What is Frontex doing about illegal pushbacks in Evros?
Frontex at Greek Border
This blog post accompanies the release of the latest report in work package 2: border management and migration control:Respond Working Paper 2020/59, July 2020, DOI.10.5281/zenodo.3967784
Fundamental Rights, Accountability and Transparency in European Governance of Migration: The Case of the European Border and Coast Guard Agency FRONTEX
by Lena Karamanidou and Bernd Kasparek.
On the 12th May 2020, 102 MEPs asked[1] the European Commission to examine the findings of a joint investigation on the killing of Muhammad Gulzhar on the 4th March in Evros, the area adjoining the Greek-Turkish border. The investigation found that his death was a likely a result of live fire by the Greek forces (Forensic Architecture, 2020; Bellingcat, 2020; Christides, Lüdke and Popp, 2020a). Gulzhar, and many others, were trying to cross into Greece following the announcement of the Turkish government that it ‘opened the border’ on the 27th February 2020. In order to prevent entry, the Greek police and army resorted to violent methods, including use of stun grenades, teargas, shooting blank bullets and possibly live ammunition (Greek Government Gazette, 2020; Amnesty International, 2020; Human Rights Watch, 2020). Despite the mounting evidence, the Greek government dismissed such allegations as ‘fake news’ (LIBE Committee Meeting, 02 April 2020, 10:00 - 12:00, 2020; LIBE Committee meeting, 06 July 2020, 16:45 - 18:45, 2020). The MEPs’ letter, triggered by these events and the Commission’s lack of response, also asked for information on the event from Frontex, the European Border and Coast Guard Agency, which was present in Evros at the time.
The reply[2] by Commission President von der Leyen on the 9th June 2020 offered unconditional support for the actions of the Greek government. In the vein of her statement that Greece is the ‘shield’ of Europe during her visit to Evros on the 2nd of March, von der Leyen accepted the explanations of the Greek government, who a few days earlier yet again denied responsibility for the killing of Gulzhar and other incidents of deaths and injuries in a meeting of the LIBE Committee. While the Commissioner’s response drew strong reactions for its lack of concern for violations of fundamental rights at the external border of the EU (Gehrke, 2020), it was also remarkable for another reason: it stated that ‘the Agency did not receive any Serious Incident Report that would substantiate the allegations in this regard’.
German Federal Police van, Orestiada, August 2019. Photo_Lena Karamanidou
The Serious Incident Reporting system is an internal mechanism used by Frontex to record incidents of significance, including fundamental rights violations, during joint operations of the Agency with member states’ border guard forces. Unlike the other five monitoring and accountability mechanisms – the Consultative Forum (CF), the Fundamental Rights Officer (FRO), the Individual Complaints Mechanism, the Forced Return Monitors and since 2019 the Fundamental Rights Monitors – it is not mentioned in the two last regulations governing Frontex, i.e. regulation 2016/1624 and 2019/1896. Having spent several months researching Frontex’s monitoring and accountability regime, we thought that the non-submission of a Serious Incident Report (SIR) – or likelihood of this, as von der Leyen’s statement is vague - was at the same time strange and unsurprising. An event as serious as a death in an area where Frontex is operational and that could have resulted from the actions of national border forces should certainly trigger the submission of a SIR. After all, such reports were submitted in the past for accidental deaths and even protests against the border fence between the villages of Kastanies and Nea Vyssa (Frontex, 2015a; b).
Yet, our research has shown that the monitoring and accountability regime of Frontex is seriously flawed. It neither monitors fundamental rights violation at the borders of the EU in an effective manner, nor does it hold any actors involved accountable for their actions. We explore these shortcomings in the context of Evros, an area where extensive and well documented reports of violations of human rights, in particular violent pushbacks, have been documented for over a decade. The insufficiency of the SIR-mechanism is part and parcel of the flawed accountability regime.
The presence of Frontex in Evros, pushbacks and fundamental rights responsibilities.
