO)

Caritas Europa

Churches’ Commission for Migrants in Europe (CCME)

Council of Europe (CoE)

European Asylum Support Office (EASO)

European Council on Refugees and Exiles (ECRE)

European Union Agency for Fundamental Rights (FRA)

International Catholic Migration Commission (ICMC)

International Commission of Jurists (ICJ)

International Organization for Migration (IOM)

Jesuit Refugee Service Europe (JRS)

Organisation for Security and Co-operation in Europe, Office for Democratic

Institutions and Human Rights (OSCE / ODIHR)

Platform for International Cooperation on Undocumented Migrants (PICUM)

Red Cross EU Office

United Nations High Commissioner for Refugees (UNHCR)

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European Agency for the Management

of Operational Cooperation

at the External Borders of the Member States

of the European Union

Rondo ONZ 1

00-124 Warsaw, Poland

T +48 22 205 95 00

F +48 22 205 95 01

[email protected]

www.frontex.europa.eu

the source is acknowledged.

Printed version:

OPOCE Catalogue number:

TT-AH-14-001-EN-C

ISBN 978-92-95033-88-7

ISSN 2363-104X

DOI 10.2819/34912

PDF:

OPOCE Catalogue number:

TT-AH-14-001-EN-N

ISBN 978-92-95033-87-0

ISSN 2363-1058

DOI 10.2819/34860

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ANNUAL REPORT 2013

Contents

1. INTRODUCTION

2. THE ROLE OF THE FRONTEX CONSULTATIVE FORUM

What does the Consultative Forum do?

How does the Consultative Forum work?

What can the Consultative Forum not do?

Co-operation with the Fundamental Rights Officer

and with the Consultative Forum Secretariat

3. WORK DONE IN 2013

3.1. Strategic Planning and Frontex Programme of Work 2014

3.2. Operations

3.2.1. Code of Conduct for Joint Return Operations (CoC JROs)

3.2.2. Joint sea / land border operations

3.3. Risk analysis

3.4. Training

3.4.1. Common Core Curriculum

3.4.2. Training of European Border Guard Teams (EBGT)

3.5. Recommendations of the European Ombudsman

4. CONCLUSIONS FOR 2013

5. PREVIEW 2014

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INTRODUCTION

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ANNUAL REPORT 2013

While Frontex has been operational since 2005, the obligation to set

up a Consultative Forum was introduced in a revision of the Frontex

Regulation in October 2011,

under the heading

“Fundamental Rights

Strategy”

(Article 26 (a)).

The composition of the Consultative Forum is partly prescribed by the

Frontex Regulation and partly decided upon by Frontex. EASO, FRA

and UNHCR are mandatory members.

“Other relevant organisations”

are invited by the Agency to participate in the Consultative Forum by

decision of the Frontex Management Board (MB), as proposed by the

Executive Director.

In light of the responses received to a call for expressions of interest,

the Management Board decided on the following composition of the

Consultative Forum:

(i) two European Union Agencies:

◆

European Union Agency for Fundamental Rights (FRA)

◆

European Asylum Support Office (EASO)

(ii)

◆

four UN Agencies and Intergovernmental Organisations:

United Nations High Commissioner for Refugees (UNHCR)

International Organization for Migration (IOM)

Organisation for Security and Co-operation in Europe, Office for

Democratic Institutions and Human Rights (OSCE

/ ODIHR)

Council of Europe (CoE)

Council Regulation (EC) No. 2007/2004 of 26 October 2004 establishing a European Agency for the

Management of Operational Cooperation at the External Borders of the Member States of the European

Union (Frontex Regulation), OJ L 349, 25.11.2004, p. 1, as last amended.

Frontex Regulation, Article 26a (2), first paragraph.

Management Board Decision No. 12/2012 of 23 May 2012 on the Composition of the Frontex Consultative

Forum.

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

(iii) nine Civil Society Organisations:

◆

Amnesty International European Institutions Office (AI

EIO)

◆

Caritas Europa (CE)

◆

Churches’ Commission for Migrants in Europe (CCME)

◆

European Council on Refugees and Exiles (ECRE)

◆

International Commission of Jurists (ICJ)

◆

International Catholic Migration Commission (ICMC)

◆

Jesuit Refugee Service Europe (JRS)

◆

Platform for International Cooperation on Undocumented Migrants

(PICUM)

◆

Red Cross EU Office.

These key international institutions and civil society organisations work-

ing in the area of the protection of the fundamental rights of migrants

in Europe were asked to appoint representatives and substitute mem-

bers to the Consultative Forum.

Costs related to the participation of Members in Consultative Forum

meetings are borne as a rule by Frontex.

The Consultative Forum was officially established in October 2012 and

started its activities in January 2013.

At the inaugural meeting of the Consultative Forum, the representa-

tive of FRA, Aydan Iyigüngör, was elected Chair, and Stefan Keßler

of JRS Co-Chair of the Consultative Forum. It should be noted that the

Working Methods set out that the Consultative Forum Chair

“shall be

elected among the three organisations explicitly mentioned in the Ar-

ticle 26a (2) of Frontex Regulation and shall rotate among them after-

wards”,

whereas the Co-Chair “shall

be elected among the remaining

Management Board Decision No 18/2012 on the working methods of the Frontex Consultative Forum

and modalities of the transmission of information to the Frontex Consultative Forum, 26 September 2012

(hereafter: the Working Methods), Title I, Article 4.3. Available at: http://frontex.europa.eu/assets/Partners/

Consultative_Forum_files/Working_Methods.pdf

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ANNUAL REPORT 2013

Consultative Forum members”.

The duration of their mandates is one

year and is renewable.

The first year of functioning of the Consultative Forum has shown that

its diverse composition and collective knowledge and expertise of the

Consultative Forum have put it in a position to provide Frontex with

holistic analyses on fundamental rights issues. The Members of the

Consultative Forum can indeed collect, within their respective organi-

sations and spheres, a wide range of information of a social, legal and

technical nature. This allows the Consultative Forum to produce evi-

dence-based advice.

This first year was also needed for the 15 Consultative Forum mem-

bers to understand the functioning of Frontex and to develop the Con-

sultative Forum’s own working methodology.

Pursuant to the Frontex Regulation, the Consultative Forum has to sub-

mit a publicly available annual report.

This is the first such report. It intends to explain the functioning of the

Consultative Forum, retrace Consultative Forum’s activities in 2013 and

give a short outlook for 2014.

The report contains the main recommendations that the Consultative

Forum made to Frontex and its Management Board in 2013 and the

impact of those.

The Consultative Forum hopes that its first annual report will be dis-

seminated widely among the policy makers and practitioners concerned

with border management.

Working Methods, Title I, Article 3.1.

Frontex Regulation, Article 26a (2), third paragraph. According to the Working Methods (Title I, Article 3.6)

the annual report has to be presented to the Management Board before being “made publicly available”. This

happened for the present report at two meetings, on 27 March and 25 April 2014.

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THE ROLE OF THE FRONTEX

CONSULTATIVE FORUM

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ANNUAL REPORT 2013

What does the Consultative Forum do?

According to the Frontex Regulation, the key role of the Consultative Fo-

rum is

“…to assist the Executive Director and the Management Board

in fundamental rights matters”.

Core areas, on which the Consultative Forum has to be consulted, are

“the further development and implementation of the Fundamental Rights

Strategy, Code of Conduct and common core curricula”.

By the time the above article was added to the Frontex Regulation,

Frontex had already developed a Fundamental Rights Strategy.

This

Strategy, is implemented by Frontex in accordance with a Fundamen-

tal Rights Action Plan outlining twenty-one actions.

