The Frontex Push-Back Controversy: What Oversight for Frontex? (part II)

By Elspeth GuildJean Monnet Professor ad personam Queen Mary University of London, and Emeritus Professor Radboud University Netherlands.

In the first of two blogs on Frontex and oversight, I examined the developments at the European level of legal oversight of law enforcement agencies with particular regard to requirements from a human rights perspective as set out in the decisions of the two European supranational courts (Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR)). The continuing controversy about the activities of Frontex as it moves towards increasing operational responsibility has highlighted the weakness of the current legislative framework under which it operates. In this second of the series, I turn to the shortcomings identified in the first. For the moment, this discussion has been primarily discussed in the context of the New EU Pact on Migration and Asylum which proposes a monitoring mechanism considered in an earlier post on this blog which clarifies the issues and takes into account the perspectives of authoritative NGOs such as ECRE and others. Rather than placing this discussion in the context of the Pact, here I examine the question from the perspective of the requirements set out by the two European courts in their constant case law.

Effective and independent monitoring of fundamental rights on law enforcement requires mechanisms which fulfil the requirements identified by the two courts as explained in the first part of this post: independence, effectiveness, investigative powers and the ability to make binding decisions. The instances charged with the review of law enforcement actions with fundamental rights obligations both national and supranational must be integrated into judicial structures – responsible to the courts or with powers to refer questions of fact and law to the competent courts (including the CJEU and ECtHR) in the light of independent investigations which their personnel have undertaken. Their role cannot be subsumed into the hierarchy of the law enforcement agency in respect of which they are carrying out their activities. 

As is apparent from the CJEU and ECtHR case law, a multiplicity of review structures is not necessarily problematic and indeed can be desirable. For instance, internal monitoring structures, such as the Fundamental Rights Officer role designated in Frontex’s regulation, can be very useful as means of effective internal control. Problems raised internally can often be resolved internally, provided that within the structure of the law enforcement institution there is sufficient emphasis on the importance of fundamental rights compliance. But this is not always the case, and as the case law indicates, internal review is frequently insufficient because the review body has insufficient powers, is fully integrated into the hierarchy of the institution and/or operational priorities of the institution run counter to the advice provided by the internal review mechanism. Where the review mechanism reports to the director within the institution who is seeking to deliver on operational priorities, for instance to Member States’ interior ministries represented in the Management Board, no matter how severe the problems identified by the review mechanism may be, there can be no certainty that necessary corrections to ensure fundamental rights protections will be implemented. In the event of a lack of attention to the review reporting (or the silencing of critical views within the reporting mechanism), the review mechanism remains insufficient in itself. 

At the other end of the scale, the possibility of legal action before the CJEU or the ECtHR constitutes a remedy but before any action can be commenced, the facts must be determined to a sufficient degree of certainty (not merely rejected by the director of the agency in question) before these courts of final instance can making determinations of the application of the law. One of the most challenging series of human rights violations which presented this problem to the ECtHR has been the complicity of Council of Europe states in the USA’s extraordinary rendition programme. In a series of judgments finding egregious human rights violations in the execution of torture, inhuman and degrading treatment on their territory against Italy, Lithuania, Macedonia, Poland and Romania, the ECtHR relied heavily on reports of the Parliamentary Assembly of the Council of Europe, the EU’s Parliament, investigative journalism, non-governmental organisations reports and in the case of Italy, the work of prosecutors at the national level. One of the issues which exercised the ECtHR in a number of these cases (with the exception of Italy) was the inadequacy of national review mechanisms in carrying out effective investigations into the allegations of torture. 

It is clear from the judgments, that in the view of the ECtHR had there been effective, independent and authoritative monitoring structures responsible for fundamental rights compliance within the relevant states which were not dependent on political decisions, then at the very least the fact-finding burden which fell to the ECtHR itself would have already been resolved at the national level. The need for effective monitoring mechanisms to establish the facts is a minimum requirement arising from this case law. The necessity of monitoring bodies able to carry out their activities with sufficient powers (a) to obtain the necessary information, (b) to make findings as regards fundamental rights compliance, (c) recommendations which have binding force and/or the power to launch legal proceedings in the event of continued fundamental rights failures, is an inherent part of the principle of rule of law.