Frontex has been present in Evros since 2010. The presence of the agency began with the RABIT (Rapid Border Intervention Team) operation launched in response to a request by the Greek government in late 2010. This emergency operation was then folded into Operation Poseidon Land in the spring of 2011. Since 2015, the operation is called JO Flexible Operational Activities (Fink, 2018; Carrera and Guild, 2010; Frontex Press Office, 2020). During the initial RABIT operation, Frontex deployed 175 officers, but since 2011, the agency is present with much smaller teams of 15 and 30. On the 1st March 2020, following the events at the Greek border, the Greek government again requested a RABIT deployment (To Vima, 2020). The request was accepted the following day, and the agency’s management board agreed with the decision on the 3rd March (Frontex, 2020b). An additional 100 border guards and technical equipment from 22 member states were deployed to Evros on the 13th March 2020 (Frontex, 2020a).
The use of unlawful and violent practices in Evros has been documented for more than a decade (Frelick, 2008; Pro Asyl, 2013; Mobile Info Team, 2019). Pushbacks - a practice that violates the prohibition of collective expulsions in the European Convention on Human Rights and the Charter of Fundamental Rights, as well as and the prohibition of refoulement enshrined in the Geneva Convention -, have always been part of border management practices in the area (Frelick, 2008). However, they have increased since 2017. NGOs, activists, and journalists have documented systematic patterns of pushbacks conducted by the Hellenic Police and army, as well as ‘masked men’ (Greek Council for Refugees, 2018; ARSIS, Greek Council for Refugees and HumanRights360, 2018; Human Rights Watch, 2018; Kartali, 2019; Koculu, 2019; Malichoudis, 2019; Christides, Lüdke and Popp, 2019, 2020b). Testimonies by migrants have also referred to a range of unlawful practices such as the use of excessive violence and the confiscation and destruction of personal belongings and documents. In March 2020, pushbacks appeared to have be conducted in the open, justified by reference to the ‘exceptional’ situation in Evros (Human Rights Watch, 2020; ’The Turkish authorities drove us to the border’, 2020). Since April 2020, further pushbacks were reported, this time also extending to transporting people from camps and detention facilities in mainland Greece (Border Violence Monitoring Network, 2020; Abdulrahim, 2020; Schmitz, Kalaitzi and Karakaş, 2020).
German Federal Police van, Alexandroupoli, January 2019. Photo_Lena Karamanidou
Violations of fundamental rights that occur within an area where Frontex has operational activities are a matter of concern for the Agency. Frontex is obliged to comply with human rights and refugee law in all its activities (Regulation 2016/1624, Art 1; Regulation 2019/1896, Art 1). Further, Regulation 2019/1896 made fundamental rights a key component of the definition of European Integrated Border Management. Deployed staff have an obligation to report fundamental rights violations committed during joint operations (Frontex, 2019c). Persons subject to violations of their rights by Frontex and national officers can submit complaints through the Individual Complaints Mechanism introduced in 2016. The Agency, and in particular its Executive Director and the Fundamental Rights Officer, have specific obligations to investigate, or in the case of national officers, manage the investigation of such incidents. Further, in the case of systematic violations of fundamental rights, the Executive Director can suspend an operation and, since Regulation 2019/1896, even suspend its launch.
Monitoring fundamental rights obligations in Evros
We located six serious incident reports submitted between 2017 and 2019 that concerned violations of fundamental rights through Freedom of Information requests and information we received through third parties (Frontex, 2019e; f, 2018b; c, 2017d; e). While Frontex informed us that zero SIRs were submitted since 2018 (Frontex Press Office, 2020), an FRO report mentioned two SIRs submitted in 2019, which we then obtained through a FOI request (Frontex, 2019h). Three SIRs (nos 788, 10025, 10036) (Frontex, 2018b, 2019e; f) were submitted by Frontex personnel in the Evros area and one by the FRO (Frontex, 2017e); it is unclear who submitted the other two, which are based on a report by a Greek human rights body and Turkish media sources respectively (Frontex, 2017d, 2018c). The number of SIRs is very low compared to the incidents documented by NGOs and journalists which refer, in our estimate, to over 150 incidents. Further, the FRO in their monitoring capacity, visited Evros in January 2019 for a series of meetings with the Greek authorities and NGOs (Frontex, 2019d).
