Ensuring effective enforcement of fundamental rights at EU external borders: the role of “accountability

16.4 Ensuring effective enforcement of fundamental

the judicial oversight that must be made available at the domestic level.

Instead, if truly independent and endowed with the necessary resources, the new mechanism could support the work of judicial authorities and increase their capacity to investigate pushback allegations. This could facilitate the collection of evidence needed to identify responsible actors, an issue that has so far made it particularly difficult for affected individ-uals to initiate judicial proceedings before national courts.

16.4.2 Frontex’s fundamental rights responsibilities

Along the years, Frontex has acquired an increasingly relevant role in sup-porting national authorities in the management of EU’s external borders.

In Greece, Frontex is currently involved in almost every aspect of border management, as testified by the EU Action Plan to support Greece in managing its external borders with Turkey of March 2020 (European Commission, 2020b). The agency’s involvement puts border and return operations in Greece under a formal EU “umbrella”. This has important fundamental rights implications: as an EU agency acting within the scope of EU law, Frontex has a positive obligation to prevent abuses and secure respect of EU primary and secondary law acquis (Fink, 2020).

In spite of the fundamental rights responsibilities established in its recently amended founding regulation,⁸ Frontex has repeatedly refused to admit (let alone investigate) occurrence of pushbacks in Greece.

The agency claimed instead that Greek authorities should be consid-ered as solely responsible for any violation, because alleged episodes are happening outside the operational area covered by the Agency’s oper-ations.⁹ This claim is based on a minimalist interpretation of Frontex human rights responsibilities, which does not reflect the substantial role the agency plays in Greece. Such position has become increasingly untenable considering mounting evidence of the direct involvement of Frontex-coordinated vessels in pushback operations in the Aegean Sea (Waters et al., 2020). Evidence of Frontex-deployed officers’ involvement

8 In this regard, see Articles 1, 5, 7, 10.1(e) and(ad), as well as Articles 31.3(e) and (f), 38.4, and Articles 43, 44, 46 and 47, of the Regulation (EU) 2019/1896 of the Europe-an Parliament Europe-and of the Council of 13 November 2019 on the EuropeEurope-an Border Europe-and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624.

9 Such claims were made public by Frontex Executive Director, Mr. Fabrice Leg-geri, during the European Parliament LIBE Committee Meeting that took place on July 6 2020 (https://multimedia.europarl.europa.eu/en/libe-committee-meet-ing_20200706-1645-COMMITTEE-LIBE_vd).

in pushbacks has been collected also in the Evros region (Karamanidou and Kasparek, 2020a).

After requests for clarifications from the European Parliament¹⁰ and, subsequently, the European Commission,¹¹ the Management Board of the agency held an extraordinary meeting on 10 November 2020 to discuss the issue of pushbacks. The Meeting Conclusions confirmed the need to take urgent action to investigate ‘all aspects related to the matter’, and called upon the agency’s Executive Director to ensure a ‘solid’ mechanism for internal reporting and prompt follow-up of reported incidents. They also envisaged the establishment of a ‘sub-group’ within the Management board (European Commission, 2020c).

The specific mandate of the sub-group is expected to be defined in a following meeting of the Management Board. However, it is already clear that the creation of such a new body will not in itself address the struc-tural shortcomings characterizing Frontex’s accountability framework.

There are no indications related to the independence and impartiality of the sub-group, which remains purely internal and Member State driven.

Furthermore, it appears that rather than focusing on the investigation of pushback allegations and incident reports, the sub-group will be tasked with ‘the interpretation of EU regulations’ provisions related to operational activities at sea’, and will be responsible for addressing ‘the concerns raised by Member States about “hybrid threats” affecting their national security at external borders’.

Legislative reforms of the agency over the previous years have not yet resolved the persisting deficiencies of the Frontex complaint mechanism, nor enhanced the role of the Agency’s Fundamental Rights Officer, which still fall short of existing standards of independence, accessibility and thoroughness of follow-up procedures. A generalized lack of

transpar-10 The European Parliament’s request for clarifications have been formulated through a series of written question included in a letter sent on 9 July 2020 by Fernando López Aguilar, Chair of the European Parliament LIBE Committee, and addressed to Fron-tex Executive Director, Mr. Fabrice Leggeri. Mr. Leggeri replied to the letter with a letter drafted on 24 July 2020. See (www.bellingcat.com/app/uploads/2020/10/FOI-1-20200724_ED-reply-to-LIBE-Chairman.pdf).

11 An official request to convene an urgent meeting of Frontex Management Board was made on 28 October 2020 by the EU Commissioner for Home Affairs Ylva Johans-son. See, Borrás, M. (2020), “Commission calls for meeting with Frontex over alleged

‘push-back incidents’”, Euractiv, 29 October (https://www.euractiv.com/section/jus- tice-home-affairs/news/commission-calls-for-meeting-with-frontex-over-alleged-push-back-incidents/).

ency concerning the specific roles and responsibilities of different actors involved in Frontex operations (compounded by a lack of public access to key operational documents) add to the structural accountability gaps mentioned above (Karamanidou and Kasparek, 2020b).

Legislative proposals under discussion at the EU level should be directed at addressing the shortcomings characterizing Frontex’s fun-damental rights accountability. Provided it is properly designed and entrusted with the task of overseeing the entirety of activities falling under Frontex’s operational and coordination responsibilities, the envisaged independent monitoring mechanism could help address the serious accountability challenges identified above.

16.4.3 The role of independent NGOs

While reluctant to investigate responsibilities linked to violent pushbacks, Greek authorities have increasingly criminalized civil society actors supporting migrants and refugees, including NGOs involved in Search and Rescue (SAR) operations at sea (Vosyliūtė and Conte, 2019). While in itself a violation of regional and EU standards related to freedoms of expression and association, reprisals and retaliation against NGOs involved in SAR and other humanitarian activities also prevent these actors from contributing to independent monitoring of human rights abuses.

Independent NGOs can and should play a key role in the monitoring of fundamental rights at the EU borders. In its 2013 Decision on its own-in-itiative inquiry concerning Frontex, the European Ombudsman recom-mended making the Frontex complaint mechanism available to all stake-holders with a legitimate interest in activating the procedure, including independent NGOs. The active involvement of independent NGOs in the monitoring process and the possibility for these organizations to submit public interest complaints would substantially increase the impartiality and effectiveness of the proposed monitoring mechanism.