The Working Methods of the Consultative Forum specify that the Con-

sultative Forum

“is a knowledge and expertise resource to enable Fron-

tex and its Management Board to gain information and advice relevant

to the aim of developing and promoting the respect of Fundamental

Rights in all Frontex activities”.

The Consultative Forum

“offers strate-

gic opinions, recommendations and a pool of information on how Fron-

tex can structurally improve the respect and promotion of fundamental

rights in its various activities”.

The Consultative Forum works in the public eye. Public access to the

opinions and recommendations issued by the Consultative Forum is

to be provided by Frontex in accordance with the relevant EU rules.

Frontex Regulation, Article 26a (2), first paragraph.

Frontex Regulation, Article 26a (2), second paragraph.

The Frontex Fundamental Rights Strategy was approved by the Management Board on 31 March 2011.

The Fundamental Rights Action Plan was adopted by Frontex on 29 September 2011.

Working Methods, Introduction.

Working Methods. Title I, Article 3.6.

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

How does the Consultative Forum work?

According to the Frontex Regulation, it is the Management Board that

decides on the Working Methods of the Consultative Forum.

In real-

ity the Working Methods were a result of negotiations, which the Con-

sultative Forum appreciated. Their revision by the Management Board

is foreseen

“at the latest three years after [their] entry into force”.

This

will be an occasion for improvements.

The Consultative Forum holds formal and informal meetings at the

Frontex headquarters in Warsaw. In 2013, three meetings took place,

in January, May and October. Formal meetings are attended by the

Management Board Chairperson or a representative, the Executive

Director or deputy, the Fundamental Rights Officer as well as senior

Frontex staff.

The Consultative Forum plans its work, to the greatest extent possible,

through Annual Work Plans, that are adopted at the beginning of the

year. But the Work Plan remains flexible to react to issues that may

arise during the year.

In order to be able to cover more ground, the Consultative Forum has

decided to not only work in plenary but also in Working Groups. Four

Working Groups were set up:

◆

Working Group on Border Joint Operations (chaired by UNHCR),

Working Group on Return Operations (chaired by CCME),

Working Group on Risk Analysis (chaired by AI EIO),

Working Group on Training (chaired by EASO).

Frontex Regulation, Article 26a (2) First Paragraph:

“On a proposal by the Executive Director, the Management

Board shall decide on […] the working methods of the Consultative Forum and the modalities of the

transmission of information to [it]”.

Working Methods, Title III, Article 1.2.

Working Methods, Title I, Article 2.3.

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ANNUAL REPORT 2013

On average, each member of the Consultative Forum takes part in

two Working Groups.

The Consultative Forum is asked to

“operate according to the princi-

ples of transparency, mutual respect, open process, informed partici-

pation, collegiality and consensus”.

One sensitive issue that required an understanding between Frontex

and the Consultative Forum was to what extent and under which mo-

dalities the Consultative Forum Members would have access to inter-

nal Frontex information and documentation. The principle is contained

in the Frontex Regulation: just as the Fundamental Rights Officer, the

Consultative Forum “shall have access to all information concerning re-

spect for fundamental rights, in relation to all activities of the Agency”.

The solution put in place is that, following a written commitment by each

Consultative Forum Member to respect the confidentiality rules of Fron-

tex, a reserved space for Consultative Forum members was created

on Frontex’ FOSS database in which relevant Frontex information is

placed on an on-going basis.

Otherwise, the Frontex Consultative Fo-

rum Secretariat

“acts as single contact point for the request and trans-

mission of information”

to and from Frontex.

It is clear, however, that

there cannot be full equivalence between the information received by

the Fundamental Rights Officer and the Consultative Forum members.

Another sensitive issue that was discussed at length between the Con-

sultative Forum and Frontex was upon whose initiative and on what is-

sues the Consultative Forum would work and to whom it would address

its opinions, recommendations and annual reports.

Working Methods. Title I, Article 1.

Frontex Regulation, Article 26a (3).

Working Methods, Title II.

Working Methods, Title I, Article 4.1.

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

As a result of these discussions, the Working Methods set out that the

Consultative Forum

“may act in the form of an opinion at the initiative

of the Management Board or the Executive Director” and “in the form of a

recommendation at the initiative of the Consultative Forum Members”.

The Consultative Forum

“adopts its opinions and recommendations by

consensus of its members, individual opinions and discussions of the

[…] Members […] remain confidential (so-called Chatham House Rule).

When consensus cannot be reached, the Chair may exceptionally pro-

ceed to voting by simple majority of the […] members where also mi-

nority positions will be recorded”.

As to the question of the addressees, the Working Methods indicate

that the Consultative Forum

“may only adopt and deliver opinions and

formulate recommendations to the Management Board and to the Ex-

ecutive Director”

and that those as well as the annual reports have to

“transmitted to the Executive Director and the Management Board”.

These provisions bar the Consultative Forum from addressing opinions

and recommendations to Member States or EU bodies and rule out

di-

rect

transmission of its opinions and recommendations to the media.

Access to Consultative Forum documents has to be granted by Fron-

tex, like by other EU Agencies.

Between its meetings, the Consultative Forum interacts on a regular

basis with the mentioned interlocutors, as well as with stakeholders

such as the European Commission, the European Parliament and oth-

Working Methods, Title I, Article 3.5, first paragraph (emphasis added).

Working Methods, Title I, Article 3.4.

Working Methods, Title I, Article 3.5 third and fourth paragraph (emphasis added).

Title I, Article 3.6 and Title II of the Working Methods.

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ANNUAL REPORT 2013

ers. There is, of course, also on-going interaction between the mem-

bers of the Consultative Forum.

Frontex may invite members of the Consultative Forum to visit a joint

operation as observers. The approval of the Member States concerned

with that activity is required, as well as the agreement of the Member

State that hosts the operation.

This means that Consultative Forum

members can visit joint operations, but not by unilateral decision, ran-

domly or at short notice. Nor is there a right to such visits.

In line with the provision that it

“shall have access to all information

concerning respect for fundamental rights, in relation to all the activi-

ties of the Agency”,

the Consultative Forum has asked to be invited

to send members on occasional visits to Frontex coordinated opera-

tions. The aim is not to monitor, but to be in a position to issue recom-

mendations on joint land or sea border operations that are based on

observations of how things work in practice and not only on the exam-

ination of rules, instructions and reports that are on paper.

Frontex Regulation, Article 13.

Frontex Regulation, Article 26a, paragraph 4.

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

What can the Consultative Forum not do?

◆

Handle individual complaints

It is outside the mandate of the Consultative Forum to deal with indi-

vidual complaints.

◆

Systematically assess fundamental rights compliance in all Fron-

tex activities

The Consultative Forum works on selected areas of Frontex activities

in the framework of jointly agreed annual work programmes, as well

as upon

ad hoc

requests by Frontex and further to decisions it makes

itself in the course of the year, as appropriate. The Consultative Fo-

rum does not have the resources to systematically screen all Fron-

tex activities and documents for fundamental rights issues and, even

less, compliance. The oversight by the European Parliament, national

parliaments, civil society and where necessary the judiciary, thus, re-

mains important.

Co-operation with the Fundamental Rights Officer and

with the Consultative Forum Secretariat

Cooperation with the Fundamental Rights Officer (FRO) is crucial for

the effectiveness and success of the work of the Consultative Forum,

because their respective roles are understood as complementary.

Contrary to the Consultative Forum, the Fundamental Rights Officer

has a clear monitoring role that covers all Frontex coordinated oper-

ations and activities. She receives all incident reports and individual

complaints and has unfettered access to documents and officials. She

can also observe operations

in situ

and participate in internal Frontex

briefings, debriefings and discussions.

