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Frontex: human rights responsibilities

Resolution 1932 (2013)

Parliamentary Assembly
Assembly debate on 25 April 2013 (17th Sitting) (see Doc. 13161, report of the Committee on Migration, Refugees and Displaced Persons, rapporteur: Mr Cederbratt; and Doc.13187, opinion of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Clappison). Text adopted by the Assembly on 25 April 2013 (17th Sitting).See also Recommendation 2016 (2013).
1. The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (hereinafter “the Agency”), better known as Frontex, was created in October 2004 to assist European Union member States in managing and controlling their external borders. With a budget of about 85 million euros in 2012, Frontex has been crucial in implementing border security.
2. When Frontex was established, its role was seen primarily in terms of border control and migration management. Once it began to operate, it became clear that there were many human rights implications attached to its work and that it was ill-equipped to tackle them. This was particularly the case when intercepting irregular migrants, asylum seekers and refugees at borders or at sea, and also during return operations involving irregular migrants and rejected asylum seekers.
3. These human rights issues have brought to the forefront a number of structural shortcomings in the way in which the Agency operates and is managed. Notable in this respect is the lack of clarity over Frontex’s responsibility in co-ordinating and implementing joint land, air, sea and return operations with member States and regarding liabilities for human rights violations or other breaches of international law resulting from the Agency’s actions. In addition, there are problems of transparency regarding operations and activities and their human rights implications. There is also a lack of democratic scrutiny, for example when Frontex negotiates agreements with third countries concerning border controls, interceptions and returns.
4. The Parliamentary Assembly welcomes the fact that the European Union and Frontex have recently taken a range of measures to deal with a number of these problems. In this respect, the Agency’s Management Board endorsed the Frontex Fundamental Rights Strategy and a Code of Conduct. Furthermore, the European Union institutions agreed to amend Council Regulation (EC) No. 2007/2004 establishing Frontex (the “Frontex Regulation”) so as to include the requirement to protect fundamental rights. Changes were also introduced to nominate a Fundamental Rights Officer and create a Consultative Forum on Fundamental Rights (hereinafter the “Consultative Forum”). The amended rules added obligations to provide training on fundamental rights, to respect the principle of non-refoulement, and to terminate or suspend joint operations or pilot projects in the event of serious or persistent breaches of fundamental rights or international protection obligations.
5. However, the Assembly remains concerned about whether these changes alone address all the human rights issues at stake and whether some of the changes are operable and effective, even if member States and Frontex do everything they can to implement them.
6. There is still a dangerous mindset which views Frontex’s activities as being no more than those of member States, with responsibilities lying with individual member States and not with the Agency. While progress has been made in accepting that this is not always the case, the recourse to this argument is still too frequently made when looking at issues involving human rights responsibilities.
7. The Assembly therefore calls on Frontex, the European Union and EU member States to address a range of issues at both the operational and structural levels of Frontex and its activities and calls on them to:
7.1 ensure that persons with international protection needs, including potential victims of trafficking, unaccompanied minors and other vulnerable persons, are identified during border-control and interception operations, and that these persons are provided with appropriate assistance, including access to asylum and other forms of protection. Furthermore, information about requests for asylum and international protection, as well as information on boats in distress, need to be given, without delay, to the competent national authorities. In order to ensure that this is done, automatic debriefing of intercepted migrants, in accessible languages, has to be standardised and relevant instructions or clear guidelines must be provided to staff and deployed officers, in addition to training to equip them with skills to carry out this task. This has to be integrated into each operational plan;
7.2 guarantee the rights of all returnees during joint return flights or other return operations. This should include guarantees of humane and equal treatment and non-discrimination, as well as the protection of personal data. An effective and independent monitoring system at all stages of joint return operations needs to be put into place and joint return operations should only be carried out and funded for European Union member States that have an effective system in place at national level for the monitoring of forced returns. The reporting of findings resulting from such monitoring to Frontex should be obligatory;
7.3 guarantee the implementation of the Frontex Code of Conduct and the future code of conduct for joint return operations and spell out consequences for non-compliance. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as well as other relevant bodies of the Council of Europe should be consulted at the appropriate time on the draft code of conduct for joint return operations, which should take fully into account the “Twenty guidelines on forced return” of the Committee of Ministers of the Council of Europe;
7.4 make use of the power to suspend or terminate joint operations and pilot projects in cases of serious or persistent breach of fundamental rights or international protection obligations. Clear risk indicators and objective early warning criteria for the suspension of operations should be developed in co-operation with the Council of Europe, the United Nations High Commissioner for Refugees (UNHCR), the Fundamental Rights Agency of the European Union, human rights organisations and the Frontex Consultative Forum. The potential termination of an operation should not be left simply to the discretion of the deployed staff without their being given guidance;
7.5 apply basic standards for return monitoring to ensure it is effective. This needs to include the independence of monitoring bodies, the monitoring of all phases of the return and the reporting of the findings.
