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Frontex Management Board Working Group

Topic

Purpose: Investigation on alleged Human Rights violations in the Aegean Sea Operations

By Ilaria Aversa and Mariana Gkliati - 6 March 2021

Investigative body: ad hoc Working Group of the Frontex Management Board (sub-groups on: ‘clarification of the reported incidents’, ‘analysis of the legal framework’ and ‘revision of the current reporting system’).

Members: Member State representatives from Germany, France, Greece, Norway, Romania, Switzerland, Sweden, Hungary, European Commission.

Started: November 2020.

Status: Ended March 2021.

Final Report: Frontex Management Board Working Group, Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, 05 March 2021.

Main conclusions:

The Management Board overall found no substantial evidence of fundamental rights infringements. However, five cases are noted to need further investigation.
Three cases were not investigated due to the reluctance of the Agency to provide access to necessary documentation.

The Management Board has invited the Frontex Executive Director, Fabrice Leggeri, to provide the documents as soon as possible.

The Management Board further pointed out the following:

• Not every detected attempt of irregular border crossing can automatically be considered as an asylum case. However, the right of access to asylum must be guaranteed regardless of the circumstances.
• Boats must not be left adrift unable to navigate regardless of other vessels in the vicinity.
• An application of the obligation to suspend or terminate an operation due to serious and consistent violations would not be justified in this case.

Main issues highlighted in the Management Board Report:

• Need to improve the reporting and monitoring system
• Lack of clarity in the whistleblowing system of “serious professional wrongdoings”
• Border Guard Team Members are not included in the whistleblowing scheme
• There is no “Compliance Centre” for Team Members
• Team Members can only report Serious Incidents Category 4 (alleged violation of fundamental rights) to the Frontex Situation Centre.
• Team Members find it very hard to categorize serious incidents correctly. As a result they avoid reporting under Categories 1 and 2.

Recommendations to act on the reported issues:

• Improve quality and quantity standards in Technical Equipment Mission Reports and Incident Reports.
• Ensure that every Operational Plan includes a transparent reporting mechanism.
• Revise and enhance the minimum requirements for the experts in the Frontex Situation Centre handling serious incident reports and provide additional training for the experts.
• The Serious Incident Report Category 4 (alleged violation of fundamental rights) should be directly reported to the Fundamental Rights Officer for their independent follow up in accordance with Article 109(2)(b) of the EBCG Regulation.
• The Incident must be investigated without delay. Any retrograde interference to adjust operational data shall be avoided.
• All actions taken by Frontex-owned or co-financed assets should be, where feasible, documented by video consistently.
• The question of a proper implementation of Article 46 of the Regulation (EU) 2019/1896 (obligation of the Executive Director to suspend, terminate or not launch operations if the operational plan is not respected) must be take into account. The existing legal framework only offers Frontex limited options for action in the event of reported and established violations. The most important measure is Article 46, which is a measure of last resort. In the sense of proportionality, it is necessary to discuss measures and proceedings below the threshold of Article 46.
• The reporting system should be combined with a newly introduced culture, where failure is acknowledged and addressed to create awareness of and sensitiveness towards possible misconduct.

Other outputs of the investigation:

• Preliminary Report Frontex Management Board Working Group, Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, 19 January 2021
• Conclusions of the Management Board’s meeting on 20-21 January 2021 on the preliminary report of its Working Group on Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea
• European Commission: The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders
• Frontex Consultative Forum on Fundamental Rights: Response to request for information received from the FRALO