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"content": "=Z FRONTEX EI\n\nEUROPEAN BORDER AND COAST GUARD AGENCY\n\nWarsaw, 05.03.2019\n\n \n\nne\n\nFundamental Rights Officer’s Observations\nto return operations conducted in the 2\"4 Semester of 2018\n\n1 July - 31 December 2018\n\nBackground and overview of activities\n\nIn accordance with Article 28 (8) of the European Border and Coast Guard Regulation (hereafter\nreferred to as ‘the Regulation’), the Fundamental Rights Officer (FRO) shall provide observations on\nfundamental rights covering all return operations. Her observations are attached to the Executive\nDirector’s semi-annual evaluation report to the Management Board. The reporting period is therefore\nadapted to the submission of the evaluation report by the Executive Director, covering the 2\"\nsemester of 2018. FRO Observations from the first semester of 2018 (January- June 2018) were shared\nwith the Member States’ Direct Contact Points on Returns, Member States’ return monitoring bodies\nand monitors from the pool of forced return monitors (hereinafter referred to as ‘the pool’).\n\nThe pool, as foreseen in Article 29 of the Regulation, became fully operational on 7 January 2017. As\nset forth by Article 28 (3) of the Regulation, at least one forced-return monitor from the pool or from\nthe national monitoring system of the participating Member State, shall be present throughout the\nentire return operation from the pre-departure phase until the hand-over of the returnees in the third\ncountry (TC) of return, with the aim of ensuring that the fundamental rights safeguards are in place.\nThe mechanism acts de facto as a subsidiary guarantee to the Member States’ (hereinafter referred\nto as ‘MSs’) obligation to provide an effective forced-return monitoring system, as per Article 8(6) of\nthe Return Directive 2008/115/EC. Prior to the enactment of the Regulation, the Agency and the FRO\nhave constantly encouraged MSs to enhance the systematic use of their national monitoring bodies in\nall return operations. The strengthening of national monitoring mechanisms would have a positive\ndirect impact on the overall capacity to monitor return operations, both at national and European\nlevel.\n\nAs foreseen in Article 36 (4) of the Regulation, the forced-return monitors shall be provided with a\nspecific training covering all the aspects regarding fundamental rights, especially concerning the use\nof force and means of restraints, and access to international protection. In the period from 1 July to\n31 December 2018, FRO team was actively engaged in the following activities supporting return\nmatters:\n\ne On 16-17 August, FRO was engaged in the Coordination Meeting between Frontex and ICMPD on\nthe Forced-Return Monitoring Il (FReM Il) Project. The objectives of the meeting were to\ncoordinate the finalisation of the Forced-Return Monitoring III (FReM Ill) proposal and pending\ndeliverables of the Forced-Return Monitoring II (FReM Il) project in view of the FReM Il closing\nconference and 5th project steering group (PSG) meeting (23-24 October 2018, Nuremberg,\nGermany) with the participation of Frontex European Centre for Returns (ECRET) - FRO did not\nattend due to an extended sick leave.\n\ne On 11 September, FRO presented the ‘Update on Forced-return monitoring reports in Frontex\nreturn operations’ in the 1st half of 2018, during the 49th Meeting with Direct Contact Points in\nReturn Matters (DCP) in Vienna.\n\n \n\nEEE EEE\n\nFrontex - European Border and Coast Guard Agency\nwww. frontex.europa.eu | Pl. Europejski 6, 00-844 Warsaw, Poland | Tel. +48 22 205 95 00 | Fax +48 22 205 95 01",
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"content": "e On 10 October 2018, a FRO team member delivered a presentation of FR in return activities\ndelivered in the course of familiarisation visit of the representatives from Gambia.\n\ne On 12 October 2018, aFRO team member delivered a speech at the AMIF Conference “The National\nGuarantor and the protection of fundamental rights in forced return operations: a survey over two\nyears of monitoring activities” in Rome.\n\ne On 18 October, a FRO team member participated and monitored the implementation of the\nreadmission operation from Greece to Turkey in Lesvos.\n\ne On 26 November 2018, a FRO team member delivered a speech at the international conference on\n“Monitoring returns strengthening fundamental rights” in Athens. The conference was organized\nby the Greek Ombudsman Office, with the support of the Asylum, Migration and Integration Fund\n(AMIF).\n\ne On 27 November 2018, a FRO team member delivered a presentation at the Workshop on\nharmonization of procedures related to medical assistance in return operations in Frontex HQ.\n\ne On 14 December 2018, a FRO team member provided a presentation on “Conditions for action and\ngood practices” during the IPCAN Seminar on the Police conduct of law enforcement services in\ntheir relationships with migrants in Europe in Paris.\n\ne On 18 December 2018, FRO team members participated and monitored the implementation of a\njoint return operation to Gambia, organised by Germany.