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E.U. Border Agency Still Unaccountable on Refugees’ Rights

Following the recent controversy over Syrians returned from Greece to Turkey, journalist Apostolis Fotiadis examines why it is so hard to hold the European agency Frontex to account for violations of refugees’ rights.

Written by Apostolis Fotiadis Published on Read time Approx. 6 minutes
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Officers from the European Union’s border protection agency, Frontex, lead migrants to board a ferry in the port of Mytilini, on the Greek island of Lesbos, on April 8, 2016. AP/Petros Giannakouris

Last month, 10 Syrians boarded a flight organized and staffed by the European Union’s border agency, Frontex, on the Greek island of Kos, believing their destination was Athens. Instead, they landed in the Turkish city of Adana.

The Syrians had wanted to seek international protection in Greece, and carried documents indicating their intention to initiate asylum procedures. They were never given deportation orders or offered an opportunity to mount a legal challenge to their deportation.

Their return to Turkey has become a point of acute controversy between the Greek government and the United Nations refugee agency, UNHCR. Amnesty International has denounced the incident as refoulement, the illegal return of refugees to a country where they could face persecution.

In recent months Greece has been under severe pressure from its E.U. partners to expedite returns under the deal reached with Turkey in March. Frontex, with a mandate to enhance external border controls throughout Europe, has helped facilitate returns under the agreement.

When questioned about its responsibility for the Oct. 20 flight, its executive director, Fabrice Leggeri, told Refugees Deeply: “The agency is not competent to decide who shall be returned. This is a national competence.”

Frontex told Refugees Deeply that the agency did not verify who is on the returns lists to Turkey, which are provided by national authorities. Nothing in the debriefing of Frontex personnel on board the flight indicated any request or demands from returnees, it added. A Greek ombudsman monitor was also on board, but according to the organization’s spokesperson “did not mention any noteworthy irregularity in the debriefing report.”

Yet lawyers and activists who spoke to the returnees said some of them did ask Frontex officials about their destination during the flight, and were told to keep quiet.

Frontex has attracted serious criticism from human-rights lawyers and refugee advocates for years for turning a blind eye to human rights violations during operations. Frontex has rejected these criticisms, arguing that responsibility for human-rights violations always lies with the national authorities hosting joint operations.

It has been difficult to hold Frontex to account for incidents like the return of the Syrians to Turkey. Until last month, there was no way for people to file complaints against the agency, and its internal reporting mechanisms appear to merely deflect blame for potential human rights violations on to the governments with which it works.

A list of “serious incidents reports” compiled by Frontex, seen by Refugees Deeply, shows 15 allegations of inhumane treatment and refoulements to Turkey during Frontex Joint Operations Poseidon Land (in Greece and Bulgaria) and Poseidon Sea (in the Aegean) between December 2012 and January 2014. The agency’s response to each incident was simply to express concern and refer the case to national authorities, bar one case in which Frontex sent a monitor to follow up with local authorities.

Merikarhu, a Finnish border guard vessel that is part of the E.U.’s Frontex forces deployment, patrols the Aegean Sea on Feb. 29, 2016. (AP/Lefteris Pitarakis)

Merikarhu, a Finnish border guard vessel that is part of the E.U.’s Frontex forces deployment, patrols the Aegean Sea on Feb. 29, 2016. (AP/Lefteris Pitarakis)

Earlier this year, The Intercept published incident reports documenting multiple cases of the use of firearms against refugee boats during Frontex’s joint operations in Greece between May 2014 and December 2015. Frontex said this conduct, which severely endangered lives, was “part of the ‘standard rules of engagement’ for stopping boats at sea.” In response to a question from Barbara Spinelli, a Member of the European Parliament (MEP), Leggeri again deflected responsibility. “There are no ‘Frontex ships,’” he wrote. “The patrolling vessels flying the flag of a member state are under the command of the respective member state deploying them.”