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ANNUAL REPORT 2013

The Consultative Forum is glad to underline that close and trusting

cooperation was established in 2013 with the Fundamental Rights Of-

ficer who had been appointed in December 2012 and who

“report[s]

directly”

to the Consultative Forum.

The Fundamental Rights Officer does not only participate regularly in

the meetings of the Consultative Forum but is also in on-going con-

tact with its Chair, Vice-Chair and members, namely to exchange in-

formation and discuss issues.

For examlpe, the field visit of members of the Consultative Forum to

Joint Operation Poseidon (see chapter 3.2.2 of this report) was or-

ganised and carried out together with the Fundamental Rights Officer,

who accompanied the Consultative Forum delegation upon invitation.

The Consultative Forum wishes to underline that it is also very pleased

with the way in which the Frontex Consultative Forum Secretariat pro-

vides it with efficient administrative support.

Frontex Regulation, Article 26a (3).

In line with the Working Methods, Title II, Article 4.1.

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WORK DONE IN 2013

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ANNUAL REPORT 2013

The starting point for the Consultative Forum’s work was a mapping

of Frontex activities in which major fundamental rights concerns may

arise. That assessment was done in cooperation with the Fundamental

Rights Officer, Frontex staff and the Management Board. On the basis

of this, the Consultative Forum decided to work on selected issues in the

fields of strategic planning, joint operations, risk analysis and training.

The Consultative Forum’s Work Programme for 2013

was adopted

on 31 January 2013 following its presentation to the Frontex Manage-

ment Board.

3.1. Strategic Planning and Frontex Programme

of Work 2014

Frontex submitted its draft Programme of Work 2014 to the Consul-

tative Forum for comment. The Consultative Forum responded with a

set of general and specific observations and recommendations. The

final version of the Programme of Work 2014 reflected the Consulta-

tive Forum’s advice in a number of aspects.

The Consultative Forum’s comments on the Programme of Work for

the year 2014 can also be seen to a considerable extent as advice for

Frontex’ Multi-Annual Strategy 2013-16.

The gist of the comments and recommendations of the Consultative

Forum on the draft Programme of Work was that it contained only a

few activities relating to fundamental rights and that those appeared

as separate and stand-alone activities, rather than as an integral part

Frontex Consultative Forum, “Work Programme 2013”, 31 January 2013, available at: <http://frontex.europa.

eu/assets/Partners/Consultative_Forum_files/CF_work_programme.pdf> [accessed 4 March 2014].

The Programme of Work of Frontex had two annexes. Annex I is “restricted” and contains operational

plans; the Consultative Forum had no access to this annex (and did not ask for it). Annex II is the training

plan; it was not yet ready by the time the Consultative Forum was given the draft Programme of Work for

comment.

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

of Frontex coordinated joint operations. The Consultative Forum be-

lieves that the Frontex Programmes of Work should have a genuine

fundamental rights dimension.

For example, in 2014 the implementation of the European Border Sur-

veillance System (Eurosur) will be a priority for Frontex. The Eurosur

Regulation contains a number of fundamental rights safeguards, such

as in its Article 2 (4):

“Member States and the Agency shall comply

with fundamental rights, in particular the principles of non-refoulement

and respect for human dignity and data protection requirements, when

applying this Regulation. They shall give priority to the special needs

of children, unaccompanied minors, victims of human trafficking, per-

sons in need of urgent medical assistance, persons in need of inter-

national protection, persons in distress at sea and other persons in a

particularly vulnerable situation”.

The Programme of Work does not

elaborate on how this provision will be implemented.

Article 2 (4) of Regulation (EU) Nr 1052/2013 of 22 Oct 2013 on the establishment of a European Border

Surveillance System (Eurosur), OJ L 295, p. 11.

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ANNUAL REPORT 2013

Main recommendations of the Consultative Forum:

1. The report of the Parliamentary Assembly of the Council of Europe (PACE)

on Frontex suggests that Frontex can become a beacon for the respect

of fundamental rights in the course of border guard operations in Europe.

The inquiry of the European Ombudsman

insists on the public interest

in Frontex accepting such a role. This is why the Consultative Forum rec-

ommends that the Agency’s Programmes of Work treat the respect of fun-

damental rights not as one chapter among many but as a priority. The

consideration for the protection of fundamental rights should be main-

streamed in the entire range of Frontex activities.

Outcomes:

Frontex staff have, in general, become more sensitive to fundamental

rights issues. Furthermore, the Programme of Work 2014 envisages the

harmonisation of the education and training of European Border Guards

within all stages of their careers and the integration of fundamental rights

into the training design as underpinning principles.

However, the Programme of Work does not yet sufficiently reflect that the

protection of fundamental rights is considered a

priority

in all activities

of the Agency.

2. Concerning its future work in implementing the Eurosur Regulation, Fron-

tex should express the intention to coordinate cooperation with Member

States with a direct view to the saving of the lives of migrants, which is an

explicit objective of the Regulation.

Outcomes:

This recommendation was not taken on in the Agency’s Programme of Work

2014.

“Frontex: human rights responsibilities”, Report of the Parliamentary Assembly of the Council

of Europe (PACE), Committee on Migration, Refugees and Displaced Persons, 8 April 2013

(http://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=19547&Language=EN); Resolution

(http://assembly.coe.int/ASP/Doc/Xref ViewPDF.asp?FileID=19719&Language=EN);

Recommendation (http://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=19721&

Language=EN).

European Ombudsman own-initiative inquiry OI/5/2012/BEH-MHZ concerning the European

Agency for the Management of Operational Cooperation at the External Borders of the Member

States of the European Union (Frontex), case opened on 6 March 2012. All related documents

available at: http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/11316/html.

bookmark

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

3. Frontex should be careful to refrain from any generalisations and implied

value judgments such as by referring to ‘illegal” migration.

Outcomes:

Assessments concerning the accession of individual states to the Schen-

gen area and its potential impact on migration routes were indeed re-

moved from the text of the Programme of Work 2014. However, the final

text does still use references to ‘illegal’ migration; the argument of Fron-

tex being that this is the official EU terminology. Also, migrants are still

portrayed as people who use the asylum system to enter EU territory.

4. When developing effective protection measures for vulnerable persons

such as children and victims of trafficking, Frontex should consider con-

sulting civil society organisations and other stakeholders working in that

environment.

Outcomes:

Frontex did not follow this recommendation, arguing that this issue was

rather in the competence of the Member States.

5. Frontex should incorporate dialogue with the Consultative Forum as an in-

tegral part in its annual planning cycle and should allow the Consultative

Forum sufficient time for quality input.

Outcomes:

The Consultative Forum appreciates that the Frontex Programme of Work

for 2014 contains clear references to the cooperation with the Consulta-

tive Forum, including the exchange of relevant information and the need

to consult it on strategic matters.

3132

http://assembly.coe.int/ASP/XRef/X2H-DW-XSL.asp?fileid=19719&lang=en

European Ombudsman own-initiative inquiry OI/5/2012/BEH-MHZ concerning the European Agency for the

Management of Operational Cooperation at the External Borders of the Member States of the European

Union (Frontex), case opened on 6 March 2012. All related documents available at: http://www.ombudsman.

europa.eu/en/cases/correspondence.faces/en/11316/html.bookmark

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ANNUAL REPORT 2013

3.2. Operations

3.2.1. Code of Conduct for Joint Return Operations (CoC JROs)

The Frontex Regulation, in its Article 9 (1a), requires Frontex to develop

a code of conduct for the return of irregularly present third-country na-

tionals which is to be applied during all joint return operations coor-

dinated by the Agency. The CoC JROs

sets out common principles

and main procedures to be observed in such operations and comple-

ments the general provisions of the 2011 Code of Conduct for all per-

sons participating in Frontex activities (CoC).