Another reason for the low number of SIRs is that it is likely that deployed officers have not been constantly present in the ‘frontline’ – a term used by Frontex to refer to the military zone immediately next to the river Evros, after which the area is named. According to an email communication by Frontex (Frontex Press Office, 2020) and internal documents (Frontex, 2019d; a), the Greek authorities do not deploy Frontex officers in joint patrols at the ‘frontline’. Yet there are many uncertainties around this claim. The 2017 and 2018 operational plans, which outline the tasks of Frontex and the Hellenic Police, do not preclude their presence (Frontex, 2018a, 2017b). Further, a number of Greek official and media sources suggest that Frontex officers were present in the frontline area (Γιγαντιαία επιχείρηση φύλαξης των συνόρων στον Έβρο [Gigantic operation of border protection in Evros], 2020; Hellenic Police, 2018a; b; Hellenic Republic, Ministry of Citizen Protection, 2018). For instance, the response of the Greek Ministry for Citizen Protection to the Council of Europe’s 2018 report stated that Frontex officers
always under the supervision of Greek Police Officers, take part both in the prevention operations (entry prevention) and in the management of immigrants after their detection (procedures of nationality identification, information, interpretation, etc.) (Hellenic Republic, Ministry of Citizen Protection, 2018, p.2)
‘Entry prevention’, unlike operations such as ID checks at main roads, takes place predominantly at the green border. Yet, the FRO’s report on her visit to Evros suggests that the absence of Frontex officers from the frontline was an operational decision of the Greek authorities, while the minutes of the 18th consultative Forum suggest disagreements between the Frontex executive and the Greek authorities (Frontex, 2019d; a). In November 2019, Minister for Citizen Protection M. Chrysochoidis did not answer a question on this matter when asked at a LIBE committee meeting (Committee on Civil Liberties, Justice and Home Affairs Ordinary meeting, 06 November 2019, 10:00 - 12:29, 2019). It is however a practice with implications for fundamental rights governance. While the presence of Frontex is argued to strengthen fundamental rights compliance (European Commission, 2016; Frontex, 2017c; Oel in ‘Under surveillance’: Monitoring at the border, 2020), their absence may protect Frontex from complicity. For example, Frontex officers were not deployed in transit zones at the Hungarian border, which was interpreted as an attempt to avoid responsibility for pushbacks to Serbia (Fotiadis, 2020).
According to the Frontex Press Office, no individual complaints were submitted in the Evros region since 2019. The number of complaints submitted across all Frontex operations is generally very low – just 10 in 2018 and possibly only 5 in the first half of 2019 (Frontex, 2019g, 2018d). Several reasons have been identified: lack of accessibility, weak dissemination, unclear procedures informing potential complainants, absence of information and complaint forms in operational areas (Frontex, 2019g, 2017a, 2019b; Correctiv, 2019). This last issue was noted by the FRO in her report on her visit to Evros (Frontex, 2019d). SIR no 788 suggests yet another barrier: a migrant who had been pushed back to Turkey during previous attempts to enter Greece was reluctant to submit a complaint during a debriefing interview conducted by a Frontex officer for fear of reprisals by the Greek police (Frontex, 2017d, 2019d). The absence of procedural safeguards and fear of the consequences complaints might cause on asylum applications of complainants have been identified as barriers by the FRO and other sources (Frontex, 2014; Correctiv, 2019).
Investigating Reports of Pushbacks
All the submitted SIRs concerned members of the Greek national authorities, specifically the Hellenic Police. In such cases, the Frontex legal framework stipulates that the FRO informs the national authorities responsible for investigating complaints, and ‘follows up’ – a term not defined in the legal framework. If a member state ‘within the determined time period’, which also is not determined in legislation, or ‘does not report back or provides only an inconclusive response, the fundamental rights officer shall inform the executive director and the management board’ (Regulation 2019/1986; Art 111, par 7). The legislation does not specify the possible responses of the Executive Director and the management board.
