EU: Pushbacks scandal: Frontex correspondence with national and EU authorities

Sets out legal basis for the recruitment of at least 40 fundamental rights monitors (Article 110, 2019 Regulation) and says that they should be recruited by 5 December 2020. However “selection procedures (for two different levels of seniority) will be launched at the beginning of November 2020”.

Delays were apparently “due to uncertainties about the actual Frontex establishment plan in 2020… the EU budget authority [which I think means Commission, Council and Parliament] withdrew in 2019 more than 100 AD [administrator] posts from Frontex overall establishment plan.” This was “informally flagged by the Agency in July 2019,” Leggeri wrote to the Commission in September asking “how to interpret” the new establishment plan, in May 2020 Commission confirmed the withdrawal of the 100+ AD posts.

“The Agency had to review thoroughly internally the available posts and grades while in between the Agency had to secure the sound recruitment of the Standing Corps (category 1 staff).” The establishment plan for 2020/2021 “is intended among others to ease the recruitment of FROMs at AD7 grade.”

Both FRO and FRA staff will undertake the application/selection process. The plan now is to fill five AD7 posts in early 2021 and at least five more following approval of revised establishment plan. Ten AST4 [assistant] posts will be filled in early 2021, with “further waves” later in 2021. “This is to mirror the way the Standing Corps will be structured (with teams managed by AD7 staff and sections coordinated by AST4 staff).”

A pilot project was launched in November 2019 in conjunction with the FRA “to test the means of deployment of the FROMs and to pilot the most effective monitoring of fundamental rights in Frontex operation areas.” Second phase in June-December 2020 to “consolidate and test the monitoring tools.”

“After a collaborative drafting -process with the Fundamental Rights Office, an internal consultation-process and the alignment of the draft with the strategic principles of the Agency, an external consultation process was initiated, which covered the following entities:

- the Management Board (after a call of interest AT, CH, SK and SWE declared their participation)
- the European Commission
- the Fundamental Rights Agency
- the European Asylum Support Office
- the European Institute for Gender Equality
- the Consultative Forum”

“A final consultation of the Chairs of the Consultative Forum was initiated by the Executive Director with a letter to the CF Chairs on 6 October 2020. As soon as feedback is received from the Consultative Forum – last contacts have shown that the consultation process within the Consultative Forum is still ongoing - the draft will once again be revised and then presented to the Fundamental Rights Officer for endorsement (Article 80 (2) EBCG Regulation) and subsequently submitted to the Management Board for approval.

Immediately afterwards, work will begin on the action plan – the draft to be elaborated in the same collaborative approach and again to be consulted.”

Says that the agency is preparing final draft of the Management Board decision on independence of the FRO and is awaiting input from the Commission. Notes that the Consultative Forum has been invited to given input despite it not being a legal requirement. Gives an overview of what will be in the forthcoming Management Board decision and notes some safeguards to be put in place to “reconcile the functional independence of the FRO… with the need to maintain a system ensuring good governance and accountability.”

Contains questions from the Commission, Switzerland and Germany to Frontex, and answers from Frontex. Questions were submitted following the Extraordinary MB meeting on 10 November and the agency’s responses were presented at the MB meeting on 25-26 November.

Process for submitting SIRs:

· “A Serious Incident must be reported through an initial SIR as soon as possible and preferably within the first 2 hours after such knowledge has been attained…. [it] does not need, at this stage, a specific confirmation of the incident… [it] “can be reported to the FSC using any available means of communication.”

· Four types of SIR: “high political/operational relevance”; incidents occurring but not related to Frontex staff or participation in Frontex activities; incidents involving Frontex staff/participants; possible rights violations or protection obligations.

Refers to the “very specific geographical and political circumstances” of operations in the Aegean.

Lists SIRs relating to the events in question:

· 11860/2020, 27 July 2020, Danish helicopter sighting

· 11934/2020, 4-5 August 2020, “FSA sighting resulting in the creation of a SAR”

· 12604/2020, 30 October 2020, no description

· 12790/2020, 21 November 2020, no description

· Four pending incident reports

· “Other relevant reporting”: 10 August 2020 involving German patrol boat; 14 May 2020, Frontex Surveillance Aircraft sighting “presented as a Prevention of Departure by the ICC Piraeus (HCG)”

As above (same document)

Cover letter for a series of documents: questions received from Commission, Germany, Switzerland following the extraordinary MB meeting on 10 November; letters received from Romania and Portugal. Also informs the commissioners of the launching of a “fact-finding mission” by Frontex’s Inspection and Control Office.

Letter explaining the process being followed by Frontex in response to media reports: 1) report by Frontex to the Extraordinary MB on 10 November; 2) Follow-up report on questions to the agency from the Commission, Germany and Switzerland (“parts of this document were published by at least one journalist on social media”); 3) inquiry by the MB Working Group “that will review all the documents available to bring further transparency and clarity of the process.”

