Print
See related documents
Resolution 1932 (2013) Final version
Frontex: human rights responsibilities
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.