\n\nObservations of the Fundamental Rights Officer\n\nIn the present Observations FRO provides an overview of the findings and conclusions from the 85\nreports submitted by the forced-return monitors activated from the pool and 21 reports received\nfrom national monitors. FRO also highlights examples of good practices for the consideration of both\nthe Management Board and the Executive Director as well as recommendations to act upon in order\nto ensure fundamental rights compliance during the Agency’s return activities.\n\nIn line with the Regulation, complemented by the Guide for Joint Return Operations by Air co-\nordinated by Frontex, FRO has the mandate to monitor any return operation as part of the overall\nsupport to the Agency monitoring system of FR. In exercising of the mandate, FRO team members\nparticipated and monitored two operations (return and readmission) in the period concerned. The\nobservations collected in the course of both missions are included and complement the present report\nwhereby FRO monitoring activities do not replace the MS’ obligation to monitor forced return\noperations.\n\nAccording to the information provided in the Frontex Evaluation Report on Return Operations in the\n2\"d Semester of 2018, a total of 180 return operations were co-ordinated by Frontex, out of which 119\nwere physically monitored. Notably, during the reporting period, all of the Agency’s supported\nCollecting Joint Return Operations had on-board a forced-return monitor from the pool or from a\nnational monitoring system of the participating MSs through the entire return operation, as foreseen\nin Article 28 (3) of the Regulation.\n\nIn general terms, FRO notes that there are no Serious Incident Reports submitted by participants in\nthe operations. However, there have been a number of incidents reported by the monitors, which\ntriggered follow up and are underlined in this report. FRO wishes to express concern over the different\nunderstanding of incidents among the participants and encourages the authorities of the MS as well\nas the Agency to use, especially in training activities, the Observations of the FRO for training purposes\nof escorts and escort leaders so that all participants in the operation share a common understanding\nof when an incident can negatively impact fundamental rights.\n\n2/6",
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"content": "1. _Preparation of return operations\n\nAs provided in Article 4 of the Code of Conduct for Return Operations (ROs) and Return Interventions\n(Rls) (hereinafter “the CoC”) coordinated or organised by Frontex, the Agency shall ensure that ROs\nand Ris are to be conducted in a humane manner and in compliance with fundamental rights. In order\nto achieve this goal, there is a need to provide sufficient and adequate safeguards already in the\npreparation phase of the RO and/or Ri. The comments by the forced-return monitors related to the\npreparation of the operation that should be taken into consideration are the following:\n\ne In accordance with several monitoring reports received, a proper briefing about the whole\noperation was missing in numerous return operations. As stipulated in Article 16 the CoC, prior to\n\nthe start of the operation, forced-return monitors should be informed about the number, origin\n\nand vulnerabilities and/or special considerations of returnees. FRO underlines that in detailed\nbriefing escort leader should inform the participants of return operations about the list of\n\nreturnees, seating plan, embarkation and in-flight procedures, movements on board, access to the\ntoilettes, hand-over of personal belongings, and the security, including use of coercive measures.\nFurthermore, FRO recommends to provide the monitor with an estimated time and location for\nthe briefing as soon as contact is established. This would allow the monitor to choose suitable\nflights or other transport so as to arrive on time for the briefing and the rest of the pre-departure\nphase.\n\ne In some reported cases, the Implementation Plan was not available to the monitors before the\noperation. In one case it was reported that only after intervention of Frontex staff the\nImplementation Plan and other relevant documents were shared with the monitor. In this context\nFRO recommends the Implementation Plan should be distributed in advance, at least 2-3 days\nahead of the return operation.\n\ne As provided in the Guide for Joint Return Operations by Air co-ordinated by Frontex, the gender\nand age of the returnees, as well as the experience and the language skills of the forced-return\nescorts should be taken into account when assigning them to the return operation. In accordance\nwith some monitoring reports received, there is a recurrent need to increase the number of\nfemale forced-return escorts, to ensure adequate escorting in operations when women and\nfamilies with children are to be returned. The presence of a female officer in this situation is a\nbasic standard. In other reported cases, female escorts were not enough in numbers by comparison\nto the amount of pregnant women and children to be returned. FRO agrees with the monitors that\nthe presence of female officers should be ensured throughout all phases of the implementation of\nan operation involving women and children as to ensure the effective protection of the Charter of\nFundamental Rights of the EU, especially the rights to privacy, integrity and human dignity and to\nensure that potential gender specific needs are identified and addressed. According to Frontex\nstandards, a female returnee should be escorted by at least one female escort. In accordance with\nthe Guideline 18 of the Twenty Guidelines of the Committee of Ministers of the Council of Europe\non Forced Return, “Member States are encouraged to ensure that at least one escort should be of\nthe same sex as the returnee”. This may facilitate the communication between the returnee and\nthe escort. In certain situation it may help preserve the dignity and intimacy of the returnee. The\nFrontex Implementation Plan also provides that “escorts of the same gender of the returnee are\nadvised to jam the toilet door open and to observe the returnee”.