The Frontex Regulation calls expressly for consultation with the Con-

sultative Forum on the Codes of Conduct. The Consultative Forum was

indeed consulted from a very early stage of the drafting process and

provided recommendations to Frontex throughout the entire process.

The Consultative Forum welcomes the open and inclusive process in

which the CoC JROs was developed.

Code of Conduct for Joint Return Operations coordinated by Frontex, http://frontex.europa.eu/assets/

Publications/General/Code_of_Conduct_for_Joint_Return_Operations.pdf

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

Numerous recommendations of the Consultative Forum relating

inter alia

to the use of force and coercive measures, to the health assessment, to

the monitoring of return flights and to the mechanism to file complaints

by returnees were considered in the final version of the CoC JROs.

The CoC JROs

came into force on 8 October 2013. It will be part of all

operational guidelines and will be distributed to deployed officers ahead

of the Joint Return Operations. Already existing norms and guidelines

(such as the Council of Europe’s Twenty Guidelines on Forced Re-

turn

) which are not included in the CoC JROs will be provided to de-

ployed staff in an additional information sheet.

There is no doubt that the CoC JROs is a positive step towards the es-

tablishment of clear common rules and procedures that should govern

forced return operations coordinated by Frontex. It explicitly refers to

most of the specific fundamental rights norms that are relevant. It also

foresees the possibility for returnees to lodge complaints, which is an

important achievement.

However, in the view of the Consultative Forum, the CoC JROs does

not completely reflect the desired highest level of fundamental rights

protection. Specifically, while its purpose is to provide clear operational

guidance to deployed staff, the CoC JROs does not provide sufficiently

detailed and concrete provisions on several essential issues.

For example, concerning the already mentioned possibility for the re-

turnee to lodge a complaint, the CoC JROs remains unclear as to when

and how complaints can be made in practice, by whom and how they

will be processed. These questions are of paramount importance.

The CoC JROs was adopted by Decision of the Frontex Executive Director No. 2013/67 of 7 October 2013.

Council of Europe Twenty Guidelines on Forced Return, September 2005: http://www.coe.int/t/dg3/migration/

archives/Source/MalagaRegConf/20_Guidelines_Forced_Return_en.pdf

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ANNUAL REPORT 2013

Also, the Code does not require individual identification of the escorts.

It merely requires their distinction from the returnees. The Consultative

Forum considers this insufficient in light of the applicable standards in

international human rights law, including the Council of Europe’s Twenty

Guidelines on Forced Return.

The identification of individual officers

is a prerequisite for the establishment of accountability.

Another concern for the Consultative Forum is that the rule on the

medical assessment of returnees prior to the flights does not render

‘fit to travel’ certificates mandatory for all returnees. Who will decide

for which returnees a certificate will be required and for whom not and

according to which criteria?

The provision on reporting back to Frontex by independent monitors

remains weak in the CoC JROs, as the decision to inform Frontex is

left to the discretion of the Member States to whom the monitors be-

long. The Consultative Forum stresses that the reports of independ-

ent monitors and the follow-up by Frontex with the Member States on

potential complaints are crucial for achieving accountability and pro-

viding access to effective remedy.

The monitors’ reports are impor-

tant for the evaluation of return operations by Frontex also when there

were no complaints made, in order to constantly improve the process.

See Guideline 18.4 and its explanation: “According to this paragraph, the members of the escort should

be identifiable. For instance, the members of the escort could present themselves by name or they could

have their name or a number indicated on a badge“.

Art 47 of the EU Charter of Fundamental Rights.

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Recommendations made by the Consultative Forum:

1. The CoC JROs must be brought to the attention of Member States and

other stakeholders and should become part of standard training for offic-

ers involved in JROs as well as for monitors.

Outcomes:

This recommendation is reflected in Article 15 of the CoC JROs:

“All par-

ticipants in the JRO, prior to their engagement in the operation, are re-

quired to get acquainted with the content of this Code and fundamental

rights through appropriate training”.

2. Independent monitors should be present at all Frontex JROs.

Outcomes:

This recommendation is reflected in Article 13 (2) of the CoC JROs:

“[…]

MSs taking part in a JRO are required to ensure that they have in place

an effective forced return monitoring system. Failing to meet this condition

could ultimately lead to postponement or cancellation of the participation

of the respective MS”.

Frontex has announced that it is ready to bear the costs of inde-

pendent monitors on JROs and that it shares the aim that virtually

all JROs should be subject to independent monitoring and that the

monitors are to be involved in briefings and debriefings on joint re-

turn operations.

3. Frontex should receive in a timely fashion and in full all the reports made

by independent monitors.

Outcomes:

This recommendation is reflected in Article 14 (6) of the CoC JROs:

“Un-

less contrary to national rules and procedures, the report(s) of the moni-

tors is (are) sent to Frontex in a timely manner after the end of a JRO and

their observations are included in the Final Return Operation Report to be

delivered to Frontex”.

4. Effective measures need to be taken to enable returnees to exercise their

right to lodge complaints. Returnees must be informed in a language they

understand about this right. It must be clarified who receives complaints

and who handles them and according to which procedure.

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Outcomes:

This recommendation is partly reflected in two provisions of the CoC JROs:

Article 5 (2):

“The competent authorities of the MSs are expected to give

sufficient and clear information to the returnees about the JRO, includ-

ing the possibility to lodge a complaint concerning alleged ill-treatment

during the operation”.

Article 17 (4):

“The returnee may request information and should be in-

formed of the measures taken and his/her possible right to compensation”.

5. All escorts on board should be individually identifiable by name or identi-

fication number.

Outcomes:

This recommendation is partly reflected in Article 9 of the CoC JROs:

“The participants should be identifiable and fully distinguishable from re-

turnees. For this purpose official vests, armbands, badges or some other

distinguishing signs are required to be worn while on duty”.

6. Any use of coercive measures must be subjected to the principle of strict

necessity and proportionality and should be documented and reported to

Frontex.

Outcomes:

The recommendations is reflected in three provisions of the CoC JROs:

Article 6 (1):

“Coercive measures may be used only when strictly necessary

on returnees who refuse or resist removal, or in response to an immediate

and serious risk of the returnee escaping, causing injury to herself/himself

or to a third party, or causing damage to property (2). The use of coercive

measures must be proportional, not exceeding reasonable force, and with

due respect to the returnee’s rights, dignity and his/her physical integrity”.

Article 6 (4):

“The OMS and Frontex decide on a list of authorised restraints

in advance of the JRO. This list must be distributed to the relevant PMSs

prior to the JRO. The use of sedatives to facilitate the removal is forbid-

den without prejudice to emergency measures to ensure flight security”.

Article 16: In case of illegal use of coercive measures,

“any participant in

the JRO who has reasons to believe that a violation of this Code or of fun-

damental rights has occurred is required to report it to Frontex via the ap-

propriate channels, for example via the Frontex Serious Incident Reporting

system”.

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7. The returnees should be free of handcuffs or other restraining measures

when handed over. The CoC JROs should be shared with the receiving

countries.

Outcomes:

This recommendation is reflected in two provisions of the CoC JROs:

Article 15 (2):

“Frontex will ensure that the content of this Code is com-

municated to the national authorities of the countries of return”;

Article 6 (1):

“Coercive measures may be used only when strictly nec-

essary on returnees who refuse or resist removal, or in response to an

immediate and serious risk of the returnee escaping, causing injury to

herself/himself or to a third party, or causing damage to property. (2):

The use of coercive measures must be proportional, not exceeding rea-

sonable force, and with due respect to the returnee’s rights, dignity and

his/her physical integrity”.