The investigations on all six incidents were ruled that no violations were committed. The Hellenic Police argued that there was either no credible evidence or that the incidents never took place (Frontex Press Office, 2020). SIRs 10025 and 10036 are marked as ‘closed’ but contain no information regarding the final outcomes of the investigation (Frontex, 2019e; f). Investigations on SIRS submitted before 2017 similarly suggest that the Greek authorities either did not accept any blame or failed to follow up in a timely manner (Frontex, 2016a). Other similar complaints, not related to Frontex SIRs, were also dismissed (Hellenic Republic, Ministry of Citizen Protection, 2018). Such outcomes are not surprising. The independence and impartiality of investigation into allegation of fundamental rights violations by the Hellenic Police has previously been doubted both by Frontex itself and by human rights organisations. In 2013, the FRO urged the Greek authorities to ensure, as ‘minimum and urgent measures’
a more independent national investigation of these types of allegation (i.e. other than the local law enforcement units), better collection of detailed information at source and enhanced follow-up of allegations in close coordination with Frontex (Frontex, 2013)
The question of the independence of investigations, however, remained an issue. Allegations of violations continued to be investigated by internal police units, sometimes by the same local force accused of conducting the violation (Hellenic Republic, Ministry of Citizen Protection, 2018). The UN Committee on the Prevention of Torture recommended in 2019 that Greek authorities
enhance efforts to ensure the criminal accountability of perpetrators of acts that put the lives and safety of migrants and asylum seekers at risk, and ensure that victims, witnesses and claimants are protected against ill-treatment or intimidation that may arise as a consequence of their complaints (UN Committee against Torture, 2019, p.4)
The dismissal of the reported incidents also reflects long standing issues of unaccountability and the reluctance of Hellenic police to investigate or admit responsibility of violence or human rights abuses against migrants (Christopoulos, 2014; Karamanidou, 2016). Further, the Greek Prime minister, ministers and local police repeatedly and publicly denied that pushbacks are conducted - although the FRO report indicates that police authorities in Evros blamed paramilitary groups (Hellenic Republic, Ministry of Citizen Protection, 2018; Mourenza, 2019; I Kathimerini, 2019; LIBE Committee meeting, 06 July 2020, 16:45 - 18:45, 2020). NGOs, human rights organisations and MEPs have called for an independent inquiry into pushback practices, although there has been no response from the Greek government (Human Rights Watch, 2020). While some judicial investigations – as well as one by the Greek Ombudsman since 2017 - are ongoing (AIDA, 2020; National Commission for Human Rights, 2020), the most likely outcome is an eventual recourse to the ECtHR.
The potential involvement of Frontex staff in pushbacks
None of the six serious incident reports we refer to above implicate Frontex deployed staff in any pushback incidents, and Frontex has denied any involvement of officers deployed in Evros in conducting pushbacks, citing the lack of formal complaints and reports against them (Kartali, 2019; Soguel, 2018). Yet, information we gathered during fieldwork in Evros (Karamanidou and Kasparek, 2018) and migrant testimonies (ARSIS, Greek Council for Refugees and HumanRights360, 2018; Mobile Info Team, 2019; Soguel, 2018) have implicated Frontex officers, especially German speaking ones, in pushbacks:
The pushback was conducted by Greeks and Germans. In Turkey we were stopped by the mafia, who beat us too. I know that lots of people pay them money so as to leave unharmed. (ARSIS, Greek Council for Refugees and HumanRights360, 2018, p.4)
The respondent claims that he heard the “coast guards” speaking in German when their boat was stopped after crossing the river into Greece. (Mobile Info Team, 2019, p.t21)
German Federal Police vans, Orestiada, December 2019. Photo: Lena Karamanidou
In total, we found nine testimonies in four different reports and one news article (Soguel, 2018) that suggest involvement of Frontex deployed officers in pushbacks, even though their association with Frontex or their nationality cannot be proven beyond doubt. However, the presence of German teams is visible in the area. During the course of our fieldwork we saw German Bundespolizei vans stationed in Alexandroupoli and Orestiada between December 2018 and December 2019 (images 1-3). During the events at the Greek-Turkish border in March 2020 and before the RABIT deployment, the German Bundespolizei patrols cars were sighted by two journalists we talked to.[3] A photo published in a Politico article (von der Burchard, 2020), later removed, shows a German police car, one of the two we observed in the area during fieldwork, next to apprehended migrants.[4] Two police directors we interviewed in October 2018 also confirmed the presence German and Austrian teams. According to an informant, Dutch teams – speaking a language that might be mistaken for German - were present in 2017, and we sighted a Dutch patrol car in Orestiada in December 2019.
Moreover, an FRO report dating back to 2014 also implicates German speaking officers (Frontex, 2014). A migrant subjected to a pushback described how
Five people arrived, wearing masks and speaking German and took away all their belongings. These people were speaking English with the policemen.’ (Frontex, 2014)
We found no evidence that the FRO initiated an investigation on this case, which suggests that similar incidents occurred before 2017. Consequently, it would be unlikely that the authorities of the home country of the officers – in the above cases Germany or Austria – investigated the incident either.