“I would like to highlight the fact in regards to the specific case on 19 April cited by journalists – in that particular situation, I have reacted by addressing officially the Minister of Maritime Affairs and Insular Policy of Greece to express my concerns and asked for the Greek authorities to investigate the matter further, which was a necessary step taking into account that Frontex, under its current mandate, does not have the power to investigate on such matters. In his reply which I also attach for transparency, the Minister wrote that Greece had investigated the incident and assured me that the Hellenic Coast Guard had not violated the principle of non-refoulment.”

“I am concerned about a certain type of incident occurred in the operational area of the Frontex coordinated Joint Operation (JO) Poseidon 2020/ Rapid Border Intervention (RBI) Aegean 2020, which has involved an interception of irregular migrants at sea, and their intended or subsequent return to the Turkish Territorial Waters (TTW).”

Incident occurred on 18 April, Frontex-contracted aircraft spotted a boat in the Aegean with 20-30 people on board. “HCG vessel was observed to embark the migrants on board. Approximately two and half hours after the embarkation, the HCG vessel was sighted again and this time transferring the migrants back to the migrant boat. After, a Hellenic patrol vessel towed the migrant boat towards TTW.”

Leggeri invites Plakiotakis to undertake an internal investigation into the incident and asks to be informed of the outcomes ASAP. “Considering the fact that the border area is part of the operational area of the Frontex coordinated maritime operations, the adherence of fundamental rights in line with the European Integrated Border Management Strategy, in particular the compliance with the principle of non-refoulement, is an ultimate requirement.”

Closes by saying: “I am willing to continue to provide Greece in the frontline of migration with my support while ensuring good cooperation to effectively protect the human rights of those at sea.”

Writes to share the outcome of the “internal enquiry” launched in relation to the incident in April (Leggeri referred to it taking place on 18 April, Plakiotakis on 19 April)

Says the HCG’s actions stemmed from “the Schengen Borders Code as well as the fundamental rights regime and in particular the provisions for preventing the unauthorized crossing of the borders in conjunction with the respect of the rights of those who may be in need of internal protection.”

These two rules “can often create a complex operational environment,” particular “in the maritime domain where a series of unique legal and geographical particularities may affect the operational objectives or may generate the need for a prioritization of the response actions”

HCG vessel’s pushback can’t be judged in isolation, must be seen in particular “against the general background of the situation at the eastern Aegean as well as the specific conditions of the event” – namely:

· “organized and massive character of the migration flows at the eastern Aegean,” due to Turkey no longer halting departures, which “escalated the phenomenon to a hybrid nature threat, directly affecting the EU internal stability,” refers to it as “an offence against Greece’s national security, which necessitated to be counter addressed as such”

· COVID-19 and Greek prohibition on entry into the country via Turkey, which “magnified the importance of preventing illegal border crossing” due to public health concerns

· Safety of migrants: “integrity of the migrants was not endangered, ensuring… their disembarkation in a place of safety”

· Status of the migrants: Turkey is a safe country, right to fair treatment “was not jeopardized” and “on an individual basis no objection was raised and no personal reason why they should not return to Turkey was claimed by them.”

Says “none of the apprehended individuals expressed a request for international protection” and “a preliminary assessment” by HCG found no evidence any individual “matched a vulnerable category”

Goes on to say in general most irregular entries in the recent period “did not originate from conflict areas” and “the respective persons had not made use of the existing legal procedures for gaining lawful entry to Hellenic territory”

Turkish Coast Guard acted following notification from HCG and acted “in line with its commitments stemming from the EU-Turley [sic] statement”

“…it can be reasonably concluded that the actions of the HCG personnel involved in the concerned incident did not exceed the necessary limits suitable for the specific occasion in pursue to the protection of the overall interest.”

“On 27 July 2020 the Frontex deployed Danish helicopter operating in the Aegean Sea in support of the above mentioned operation reportedly detected a migrant boat near Chios Island. After the detection, a Hellenic Coast Guard (HCG) maritime asset took over the response and also the Turkish Coast Guard (TCG) was reportedly informed. The occurrence in question has been reported only as a prevention of departure incident within the JO Poseidon 2020, thus not resulting in any reported operational response in the JO Poseidon 2020 as such. Apparently, there has also been a communication from the HCG towards the Danish helicopter command asking him to modify the actual detection location afterwards.”

Invites Kliaris to launch an internal investigation and let him know the outcome.

Kliaris basically copies-and-pastes the response of Ionnais Plakiotakis some months earlier, with regard to “hybrid threats”, internal security and the actions of the Turkish state. He also refers to COVID-19 and claims “an alarming increase of Covid 19 positive cases among the migrants has been recorded during the latest period,” referring to Schengen Borders Code provisions on protecting public health.

“With regard to the event in question, the TCG took responsibility for it within Turkish territorial waters, in compliance with Turkey’s commitments under the EU-Turkey statement. The Hellenic Coast Guard (HCG) responded to the incident in accordance with international standards preserving the physical integrity of the migrants, and ensuring, in cooperation with the TCG, their disembarkation in a place of safety.”