8. Clear criteria for the termination or suspension of a JRO in line with Arti-

cle 3.1 (a) should be developed.

Outcomes:

Frontex finally decided not to follow this recommendation because, it is ar-

gued, the short duration of a JRO renders the very idea of terminating or

suspending an operation that has started by and large unrealistic.

9. The CoC JROs should include gender specific provisions reflecting the

different needs and vulnerabilities of men and women in the return pro-

cess (e.g. handling of female returnees by female officers).

Outcomes:

Article 4 of the CoC JROs sets out general principles on the respect for

fundamental rights in the course of JRO and more detailed rules can be

defined in the Best Practices.

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Frontex coordinated return operations and presence

of monitors (39 in total) in 2013:

15.4%

No e ective

monitoring system

35.9%

E ective monitoring;

monitors not present

in ﬂights

48.7%

E ective monitoring;

monitors present

in ﬂights

Figures are provided by Frontex. Frontex categorisation is in accordance to the FRA’s determination

of effective forced return monitoring systems in the EU. It takes into account the number of joint return

operations coordinated by Frontex where there was a possibility of having an effective monitoring system,

either by the organising or participating Member States. In this category, it is differentiated between flights

effectively with monitors and those others where there were no monitors during the operation (despite

possibilities for them being there). On the other hand, it points out the number of return operations where

there was no possibility of having a monitoring system. According to the FRA’s Annual Report 2013 the

following Member States have a monitoring system in place: Austria, Belgium, Bulgaria, Cyprus, the Czech

Republic, Denmark, Estonia, Germany, Hungary, Malta, Latvia, Lithuania, Luxembourg, the Netherlands,

Poland, Romania, Slovakia and the United Kingdom. Member States that do not have a monitoring system in

place are: Finland, France, Greece, Italy, Portugal, Slovenia, Sweden, and Spain. See FRA, “Fundamental

Rights: challenges and achievements in 2013 – Annual Report 2013” June 2014, http://fra.europa.eu/en/

publication/2014/fundamental-rights-challenges-and-achievements-2013 .

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3.2.2. Joint sea / land border operations

The Consultative Forum wishes to thank the Greek and Bulgarian au-

thorities for having agreed to a visit by Consultative Forum members

to Joint Operation Poseidon at the Greek-Turkish sea / land borders

and at the Bulgarian-Turkish land border in July 2013. That Joint Op-

eration was selected because it is one of the main operations coor-

dinated by Frontex and because it is at the forefront of the increasing

number of Syrians seeking protection in Europe.

Frontex Joint Operations are undertaken at the request of the Host

Member State. The authorities of the Host Member State remain re-

sponsible for the border operations, including the granting and deny-

ing of access to the territory and the provision of protection to those in

need. Frontex coordinates and supplies equipment and deploys guest

officers, interpreters and other experts from other Member States, as

well as providing training for national border guards and the deployed

guest officers.

The delegation of the Consultative Forum consisted of UNHCR and

CCME and included their members operating in Greece. The visit was

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ANNUAL REPORT 2013

planned and carried out together with the Fundamental Rights Officer,

to whom the Consultative Forum also expresses its gratitude. While

that was not its primary purpose, this field visit provided an opportunity

to explain the role of the Consultative Forum and of the Fundamental

Rights Officer to local stakeholders.

The following locations were visited and/or meetings were held with:

UNHCR Office in Athens, Greece; Frontex Operational Office (FOO)

in Piraeus, Greece; Police Headquarters in Alexandroupolis, Greece,

including participation in an evening patrol; Police station / Regional

Coordination Centre in Orestiada, Greece (Evros region); First Recep-

tion Centre in Fylakio, Greece (Evros region); Administrative Detention

Centre in Lyubimetz, Bulgaria; Border Crossing Point in Captain An-

dreevo, Bulgaria; Meeting with Frontex Operations Coordinator and

Frontex Guest Officers, border guards deployed by Member States to

take part in Frontex operations in Mytilini (Lesvos island, Greece); Lo-

cal Coordination Centre in Mytilini (Lesvos island, Greece); attendance

of debriefing interviews with asylum-seekers at Police Headquarters in

Myitilini (Lesvos island, Greece); meeting with Amnesty International’s

Europe and International Secretariat in Lesvos, Greece; Police head-

quarters in Samos island, Greece; Coast Guard Headquarters in Sa-

mos island, Greece; Detention Centre in Samos island, Greece.

According to the agreed terms of reference for the visit, the delegation

looked specifically into:

◆

Implementation of the principle of

non-refoulement

Identification and protection of members of vulnerable groups.

The Consultative Forum delegation reported on the visit and findings

at the meeting of the Consultative Forum in October 2013. The obser-

vations made on the ground during such visits inform also the recom-

mendations of the Consultative Forum on various issues of substance

and procedure (e.g. training, risk analysis).

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Based on the report, the Consultative Forum started to identify con-

cerns and elaborate recommendations which the Consultative Forum

seeks to convey to and discuss with Frontex Executive Director and

Management Board of Frontex in 2014.

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3.3. Risk analysis

Risk Analysis provides the basis for the decisions on Frontex coordi-

nated joint operations. The Risk Analysis Unit (RAU) provides analy-

sis at a strategic and operational level. Based on the strategic analysis,

RAU issues recommendations for joint operations to be launched or

continued. Risk anaylsys recommendations also informs the opera-

tional plans of all joint operations. Evaluations of joint operations then

feed into further analysis of risks.

RAU collates information from the Member States, EU bodies, inter-

national organisations and the media with the aim of creating a pic-

ture of the situation at the EU’s external borders both with regard to

cross-border criminality and migratory trends. In the view of the Con-

sultative Forum this information does not sufficiently cover the funda-

mental rights situation in countries of transit and critical political and

other developments in countries of origin and transit that might trigger

new migration flows.

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One key element of Frontex risk analysis is the Annual Risk Analysis

Report, which is a forecast looking 18 months ahead and is updated

twice a year. Based on it, Frontex identifies the priorities for support to

Member States. Specific issues are analysed in tailored risk assess-

ment reports. Based on the operational evaluations further risk anal-

ysis is carried out.

Trends and situational analysis are continuously updated. It is impor-

tant to mention that Frontex risk analysis not only serves internal pur-

poses but also informs decision makers at EU and national levels.

The Frontex Fundamental Rights Strategy underlines the need to pay

attention to the particular situation of persons seeking international

protection and to the particular circumstances of vulnerable individu-

als or groups in need of protection or special care. The Fundamental

Rights Strategy also foresees an impact assessment with regard to fun-

damental rights when proposing or preparing operational responses.

The consideration of the fundamental rights situation in third countries

when collecting data to analyse and assess risk was one of the initial

proposals that the Consultative Forum offered. The Consultative Fo-

rum member organisations have considerable information about this

and could provide such information directly to RAU. The accessibility

of Frontex’ risk analysis related work posed an obstacle to providing

such hands-on and tailored recommendations.

Screening is a mandatory part of the registration process and seeks to

identify the nationality of the intercepted migrants. It is mandatory for

the migrant and done as a rule by officers of the Host Member State,

who can be assisted by Guest Officers.

Debriefing, by contrast, is voluntary for the migrant and seeks to pro-

duce intelligence about country of origin, reasons for travelling, routes

and involvement and

modus operandi

of facilitators. Debriefings are

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done by national border guards with or without experts deployed by

Frontex, during interviews with the migrants that are distinct from the

screening interviews. Debriefings provide RAU with intelligence that

is essential for its work. This is why one of RAU’s key activities is the

preparation of debriefings.