Privately, however, Frontex appears to have taken a different stance. The agency has ordered national authorities to adhere to its policy priorities in joint operations, undermining its public insistence that it has no authority over the boats or other deployed assets. For example, in November 2014 the Frontex director of operations, Klaus Rosler, wrote to Italy’s border police chief, Giovanni Pinto, demanding that Italy refrain from using Frontex assets for purposes outside their operational mandate – in this case conducting search-and-rescue operations in international waters.

The European Ombudsman (E.O.), the E.U.’s maladministration watchdog, has long rejected Frontex’s evasive logic. “I do not accept Frontex’s view that human-rights infringements are exclusively the responsibility of the member states concerned,” Ombudsman Emily O’Reilly concluded in November 2013, calling on Frontex to establish a mechanism for dealing with complaints about rights violations arising from its work.

The agency rejected the recommendation and the E.O. office subsequently submitted a special report on the issue to the European Parliament. Former Ombudsman Nikiforos Diamantouros, who initiated the inquiry, said in an earlier interview that E.U. bodies rarely reject E.O. recommendations and very few cases have become special reports to the European Parliament.

It took another two years for the political process to reach the European Parliament, but in December 2015 MEPs passed a nonbinding resolution that Frontex should establish a mechanism to process complaints against staff and officers seconded to agency operations by member states.

“Frontex argued that it’s not real Frontex officials who do most of the work at the borders, but rather national border guards who are seconded to Frontex,” said Ska Keller, a German MEP who closely followed the case. “This is true, but we cannot expect refugees to ask the border officer to reveal his nationality. All officers in a Frontex operation carry a visible, big Frontex armband.”

“Frontex is the natural point of reference for refugees and migrants and therefore the European Parliament insisted with a big majority that it should indeed set up the complaint mechanism,” she said.

Two weeks later, the European Commission incorporated a new complaint mechanism into a regulation reforming Frontex, now called the European Border and Coast Guard (EBCG).

The reformed agency, operational since Oct. 6, has an expanded mandate, providing it with more executive power over border control, reception and return operations. The EBCG will run its own dedicated pool of equipment and seconded border officers, is able to initiate operations when E.U. members states fail to provide adequate border control and can also conduct operations beyond European borders.

The new complaint mechanism has not been as ambitious as the rest of the agency’s scope. Complaints can be submitted by an individual or their legal representative. They will be reviewed for admissibility by a “fundamental rights officer” employed by the EBCG, and admissible complaints are sent to the executive director of the EBCG regarding Frontex staff, or to an E.U. member state when their forces are the subject of complaint.

A group of 13 MEPs questioned the independence of this mechanism, noting that it is subject to the control of EBCG officials “for whose decisions there is no guarantee of impartiality and transparency,” in a written query to the European Commission in February. The European migration and home affairs commissioner, Dimitris Avramopoulos, took five months to respond, by which time negotiations over Frontex reform had already concluded.

“The complaint mechanism is a very important step,” Keller says. “But like all the other safeguards in the Frontex mandate, it doesn’t compare at all to the enlarged tasks and powers of Frontex.”

Keller believes the complaint mechanism will not substantially alter the agency’s response to allegations of wrongdoing. “Frontex has a habit of evading responsibility by throwing it to member states. Member states have the habit of throwing it to the commission. In the end, no one wants to be responsible.”

Critics are determined to keep pushing Frontex to be accountable for actions on its watch. Thirteen MEPs have submitted a question to the E.C. about Frontex’s role in the Oct. 20 return of the Syrians to Turkey, asking how the agency ensures protection of asylum seekers, and in what ways it intends to investigate the incident.

“Frontex is also responsible for these illegal returns. Such ‘misunderstandings’ occur because the E.U. wants to increase deportations to Turkey at all costs,” said Karl Kopp, director of European affairs at the refugee advocacy organisation, PRO ASYL. The organization’s lawyers are preparing to take the case of Syrians to the European Court of Human Rights, as well as file a complaint to the new EBCG complaints mechanism. “The agency must be held accountable for this violation of international law,” he said.

Claudia Ciobanu contributed reporting from Warsaw.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Refugees Deeply.

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