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Romain Lanneau, former Research and Project Assistant at the Odysseus Academic Network.

The United Nations Refugee Agency (UNHCR) and the International Organisation for Migration (IOM) urged European States to end and investigate allegations of push backs against migrants at the borders. Those statements come at a time of increased tension at the European level regarding responsibility for fundamental rights violations at the external borders. The latest report of Refugees Rights Europe presents a grim picture of the state of Europe’s borders in 2020. In May, an investigation by journalists concluded that Muhammad Gulzar was killed by Greek border guards during an operation at the border with Turkey in February.  More than a hundred Members of the European Parliament requested the Commission and the Greek authorities to launch an investigation. Some months later, in October, it is the European Border and Coast Guard Agency that is accused of being involved in push back operations by investigative site Light House Reports and large media outlets. 

It is during this period that Commissioner Johansson proposed in her speech on the New Pact on Migration and Asylum to create “a new independent monitoring mechanism for all Member States [..] to make sure that they are no push backs at the borders.” The new mechanism has been introduced in article 7 of the proposal for a Regulation introducing a screening of third-country nationals at the external borders (hereafter Proposal for a Screening Regulation), analysed by Lyra Jakulevičienė in this collection. 

1. Is a new mechanism necessary?

A. The Commission’s power of investigation  

At a hearing of the European Parliament on July 6th, the Commission, while acknowledging the concerns about reports of pushbacks, violence, and abuse in Greece and at the external border, denied its power to “investigate alleged misconduct by the law enforcement” authorities.” This statement only partly reflects the power of the Commission to deal with allegations of EU law violations by a Member State. 

Enforcement of EU law takes place at the national level. The European Commission generally has no direct enforcement power, such as investigation and sanction, except in the field of EU competition law (Articles 101 and 102 of the TFEU). To enforce the EU’s competition policy, the Commission has broad investigative power such as the ability to carry out unannounced inspections at companies’ premises, or compel companies to provide evidence relevant for its investigations. The indirect enforcement power of the Commission to monitor the transposition of EU law is the infringement procedure (Articles 258, 259 and 260 TFEU). The Commission has only limited investigative service with no powers of inquiry, largely depending on outside information. This does not seem to be a serious problem for the functioning of this procedure. The Commission starts the procedure in case a Member State fails to fulfil its obligations based on information from parliamentary questions, petitions, the press, following complaints from citizens, or other stakeholders., In most cases in order to avoid a referral of the case by the Commission to the Court of Justice for violation of the principle of sincere cooperation (Article 4 (3) TEU), the Member State will itself launch an investigation into the allegation.

There is also a mechanism that has been introduced in Article 43 of the Schengen Borders Code to verify the correct application of the code with evaluation visits, including unannounced onsite visits to Member States. The mechanism includes evaluating country candidates to the Schengen zone. A study requested by the LIBE Committee of the European Parliament concluded that “the Schengen Evaluation Monitoring Mechanism cannot be expected to detect fundamental rights issues (e.g. refoulement and push-backs) due to the orchestrated nature of announced visits and the fact that, for unannounced visits to external borders, the host state must be informed 24 hours in advance.” Moreover, the violations that are not witnessed during an evaluation visit are not addressed in the evaluation even if they are well documented in other ways. 

The last communication of the Commission on the admission of Croatia to the Schengen area in 2019 found Croatia to be compliant with the rules and standards of the Schengen Border Code. This decision was reached despite various NGOs and the Croatian ombudswoman reporting serious violations of fundamental rights at the border. The report only noted that the “protection of human rights of asylum seekers and other migrants [..] remains a challenge.” The study of the Schengen Evaluation and Monitoring system further insisted on a problem of “political interference”, highlighting the lack of independent evaluation.

Another less known avenue for monitoring the exercise of border controls, and more generally the respect for the rule of law, is assessing the use of EU funding. In the area of migration and border control, the funding regulations of the Asylum, Migration and Integration Fund (hereafter AMIF) and the Internal Security Fund, (hereafter ISF) in article 3, requires Member States receiving funding to implement policies in accordance with full respect for fundamental rights. In the ISF, the funding can be suspended if “a Member State may be deemed not to be compliant with the relevant Union acquis[..] if an evaluation report under the Schengen evaluation and monitoring mechanism identified deficiencies in the relevant area.” (recital 23). However, the Schengen Evaluation Monitoring Mechanism doesn’t effectively report on fundamental rights violations at the borders. Suspending the payment of funds to an EU Member State for non-respect of the values of the Union has never happened. The Commission could, nonetheless, be forced to act since on November 6th the EU Ombudsman launched an inquiry into the alleged lack of monitoring of EU funds allocated to the Croatian authorities in the context of border management operations. 