The failures of monitoring and accountability mechanisms and implications for fundamental rights at European borders
While it has been claimed that the presence of Frontex in a border area improves compliance with fundamental rights and allows for the better monitoring of violations, the case of Evros reflects the wider shortcomings of its monitoring and accountability regime. The low numbers of complaints and fundamental rights SIRs, a Europe-wide trend (Frontex, 2019g), suggest that Frontex deployed officers fail in their obligation to report fundamental rights operations. Investigations rely heavily on national authorities which in the case of Greece are not independent or impartial, and operate in a political context that discourages investigations. The existing legal framework, as Frontex officials have stated themselves (Border Violence Monitoring Network, 2019; Fotiadis, 2020), including in an interview to us, does not give the agency authority over the national forces of member states, and no clear mechanisms for addressing systemic and persistent violations at the borders.
Yet, Frontex, and specifically its Executive Director, have one potential response: suspending or not launching an operation because of persistent fundamental rights violations at a border. This course of action was never used, even though it was proposed at least twice. In 2016, the CF and FRO recommended that Frontex suspend its operations in Hungary because of widespread and extensively documented fundamental rights violations at the Hungarian-Serbian border (Frontex Consultative Forum on Fundamental Rights, 2016; Frontex, 2016b). The recommendation was rejected by the ED, Fabrice Leggeri (Frontex, 2017c). Following a communication with the European Commission, he argued that fundamental rights violations were not extensive since only three SIRs were submitted – demonstrating how the shortcomings of the monitoring system can legitimate decisions - and that the continued presence of Frontex would safeguard fundamental rights and their monitoring. The second recommendation concerned Evros. In the report on their visit to the area, the FRO observed that Frontex should ‘consider suspension or termination of the activities in case violations of fundamental rights or international protection obligations are of a serious nature or are likely to persist’ (Frontex, 2019d, pp.5–6). We found no evidence to suggest this recommendation was considered, let alone adopted, despite the fact that concerns on situation in Evros were discussed in a consultative forum meeting (Frontex, 2019a).
Dutch Border Police car, Orestiada, December 2019. Photo_Lena Karamanidou
The response of Frontex in internal documents seems to have been limited to raising some concerns with the Greek authorities, especially in relation to the presence of Frontex officers in the ‘frontline’. Yet, the launch of the RABIT operation in 2020 brought the issue of fundamental rights into sharp relief. The possibility of fundamental rights violations at the time was high, not only because of the incidents of violence we mentioned in the introduction, but also because the government had suspended the asylum process on the 2nd of March (Greek Government Gazette, 2020), a clear violation of international refugee law and the EU asylum acquis.
We don’t know to what extent fundamental rights issues were taken into account prior to the decision to launch a RABIT operation at the Greek-Turkish border, since only two days intervened between the request for Frontex assistance by the Greek authorities on the 1st March 2020 and its formal approval by the Management Board, just two days later. Further, in May 2020 the RABIT operation was extended to July 2020[5], despite the persistent reporting fundamental rights violations since March including pushback incidents (Border Violence Monitoring Network, 2020; Human Rights Watch, 2020). In contrast, Frontex argued that that they were ‘not in charge of asylum procedures’ (Monella, 2020). and the Executive Director fully supported the ‘very strong decisions’ of the Greek authorities and stated that
We made it clear we wanted to keep order at the external border and not allow violent attempts to cross it. Therefore the rule of law was also upheld (LIBE Committee Meeting, 02 April 2020, 10:00 - 12:00, 2020)
The statement by Leggeri statement suggest that while fundamental rights were incorporated in the definition of border management in Regulation 2019/1886, in practice they can be excluded from perceptions about what constitutes ‘legality’ or the ‘rule of law’ at external borders. It also reflects that fundamental rights, both in the context of the RABIT operation and systematic practices of pushbacks in previous years, are of secondary importance to the imperative of controlling the external borders of the European Union.
[1] https://twitter.com/Tineke_Strik/status/1260177579815899137
[2] https://twitter.com/Tineke_Strik/status/1281239413704593408
[3] https://twitter.com/panajotaki/status/1237723455619043329. A journalist present in the area in early March 2020 also saw Bundespolizei vans driving in the area (personal communication).
[4] https://www.politico.eu/article/frontex-sends-reinforcements-greece-migrant-crisis-turkey
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