RAU assured the Consultative Forum that debriefing interviews are only

conducted with the consent of the migrant. The collected information is

processed and then turned into intelligence for further analysis that is

used for preparing decisions on joint operations. According to RAU’s

statements in meetings with the Consultative Forum, neither personal-

ised information about the interviewees nor any figures relating to their

individual nationality, gender and/or age are recorded.

This poses the question of if (and how) information concerning migrants’

protection needs is recorded and processed. Fundamental rights vio-

lations which may have occurred during travel, including trafficking, or

other protection relevant information can come up in debriefings. For

such cases, appropriate follow-up procedures, including referral mech-

anisms, need to be established.

Guidelines for Debriefing Activities were developed by RAU in 2013.

The Consultative Forum could only provide some ad hoc input on the

spot at a joint meeting. The finalised Guidelines are now part of Oper-

ational Plans. Whilst feedback already given is partly reflected in the

Debriefing Guidelines, the Consultative Forum still has some concerns

regarding the debriefing procedure.

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Recommendations of the Consultative Forum

1. Frontex should ensure that all debriefers deployed by Member States are

able to identify cases where fundamental rights violations may have oc-

curred during travel or upon arrival, to handle vulnerable and traumatised

persons accordingly and to refer such persons to the relevant national au-

thorities under the relevant referral procedures.

2. Frontex should record figures of referrals to national mechanisms.

Outcomes:

Frontex has taken these recommendations into account for the present

version of the Debriefing Guidelines with regard to several details. The

Guidelines foresee:

◆

debriefers receiving general information on the human rights situation

in the countries of origin and of transit prior to their assignment;

◆

priority being given to address the basic needs of the migrants and to

the provision of medical assistance;

◆

the debriefing being an opportunity for asylum claims to be made and

alleged instances of fundamental rights violations to be reported;

◆

debriefing procedures duly taking into account gender specifications.

The recording of numbers of referrals is still to be regulated.

3. Frontex should insist that interviewees are systematically informed in a lan-

guage they understand on the role of the debriefer, the specific purpose

of the debriefings and the possibilities of referral for persons who seek in-

ternational protection.

Outcomes:

Frontex has taken this on. Furthermore, according to the Guidelines, in-

terpreters must be clearly instructed to provide neutral, accurate and full

interpretation.

4. Reporting of fundamental rights breaches should not be dependent on

whether or not migrants lodge official complaints and should be adequately

investigated in any event.

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5. In cases where migrants complain about fundamental rights violations

that have allegedly occurred under the jurisdiction a Member State, Fron-

tex should follow-up with the respective Member State under procedures

and mechanisms that need to be clearly defined.

Outcomes:

These issues are still to be discussed. The Debriefing Guidelines, however,

regulate that the migrant should not face negative legal consequences with

regard to his or her immigration process as a result of the debriefing.

6. Frontex should ensure that European data protection standards are ap-

plied to all personal data collected concerning migrants, if Frontex starts

processing the personal data of migrants.

Outcomes:

The Consultative Forum is still discussing with Frontex the details of this

issue.

7. The Debriefing Guidelines should be further developed in order to ensure

that disclosing information about smugglers, other migrants, etc does not

put the interviewees at risk of retaliation.

8. Migrants should not be subjected to several interviews for different pur-

poses, as this might be confusing and put additional strain on them.

9. The development of guidelines relating to screening procedures should be

a priority for 2014.

10. An assessment is needed of the use that is made of the Debriefing Guide-

lines on the ground.

Outcomes:

The Consultative Forum will discuss these issues with Frontex in the con-

text of the evaluation and further development of the Debriefing Guidelines.

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3.4. Training

3.4.1. Common Core Curriculum

The Common Core Curriculum is the framework developed by Fron-

tex to standardise a set of skills and knowledge for basic-level border

guard training in the EU. Modules include topics such as detection

of false documents, stolen cars, human rights, international law and

leadership. All Frontex training tools and activities build on the Com-

mon Core Curriculum. The Common Core Curriculum is anchored in

the Frontex Regulation and its use is mandatory for the Member States.

The Frontex Regulation calls for the Consultative Forum to work with

Frontex

“on the further development and implementation”

of the Com-

mon Core Curriculum.

A Consultative Forum member participated in the Interoperability As-

sessment Programme, which is seeking to build an assessment tool

of the national implementation of the Common Core Curriculum. The

Article 26a (2), second paragraph.

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Consultative Forum stands ready to participate in any further work on

the Common Core Curriculum.

3.4.2. Training of European Border Guard Teams (EBGT)

The EBGT Induction Training is preparatory training prior to the oper-

ational deployment of officers.

Consultative Forum members participated in two five-day sessions and

reviewed the structure, methodology and content of the training, the

training materials used, as well as the composition and profiles of the

pool of 16 trainers. They also looked into the selection of trainees.

The Consultative Forum members were satisfied with the structure

of the training, which was built around three core issues:

◆

basic knowledge about EU institutions, Frontex’ organisational struc-

ture, the Frontex Regulation and Code of Conduct (CoC);

◆

basic knowledge about fundamental rights and access to inter-

national protection (including asylum, smuggling and trafficking);

◆

practical border guarding issues covering the operational plan.

The methodology was a blend of group exercises, presentations in-

cluding the use of visual media as well as group discussions. Practical

exercises helped the trainees link theory with the practical application

of legal frameworks in different operational scenarios. The trainers had

a non-judgmental attitude and were able to give practical and relevant

examples from the field.

As to content, fundamental rights were explained very clearly and the

emphasis was placed on the border guard’s role to “protect the rights

of those who are crossing the border”, including the prohibition of torture

or degrading treatment, freedom from slavery, freedom of movement

and the limits to detention, the right to a fair hearing, the

non-refoule-

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ment

principle as well as the difference between an asylum seeker and

persons in need of other forms of international protection.

The trainers were insistent with regard to the obligation to give infor-

mation about national asylum legislation and procedure in a language

the person can understand and to take care of their immediate needs.

The challenges that can be posed by different cultural references were

pointed out.

The trainers drew attention to the special needs of female migrants.

The latter issue was discussed during the session on human rights

protection and reiterated by concrete examples as well as questions

to the participants throughout the training.

In the session on trafficking, the crucial role of border guards in the

identification of victims of trafficking was highlighted. With regard to

child victims of trafficking, the trainers underlined the need to involve

child-care organisations and that the child’s best interests must always

be the primary consideration.

The initial selection of trainees is carried out by the Member States on

the basis of profile recommendations issued by Frontex. Participants

had different levels of experience and expectations. This diversity of pro-

files made it difficult for the trainers to match individual expectations.

Some trainees felt unchallenged while others felt over challenged. Also

the level of knowledge of English varied significantly between trainees.

A final test is organised at the end of the each training session. How-

ever, trainees will be deployed even if they fail the final test.

It has been observed that a lot of time may elapse between the Induc-

tion Training and the actual deployment of an officer.

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Recommendations of the Consultative Forum

1. Frontex should help Member States improve the selection criteria for na-

tional officers to be designated for the EBGT pool (profile recommenda-

tions) as well as the information provided to them on their future tasks with

Frontex.

Outcomes:

The Frontex Training Unit has informed the Consultative Forum that

they have been working on the further development of the EBGT mem-

bers’ profiles and on the training with regard to specific job-competences

(e.g. the Border Surveillance Officer Sea / Land).

2. All officers in the EBGT pool should receive an Induction Training prior to

deployment. All trainers of trainers should receive specific training on the

respect of fundamental rights in border guard practice.

Outcomes:

Significant changes to the EBGT Induction Training have been initiated in

the second semester of 2013 and will have to be implemented in 2014. It

is foreseen that all officers who participate in the EBGT pool will receive

Induction Training and that part of this training covers respect for funda-

mental rights in practice.