B. Frontex accountability mechanisms

On the field of operation alongside the migratory route where most push backs have been reported, Frontex has joint operations where deployed officers work under the command of the Member State’s authorities. In the performance of its tasks, the agency has to respect fundamental rights protections including a non-refoulement obligation per Article 80 of the Frontex regulation. Specific mechanisms were created in the 2016 Frontex regulation to guarantee adequate reporting on ongoing operations and ensure that the agency is held accountable. But, as explained by Melanie Fink, the agency repetitively claimed that national border guards of the host State were responsible for violations occurring during joint operations, denying onus. Frontex has nonetheless a positive obligation to act or report violations of fundamental rights occurring throughout its operations, even if the role of the agency is only coordinating. 

There are several mechanism aiming at protecting human rights at the EU borders:

  • The Serious Incident Reporting System is an internal mechanism to report fundamental rights violations in the course of joint operations. Deployed officers are supposed to report incidents to the agency which transmits the information to the host Member State. A case study on the practices at the Greek border concluded that the cases of violation reported by Frontex to the Greek authorities failed to be considered or were determined to be false. The Serious Incident Reporting System also suffers from under-reporting of violations of fundamental rights as the Consultative Forum, an advisory body to the agency, outlined in 2018 (Respond Report, page 34). Such a lack of reporting can be explained by “the esprit de corps [of law enforcement that] leads to a willingness to stick together and help each other when allegations of ill-treatment are made, to even cover up the illegal acts of colleagues” as noted by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment activities in its 14th General Report. 
  • The Fundamental Rights Individual Complaints Mechanism was created in 2016. It allows individuals whose rights have been violated to file a complaint. The mechanism proved inefficient because “all complaints concerning the actions of Member State personnel were passed on to the Member States without any substantive review.” (Fink, 2020).
  • Frontex Fundamental Rights Officer (FRO) who is independent in the performance of her duty should have access to all information concerning fundamental rights. The role of the officer is to monitor and contribute to the promotion of fundamental rights protection within the agency. She is also involved in the administration of the individual complaint mechanism. Moreover, the Fundamental Rights Officer and the Consultative Forum can recommend the executive director suspend an operation or prevent its launch. On 27th January 2021 Frontex decided, for the first time, to suspend its operations in Hungary. This decision comes after two rulings of the CJEU last year, in May (analysed here) and December (analysed here) on recurrent violations of fundamental rights of asylum seekers at the border. 

These accountability mechanisms failed to produce any meaningful change in addressing violations at the borders. The new regulation adopted in 2019 considerably changed the scope, size, and financially strengthened the monitoring and accountability mechanisms. In particular, the Fundamental Rights Officer was supposed to be provided with 40 Fundamental Rights Monitors that will monitor the conduct of operations and contribute to the training given on fundamental rights to deployed officers. It is too early to assess the impact of these changes on the agency work because most provisions still have to be implemented. Both the Commission and the working group on Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea set up by the management board of Frontex observed a reluctance by Frontex in implementing the newly adopted accountability and monitoring mechanisms. The working group further concluded that the investigation into allegations of push backs at the Greek borders could not be reached in three cases because Frontex failed to provide information. A recent article of De Spiegel pointed out the role of the executive director of the agency, Fabrice Leggeri, in underreporting fundamental rights violations and hindering the work of the fundamental rights officer.

The European Ombudsman’s new investigation into the complaints mechanism of the agency could force a long-awaited evolution in accountability and compliance with fundamental rights protection. In addition, the European Parliament decided on January 29 to set up a working group on Frontex to investigate allegations on violations of fundamental rights and draft recommendations. 

Conclusively, there is a clear lack of accountability for violations of fundamental rights at the borders and the Commission’s proposal for a new independent mechanism appears to be necessary.

2. The Commission’s proposal for a new mechanism

The new proposed mechanism of the Article 7 of the Proposal for a Screening Regulation will “ensure compliance with EU and international law, including the Charter of Fundamental Rights, during the screening” and “that allegations of non-respect for fundamental rights in relation to the screening, including in relation to access to the asylum procedure and non-compliance with the principle of non-refoulement, are dealt with effectively and without undue delay.” This new mechanism would apply to all border controls done by Member States and not only in the framework of operations conducted by Frontex.