Goes on to claim that the individual who made the SIR “invokes a conversation in which he did not participate, distorting the real facts.” Leggeri’s letter said that the HCG had told the Danish helicopter to modify the detection location after the fact, but Kliaris says that: “A follow up on the matter was accordingly provided to the Danish side to ensure the elimination of any possible misunderstanding… the ICC staff do not recommend the substantial modification of the produced reports but only their later enhancement in line with the provisions of the Operational Plan.”

Klaris also says that the SIR is based on a “hypothesis” but “this is not documented in the mission report of the Danish Helicopter and cannot be proven by its content since the asset was only partially present during the incident and departed prior to its final outcome.”

Refers to the “Joint Coordination Board (JCB)” involving Greece, participating member states and Frontex, responsible for coordination of JO Poseidon. The SIR reporter “disregarded” the role of the JCB, says Kliaris, and “unilaterally proceeded with his actions based on a personal assumption and without any prior feedback by the Hellenic Authorities, which should have been requested.”

Final substantive point is that “the core mission” of JO Poseidon “consists in the early detection of migrants’ boats at the area close to the border… a prerequisite for the prevention of unauthorized border crossings… and aiming at better safeguarding migrants’ lives.” Closes with a copy-and-paste statement on HCG saving thousands of lives over the last few years.

Refers to the Bellingcat report and the presence of Romanian patrol vessels in the vicinity of two alleged pushbacks (on 8 June and 15 August). Leggeri asks for clarification on what the Romanian vessels did during those incidents.

Long intro about the applicable legal framework.

Says that on 8 June the Portuguese vessel was observing a vessel suspected to be “transporting persons intending to circumvent the checks in the border crossing points,” (cf. Regulation 656/2014) and thus placed it under continuous surveillance awaiting further orders from the Hellenic Coast Guard (HCG). The HCG arrived on scene and told the Romanian vessel to depart so it could “take over the situation.” It says that “the same situation was registered on the 15^th of August 2020”.

In response to the question on the AIS transponder, the letter says it was turned off, “at the request of the border authority of the Hellenic Republic”.

The letter specifically refutes the allegations of involvement in pushbacks, and says it did not observe any such actions. The Romanian Border Police also “strongly reject” allegations they conducted “dangerous maneuvers [sic]” or “endangered persons on board… as there is no evidence regarding these accusations.”

The letter says “we consider it useful to increase the role and the involvement of the Frontex personnel responsible for human rights monitoring during the mission carried out at the external borders of the EU.”

And: “we would like to express our support for the identification of the necessary tools facilitating the profiling of migrants in order to obtain the information needed to identify the persons who really need assistance apart from those who want to enter the EU area for other purposes.”

Refers to media articles about Frontex’s role in alleged pushbacks and the presence of Portuguese vessels at the location of three of those incidents. Asks for a reaction to those allegations.

“Following the reception of the aforementioned letter, I personally consulted the Portuguese Maritime Police, the national authority that deployed the technical equipment (two CPB) allegedly involved in the so-called pushbacks reported in the media.

Upon this consultation, I can reaffirm the information already presented in the Extraordinary Management Board Meeting, included in the mission reports of CPB Nortada and Molivos, according to which there are no incidents reported.

…the Portuguese Maritime Police rejects all allegations of participation or passive witnessing pushback actions or any kind of actions that could be perceived as a violation of the EU law and the principles governing international protection and/or fundamental rights.”

The letter concerns a claim made by Engström at the Extraordinary MB on 10 November, in which a Frontex Coordinator allegedly reprimanded “a Swedish officer commanding a patrol boat participating in the JO Poseidon” – the incident being that the Frontex Coordinator reprimanded the Swedish officer for wanting to file a serious incident report (not specifically mentioned in the letter) relating to “an interception of dinghy in Greek territorial waters in the vicinity of Chios on the 30^th of October 2020.”

According to the letter, Engström said that “there may be a problem in investigating allegations based on incident reports that do not exist because they had never been lodged, because there is an understanding from the operational management that SIRs should not be done.”

Leggeri informs Engström that he told Frontex’s Inspection and Control Office to undertake “a fact-finding mission to establish whether procedures have been followed and to clarify what was the exact nature and content of the communications between the Poseidon JO Coordinating officer and the Commanding officer of the patrol boat.”

Leggeri asks that Engström allow “allow your Swedish officer to be heard by the assigned investigators from the ICO.” But: “Should this prove to be unattainable in our respective legal frameworks, I would be grateful if you could share with Frontex your findings following any internal investigation you might have conducted.”

Engström was provided with a copy of chapter 11 of Frontex’s handbook on joint maritime operations on serious incident reporting, “in order for this situation not to tarnish our common strive to protect our European external borders while fully upholding fundamental rights”.

Cover letter for a series of documents: questions received from Commission, Germany, Switzerland following the extraordinary MB meeting on 10 November; letters received from Romania and Portugal. Also informs the commissioners of the launching of a “fact-finding mission” by Frontex’s Inspection and Control Office.