3. The Induction Training should better prepare trainees for the reality in the

field, where border guards can be confronted with situations dramatically

contrasting with their regular routine at home (e.g. massive influx, humani-

tarian crisis). Practical exercises can help them reflect on how, in practice,

they can promote fundamental rights, including by identifying the special

assistance needed by vulnerable migrants. Video footage and testimonies

from both migrants and border guards (former trainees) should be used,

including material that is critical of Frontex coordinated operations, such

as films which show an operation from the migrant’s perspective.

Outcomes:

More practical training for border guards is foreseen in the amended train-

ing programmes.

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4. Outside experts (such as asylum experts or experts from NGOs deployed

in the field) should be invited to contribute to the sessions of the Induction

Training that relate to fundamental rights.

Outcomes:

The Frontex Training Unit has expressed their openness to this proposal.

5. Trainees who fail the test at the end of the Induction Training should not

be deployed.

6. Induction Training should not be held more than six months before deploy-

ment. If participation in such training dates back more than six months from

moment of deployment, officers in the EBGT pool should receive manda-

tory refresher training prior to deployment.

7. Refresher training should be delivered to all officers in the EBGT pool at

regular intervals. Such training should have a large interactive component

in which the practical experiences made by the trainees during their de-

ployment are used for the benefit of both trainees and trainers.

8. A multilingual glossary of the expressions used in Frontex coordinated joint

operations should be given to trainers and trainees to ensure linguistic con-

sistency across the different training sessions and serve as an aide-mem-

oire for trainees. This would also help avoid inapproriate terminology.

9. Because it is essential that Frontex instructions are well understood dur-

ing operations, mandatory English courses should be given to those of-

ficers of the EBGT pool whose tests at the end of training show linguistic

problems.

Outcomes:

These recommendations address issues that are partly within Member

States’ competences. The Consultative Forum is still discussing with the

Frontex Training Unit which of these recommendations can be taken on

in further training programmes.

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3.5. Recommendations of the European Ombudsman

“In view of […] the considerable interest taken by civil society in the

EU’s management of external borders, including its fundamental rights

dimension”

European Ombudsman Nikiforos Diamandouros opened

in March 2012 an own-initiative inquiry into the way in which Frontex

implements Article 26 (a) of the Frontex Regulation.

The procedure began with a set of detailed questions which the Om-

budsman addressed to Frontex and to which Frontex replied on 17 May

2012. The Consultative Forum was not at that time involved in this cor-

respondence (as it had not yet been created).

On 9 April 2013, the European Ombudsman presented a draft rec-

ommendation consisting of 18 action points (numbered A to M) to

the Executive Director of Frontex and asked to receive

“a detailed

opinion”

back from Frontex by 31 July 2013. As indicated by Mr Di-

amandouros

“the detailed opinion could consist of the acceptance

of |his] draft recommendation and a description how it has been

implemented”.

The European Ombudsman’s recommendations touched upon six ar-

eas: Frontex Fundamental Rights Strategy, its Action Plan to implement

the Strategy, Frontex Codes of Conduct, the possibility to terminate

or suspend operations, the Consultative Forum and the Fundamen-

tal Rights Officer.

In a letter dated 7 June 2013, the Executive Director shared the draft

response of Frontex to the European Ombudsman with the Consul-

tative Forum and asked for comments. The comments were sent to

Frontex on 21 June 2013. The final answer of Frontex was sent to

the European Ombudsman on 25 June 2013. On 12 November 2013,

the European Ombudsman closed its own-initiative inquiry, acknowl-

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edging its overall satisfaction with Frontex’ efforts, mentioning that

Frontex has adequately addressed the 12 recommendations of the

European Ombudsman.

Frontex sent its 13-page response to the European Ombudsman by

the requested deadline.

Frontex answer on recommendation of the EO to Frontex on Fundamental Rights, 25 June 2013, EO inquiry

OI/5/2012/BEH-MHZ, page 13.

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A number of the “comments” made by the Consultative Forum on 21 June

2013 with respect to the draft response of Frontex to the European Ombuds-

man could be seen as recommendations. The format of the “comments” and

the number of issues addressed make it slightly difficult to follow, in this case

the format of the other chapters of this annual report where the recommenda-

tions and the outcomes are systematically compared. It is therefore sufficient

to indicate that the Consultative Forum was generally satisfied with the offi-

cial reply sent by Frontex. There are, however, two major recommendations

which the Consultative Forum has made in line with, or building on, the rec-

ommendations of the European Ombudsman which still need implementation.

Recommendations of the Consultative Forum:

1. The “effective

mechanism to monitor the respect for fundamental rights in

all the activities of the Agency”,

which Frontex is required to put in place,

pursuant to the Frontex Regulation, should comprise a procedure for act-

ing upon allegations of serious fundamental rights infringements.

Outcomes:

The setting up of an effective monitoring mechanism was put on the work

programmes for 2014 of both the Fundamental Rights Officer and Frontex.

Consistently the Consultative Forum will contribute.

2. The said fundamental rights monitoring mechanism should also offer an

effective complaints mechanism for individuals who consider that their fun-

damental rights have been violated in the context of a Frontex coordinated

operation.

Outcomes:

In its response to the European Ombudsman Frontex did not accept this

recommendation arguing that

“the competences of the Fundamental Rights

Officer, as defined in the Frontex Regulation, do not include resolving ex-

ternal and individual complaints as she has no executive powers as such.

For this purpose, other institutions are competent (e.g. national and EU

courts)”.

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CONCLUSIONS FOR 2013

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The EU’s border policies and their impact on the human rights

of migrants have been critically discussed in several reports pub-

lished in 2013.

There is consensus in the Consultative Forum

that Frontex’ role in the context of border management has devel-

oped far beyond mere coordination of Member States’ activities.

In doing so, as an EU Agency, Frontex is bound by the EU Char-

ter of Fundamental Rights and by the rules of international hu-

man rights law, which are part of

jus cogens

or international

customary law (such as the

non-refoulement

principle) or are

contained in EU law, including by reference to international hu-

man rights and refugee law instruments. Frontex has to take into

consideration the rights and obligations enshrined in the Euro-

pean Convention on Human Rights and the jurisprudence of the

European Court of Human Rights, which have been accepted as

legally binding by all the EU member states and constitute gen-

eral principles of EU law.

See Pro-Asyl,

Pushed back. Systematic human rights violations against refugees in the Aegean Sea and at

the Greek-Turkish land border,

November 2013, available at: <http://www.proasyl.de/fileadmin/fm-dam/l_

EU_Fluechtlingspolitik/proasyl_pushed_back_24.01.14_a4.pdf>; Amnesty International,

Frontier Europe:

Human rights abuses on Greece’s border with Turkey,

July 2013 (Index: EUR 25/008/2013), available at:

<http://www.amnesty.org/en/library/asset/EUR25/008/2013/en/d93b63ac-6c5d-4d0d-bd9f-ce2774c84ce7/

eur250082013en.pdf>; United Nations, General Assembly, Report of the Special Rapporteur on the human

rights of migrants, François Crépeau: “Regional study: management of the external borders of the European

Union and its impact on the human rights of migrants”, Doc. A/HRC/23/46, 24 April 2013, available at:

<http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.46_en.pdf>;

Council of Europe, Parliamentary Assembly, Resolution 1932 (2013).

Frontex: human rights responsibilities,

April 2013, available at: <http://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=19719&Language=EN>;

European Ombudsman, “Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/

BEH-MHZ concerning Frontex”, supra note 10; Recommendations of the European Ombudsman – www.

ombudsman.europa.eu/en/cases/draftrecommendation.faces/en/49794/html.bookmark; EU Fundamental

Rights Agency (2013): Fundamental Rights at Europe’s southern sea borders - accessible at http://fra.

europa.eu/en/publication/2013/fundamental-rights-europes-southern-sea-borders.