While review by supranational courts is often essential as proved the case in the matter of complicity in extraordinary rendition, these courts are not best placed to carry out fact finding at the national level, and they are indeed distant both in terms of fact finding and legal proceedings. Before the resolution of a matter, many years will pass and the remedies for individuals who have suffered fundamental rights abuses wait without a remedy often while the abuses continue. Between internal review mechanisms and supranational courts, there is clearly a need for more and better independent mechanisms to determine disputed facts (see also an earlier blog in this series). 

A number of UN agencies have been exploring the issue of achieving effective human rights monitoring of law enforcement agencies in the context of border controls. On 23 February 2021, UNHCR and OHCHR produced a very useful joint consultation note on independent national monitoring mechanisms issued in light of the New Pact on Migration and Asylum and the proposal for a screening mechanism. The two United Nations agencies took the opportunity to address the issues of institutional independence, adequate capacity and qualified staff, access to documents and records, reports and follow up, periodic review, material and personal scope of investigations, effectiveness and accountability at all levels. The report also focuses on the need for synergies with international and regional mechanisms as well as NGOs and national human rights institutions – which is possibly where attention could usefully be paid. All of these recommendations are most welcome and if implemented would go a long way to resolve the monitoring gap which is evident. However, they are recommendations of UN and human rights bodies without the benefit of being founded in binding legal decisions. Thus for those whose interests are not served by effective monitoring, they can be dismissed as recommendations for good practice, not legal obligations.

It is clear that there is no single ‘silver bullet’ which will resolve the accountability deficit which has been revealed by the controversy around Frontex and Member State border control agencies’ actions in the Mediterranean. Recently, in the EU context, increasing attention is being focused on the EU’s Fundamental Rights Agency (FRA) as a possible candidate for an intermediate role in monitoring fundamental rights compliance of EU agencies. While the FRA is responsible to the European Parliament, its capacity to carry out fact finding on the ground is more limited and depends on national resources. Further, at the moment it does not have competence for such a role. The EU ombudsperson has also been active in seeking an effective and independent inquiry to carry out the fact finding role inherent in monitoring. Once again, the problem which appears to arise is that of powers to require the delivery of documents and other information necessary for a full review to be carried out. 

As the notes of the meeting between the EU ombudsperson and the Frontex team including the FRO show, it is not evident that the Fundamental Right Officer (FRO) is able to assist substantially in the fact-finding investigation as a consequence of limited powers. Further, when questioned as to the reason for the increase in the number and seriousness of complaints, the report states the FRO response as follows: “the FRO considers that complaints are increasing as a result of different factors, such as: better information material, which is increasingly translated into different languages; targeted briefings of the standing corps and Frontex deployed officers, which can further disseminate information about the CM, as well as awareness sessions with international organisations and NGOs that are on the ground.” This kind of reaction, that complaints are the consequence of too much transparency, does not inspire confidence in the capacity of the body making the claim to carry out effective fact finding. 

As discussed in this blog , an essential element, and as highlighted by the ECtHR case law in particular, is the independence of national monitoring mechanisms from law enforcement bodies (as in one proposal, national human rights institutions and alternatively or additionally the network of European Ombudspersons) with enhanced powers and resources. These are important and promising approaches. What is key however, is that all policy proposals and measures not only genuinely seek to address the underlying problem of the lack of accountability of an EU agency, but that they also take into account the case law of both the CJEU and ECtHR. This is not an area where legal judgments are lacking or where our European judges have been silent. Indeed, they have been most vocal about the need for accountability and monitoring of law enforcement agencies in every instance where the issue has come before them. Policy makers are not progressing in a vacuum, where they can design the rules as may be political expedient at the given moment. They are also under a duty to comply with the clear rules of their courts on the essential elements of effective oversight.