Regarding the setting up of the mechanism (Article 7.2 of the Proposal for a Screening Regulation) Member State will have to “adopt relevant provisions to investigate allegations of non-respect for fundamental rights” as well as to “put in place adequate safeguards to guarantee the independence of the mechanism.” The Fundamental Rights Agency (FRA) will issue general guidance on the establishing and independent functioning of the mechanism at the request of Member States. National, international, and non-governmental organisations can be invited to participate in the monitoring. 

ECRE and other NGOs issued a statement outlining four concerns about the proposed Independent Monitoring Mechanism concerning its scope, independence and financing, the accountability of Member States to the mechanism, and finally the consequences for identified violations of fundamental rights protection. 

A. The scope of the New Independent Monitoring Mechanism

The proposed Screening Regulation concerns people apprehended in their attempts to cross the border illegally as well as people illegally staying in the country. The screening of applicants at the external border will be done in adapted facilities situated at or in proximity to the external border. Border guards must provide applicants with necessary information on the procedure, check their health, and consult the information systems to identify people. However, push back actions occur at the border, most of them far from the eyes of diligent observers and thus only a few are reported. Clearly, the proposed mechanism needs to monitor border guards during deployment to ensure they abide by the established guidelines. 

B. The setting up of the mechanism: independence and financing 

The European Network of Human Rights Institutions recommended the Commission to rely on existing National Human Rights Institutions rather than creating a new mechanism. National Human Rights Institutions are state-mandated independent bodies “periodically accredited in line with international standards (under the UN Paris Principles), providing evidence of their independence, plurality and effectiveness.” They cooperate with other human rights defenders including national ombudsmen (when they are not the same institution) and, often, have the mandate of National Preventive Mechanisms under the optional protocol to the Convention Against Torture. Those institutions have a strong network at national and regional levels, including the opportunity to participate in the inquiry of the European Ombudsman. Adequate resources via European funding should of course be provided for national mechanisms to assume their new monitoring functions independently from governmental interference. 

C. The accountability of Member States 

An illustrative example of the failure of Member States to take concrete action on violation documented by National Human Rights Institutions can be found in the Croatian Ombudswoman Annual Report of 2018. The Ombudswoman sent the Croatian Court its findings and conclusions on the death of Madina Hussiny at the border, in the context of the criminal investigation launched by the family. The national court dismissed the criminal charges and, despite the request of the Ombudswoman, refused to be transparent about the assessment’s conclusions. Therefore, it remains unknown whether the findings were even considered in the court’s decision. As stated clearly by the ECRE and others, “the proposal needs to specify the follow-up process so that authorities do not dismiss the need to act”. 

D. Consequences for a violation of EU law by Member States

The study requested by the European Parliament on the Schengen Evaluation Monitoring Mechanism found that the proposed independent mechanism by the Commission could address the shortcomings “highlighted in the case of the Schengen Evaluation Monitoring Mechanism” in regulating compliance with fundamental rights protections at EU borders (p.72). The independence and access to border operations of the new national monitoring mechanism that should be complementary to the Schengen evaluation mechanism could effectively report rights violations. This would enable the Evaluation of the Schengen Mechanism to be based on independent information collected at the borders.

In cases of persistent violations of fundamental rights in a Member State, or as outlined by ECRE and others, “obstruction of the mechanism’s work (e.g. failure to grant access to border areas, documents or locations where victims of push backs find themselves) or non-compliance with its findings,” the Commission should take the step to withhold EU funding and/or launch an infringement procedure. 

Conclusion

The current implementation of the infringement procedure by the Commission and the existing Schengen evaluation mechanism do not effectively prevent, nor sanction violations of fundamental rights at EU borders. As a result, the EU budget spent in border control is not adequately monitored and the Commission does not sanction violations with a suspension of funding. The accountability and monitoring mechanisms of Frontex are also insufficient to guarantee the protection of fundamental rights in border operations. So there is a clear need for a new independent mechanism at the external borders. 

The proposal of the Commission to create a new monitoring independent mechanism falls short of expectations. The negotiation on the Proposal for a Screening Directive will have to address those concerns and recommendations to give the EU a “predictable and reliable migration management system” that “lives up to its values” (Von der Leyen, New Migration and Asylum Pact Press Statement). 

I thank Daniel Thym, Philippe de Bruycker and Kyndal Jackson for their review of this post.

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