Article 6 of the Treaty of the European Union.

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

This means that Frontex must ensure it is not complicit in any act that

would violate human rights.

To avoid this risk, the Frontex Regula-

tion requires the Frontex Executive Director to

“suspend or terminate,

in whole or in part, joint operations” if human rights violations occur

and “if he/she considers that [they] are of a serious nature or likely to

persist”.

In the case of joint return operations, Frontex is required to

refuse funding of a certain operation if such violations occur.

However, in spite of the guidance provided by the current legal frame-

work, the responsibilities remain to some extent unclear in practice

when it comes to interpreting the rules. Frontex has in place various

procedures on reporting and the conduct of officers. It is commonly

agreed that the actors need to respect the rules and obligations that

arise from the EU Charter of Fundamental Rights, the Schengen Bor-

ders Code, international obligations and other legal instruments. The

question remains as to how fundamental rights are effectively imple-

mented in daily practice and mainstreamed into the procedures within

joint operations. The currently established monitoring mechanism un-

der the lead of the Frontex Fundamental Rights Officer could improve

this and can contribute to the definition of effective measures in cases

of non-compliance.

The Consultative Forum relies on Frontex’ management to consider

the recommendations and to change certain processes to enhance

the fundamental rights compliance. The Consultative Forum in close

According to Article 41 of the

UN Draft Articles of the International Law Commission on the international

responsibility of international organisations for wrongful acts under international law,

which should be used

to assess the international liability of the EU and that of its agencies also under the Charter, the EU may

be responsible if it or one of its bodies “aids or assist a State or another international organisation in the

commission of an internationally wrongful act by the State or the latter organisation”, if it “does so with

knowledge of the circumstances of the internationally wrongful act” and “the act would be internationally

wrongful if committed by that organisation”.

Frontex Regulation, Article3.1 (a), fourth paragraph. See also the chapter on Joint Operations, above.

Frontex Regulation, Article 9; CoC JROs, Article 18.

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ANNUAL REPORT 2013

cooperation with Frontex and the MB intends to follow-up on the im-

pact of its recommendations.

The Consultative Forum can follow up on the impact and implementa-

tion of its recommendations by

◆

asking Frontex or the Management Board for information and pro-

posing action;

cooperating with the Fundamental Rights Officer in specific ar-

eas where only she has a clear monitoring mandate and access

to information.

In its first year the Consultative Forum has benefited greatly from the

excellent cooperation with the Frontex Fundamental Rights Officer. The

work of both bodies has proven to be complementary.

Visiting joint operations has turned out to be indispensable if the

Consultative Forum wants to base its recommendations on the ac-

tual developments and information from ‘the field’. Additionally, ac-

cess of the Consultative Forum to certain sets of Frontex documents

must be improved if the Consultative Forum is expected to produce

more meaningful recommendations. A positive experience, which

should be considered as good practice for future consultation, was

that Frontex invited Consultative Forum members to ‘review meet-

ings’ with national experts. This allowed for a powerful exchange

of ideas with national experts and is considered a good way to avoid

diverging fundamental rights analyses.

More time is needed for the consultation processes (including the prep-

aration of expert meetings) as the timelines should allow for the con-

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

sultation of relevant experts within the organisations and institutions

that are represented on the Consultative Forum.

The budget allocated to the Frontex Consultative Forum covers

the travel and subsistence costs of up to three meetings per year.

The costs of participation of Consultative Forum members in Fron-

tex activities are covered by the respective project budget of Fron-

tex. All other work (analyses, drafting of reports or contributions,

consultations with other Consultative Forum members, exchange

and engagement with other stakeholders, etc) is carried out by the

Consultative Forum members within their regular working time and

with their organisations’ resources; it must therefore be reconciled

with their other duties. This limits the time and means members

can devote to the work of the Consultative Forum.

Very good working relations have been established during this first

year of the functioning of the Consultative Forum and between the

Consultative Forum and the respective Frontex units. Joint meet-

ings, activities and exchanges took place in an open and con-

structive atmosphere. Candid discussions were possible because

all involved managed to establish a mutually respectful and trust-

ing relationship.

Given that the field of fundamental rights protection at the EU’s ex-

ternal borders is not only a technical matter but also a highly politi-

cised one, it was not self-evident that this level of working relations

could be achieved. It remains crucial for the future work to continue

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ANNUAL REPORT 2013

to cherish trust in order to be effective. The lessons learned from

the first year will help in this respect.

The Consultative Forum is ambitious with regard to demonstrat-

ing that cooperation between the broad spectrum of civil society

which it represents and Frontex can help improve the funda-

mental rights protection at the EU’s external borders and invites

Frontex staff members, Frontex Management Board members

and national authorities to proactively engage with the Consul-

tative Forum.

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PREVIEW 2014

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ANNUAL REPORT 2013

In 2014, the priorities for the Consultative Forum will be as follows:

◆

assist Frontex in the further development, revision and implemen-

tation of the Frontex Fundamental Rights Strategy;

provide recommendations to Frontex strategic planning processes

and documents, such as the Agency’s draft Programme of Work

2015;

assist Frontex in designing and putting in place “an effective mech-

anism to monitor the respect for fundamental rights in all the activi-

ties of the Agency” as required by the Frontex Regulation;

assist Frontex in translating the provisions on fundamental rights

protection that are contained in the Eurosur Regulation

and the

Maritime Borders Surveillance Regulation

into practice.

assess the way in which the Frontex Code of Conduct for Joint

Return Operations is translated into practice during Frontex coor-

dinated operations and the extent to which this Code of Conduct

has or has not inspired national returns operations.

◆

In terms of Working Methods the Consultative Forum will:

◆

propose amendments to its own Working Methods to the Man-

agement Board;

ask to be invited to send delegations on visits to Frontex coordi-

nated operations in order to collate information and data that al-

low the Consultative Forum to develop realistic recommendations

in line with a full understanding of Frontex’ daily practices.

Article 26a (1).

Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 Oct. 2013 establishing

the European Border Surveillance System (Eurosur), OJ L 295, p. 11.

See the Commission’s proposal for a regulation of the European Parliament and of the Council establishing

rules for the surveillance of the external sea borders in the context of operational cooperation coordinated

by FRONTEX - COM (2013) 197 final.

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FRONTEX CONSULTATIVE FORUM ON FUNDAMENTAL RIGHTS

◆

seek closer contact and more intensive direct dialogue with the

Management Board.

propose the participation of specialised Consultative Forum mem-

bers in thematic workshops.

The Consultative Forum will also assess the impact of the recommen-

dations it has made to Frontex.

When Frontex will be evaluated by an external consultancy (evalua-

tion under Art. 33 of the Frontex Regulation), the Consultative Forum

is ready to contribute to the part concerning fundamental rights com-

pliance, as has been proposed by Frontex.

Consultative Forum members were invited twice to meet with the Management Board in 2013 and found

the exchanges held on those occasions fruitful and important.

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ANNUAL REPORT 2013

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European Agency for the Management

of Operational Cooperation

at the External Borders of the Member

States of the European Union

Rondo ONZ 1

00-124 Warsaw, Poland

T +48 22 205 95 00

F +48 22 205 95 01

[email protected]

www.frontex.europa.eu

Printed version:

OPOCE Catalogue number:

TT-AH-14-001-EN-C

ISBN 978-92-95033-88-7

ISSN 2363-104X

DOI 10.2819/34912

PDF:

TT-AH-14-001-EN-N

ISBN 978-92-95033-87-0

ISSN 2363-1058

DOI 10.2819/34860