8. The Assembly also calls on Frontex to tackle a number of structural problems that have human rights implications by:
8.1 improving transparency and public communication regarding the nature of the operations carried out in the field and their impact on human rights;
8.2 recognising its responsibility as owner or co-owner of the projects it co-ordinates and implements;
8.3 carrying out human rights training activities for all Frontex staff and deployed border guards in co-operation with external partners, such as the Fundamental Rights Agency of the European Union and the UNHCR, and investing more in mainstreaming and integrating human rights standards, international protection obligations, and victim protection and identification into operational training activities at national level;
8.4 building up an effective human rights monitoring system on Frontex’s operational activities, by effectively using as a starting point the two new fundamental rights safeguarding mechanisms, namely the Fundamental Rights Officer and the Consultative Forum on Fundamental Rights. Further steps will need to be taken, however, to ensure that monitoring is systematic, transparent and independent, and that an effective reporting system is put into place. This reporting system will need to be based on human rights indicators and has to ensure that in each and every joint Frontex operation human rights incidents are reported and that the consequences for not reporting such incidents are defined and enforced. Furthermore, a mechanism needs to be put into place to independently assess the impact and follow-up given to the recommendations of the Consultative Forum and the activities, including training activities, carried out by external partners;
8.5 integrating into the risk analysis the likelihood of search and rescue at sea as a factor to conduct joint sea operations; integrating human rights criteria in data collection and analysis and considering the human rights situation in third countries when reporting on risk;
8.6 pre-checking that vessels provided have equipment allowing for search and rescue at sea; introducing search and rescue in training for patrolling and making it obligatory for deployed officers to undergo such training.
9. The Assembly also calls on the European Union to ensure that its member States and Frontex comply with their human rights obligations, by:
9.1 revising the Schengen Borders Code to take into account the fact that European Union member States and Frontex have responsibilities that go beyond border surveillance, in particular in relation to non-refoulement, search and rescue activities and other interceptions at sea;
9.2 enhancing the European Parliament’s democratic scrutiny of Frontex by:
9.2.1 ensuring that the Fundamental Rights Officer and the Consultative Forum on Fundamental Rights report directly to the European Parliament on human rights concerns in the context of all Frontex activities and on steps taken to address these concerns;
9.2.2 requiring the European Parliament to be consulted prior to the conclusion of any agreements between Frontex and third countries, in order to ensure that human rights and refugee rights are fully respected in the third countries when activities including return, joint patrolling, search and rescue or interception operations are implemented with them;
9.3 clearly defining the scope of Frontex’s accountability and ensuring that Frontex assumes its responsibilities with respect to human rights in joint operations;
9.4 strengthening the role of the Fundamental Rights Officer by:
9.4.1 guaranteeing his/her independence;
9.4.2 giving him/her the necessary means and resources to effectively monitor all of Frontex’s activities;
9.5 establishing a complaints mechanism for individuals who consider that their rights have been violated by Frontex;
9.6 strengthening the status of the Consultative Forum by guaranteeing it access to information on all Frontex activities, by integrating it into the planning, implementation and evaluation of projects/operations and by giving it the possibility to regularly observe joint operations;
9.7 strengthening the co-operation of Frontex with human rights expert organisations such as the Council of Europe, the UNHCR, the Office of the High Commissioner for Human Rights (OHCHR) and the Fundamental Rights Agency. This can be done by opening up joint operations to participation by these organisations and having them report back their findings to the Agency and the hosting/participating member States in order to continuously enhance fundamental rights protection;
9.8 ensuring that the above matters listed in points 9.2 to 9.7 are made compulsory through a change of the Frontex Regulation.
10. The Assembly furthermore calls upon the European Union member States to support Frontex and to ensure that in their own participation in the Agency’s activities they comply fully with all their human rights responsibilities. This they can do, inter alia, by:
10.1 ensuring that deployed officers have the required knowledge of their human rights obligations and that they have undergone human rights training to develop the respective skills that are necessary in joint operations, and that they report issues relating to protection and potential human rights violations to Frontex and the competent national authorities;
10.2 complying with the requirements stemming from the Hirsi Jamaa and Others v. Italy judgment of the European Court of Human Rights when intercepting migrant boats, both in and outside European Union territorial waters. In doing this, they need to ensure, inter alia, that those intercepted do not face collective expulsion or ill-treatment, that they have the right to an effective remedy and the possibility of claiming asylum and that they are disembarked at a safe harbour;
10.3 ensuring that vessels and equipment provided are in line with human rights standards (namely are appropriate for carrying out search and rescue at sea or humanitarian tasks with direct implications in terms of human rights).
11. Finally, the Assembly invites the European Parliament to use its democratic control and supervisory function to oversee Frontex and its activities that have human rights implications.