\n\ne In accordance with monitoring reports received, it was noticed a lack of a proper ventilation\nsystem in the waiting room in the airport. It was also observed the temperature should be adequate\nin the room where the returnees are located in the pre-departure phase as it increases discomfort\namong the returnees as well as participants.\n\ne As reported, in one operation there was a need of recording on video some elements of return\n\noperation by one of the present monitor. Pursuant to Article 13 of the CoC, any form of recording\nduring a JRO is possible only when specifically agreed between relevant MS, Frontex and the\ncompany operating the means of transport, and in compliance with applicable data protection\nlegislation. However, the above-mentioned requirement was not addressed in advance from the\nside of monitoring institution. In sum and as underlined by FRO the information regarding\nrecording of the return operation should be requested and agreed in advance to the MS\nparticipants and returnees, which was apparently not the case.\nLikewise, escorts and returnees should be informed in advance about planned media coverage in\nall cases. FRO notes that this situation may be clearly viewed as an interference with the right to\nprivacy of the returnees and participants, and the rights of the child in case those are involved,\nand should be avoided and discussed before preparation of flights.\n\nIM\n\n3/6",
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"content": "As reported, in one operation there were not many seats left empty, which can create some\ndifficulties in potential handling of situation with medical emergency.\n\nIn one case the poor labelling of luggage of returnees was observed, which can create some\ntensions during the procedure of hand-over and should be avoided.\n\nIn one reported case, the mandate of Frontex representative was observed not to be clearly\ndefined, e.g.: his/her tasks and role in case of potential incidents.\n\n2. Communication and right to information\n\nWith regards to Article 6 of the CoC, the competent authorities of the MSs as well as the other\nparticipants shall seek cooperation with each person being returned, at all stages of the return\noperation. Following the observations received, there are still some issues that should be taken into\nconsideration to improve communication between returnees and participants of return operation, as\nhighlighted by the forced-return monitors. Namely:\n\nIn accordance with number of monitoring reports, in several operations no interpreters were\npresent during the flight or the hand-over in the Third Country. FRO recommends the increasing\ninvolvement of interpreters throughout all phases of forced-return operations to be carried out,\nwhich results clearly in the returnees’ better understanding of the procedures as well as lower\nanxiousness and possible aggressive reactions of the persons during the operations. FRO further\nsuggests ECRET to take steps to gradually report about the exact number of interpreters in return\noperations in their bi-annual Evaluation Report and encourage their presence as a means to\nenhance cooperation and communication during return operations, depending on the language\nrequirement, when needed. FRO recommends that depending on the assessment of escorts and\nreturnees needs and language skills the MS should provide with the suitable interpreters. During\nthe hand-over of personal belongings to the returnees, an interpreter and medical personnel should\nbe present in order to avoid any potential misunderstandings.\n\n3. Medical issues\n\nThe presence of medical staff (doctor, nurse or paramedic) should be ensured in all operations\ncoordinated or organised by Frontex pursuant to Article 14 of the CoC. It remains as one of the key\naspect of guarantee for fundamental rights in the work of all participants in return:\n\nIn accordance with one monitoring report, information of medical cases was provided at very short\nnotice from the MS national authorities to the doctor on board.\n\nIn accordance with one monitoring report, the national authorities of MSs did not use “fit-to-\ntravel” forms. As already raised in the Fundamental Officer’s Observations to return operations\nin previous semesters, national authorities are to set up the rules on issuance of fit-to-fly\ncertificate, ideally as a mandatory requirement, in line with the CPT standards.\n\nAs noticed, in one flight unnecessary information was announced about the medical situation of\nsome returnees containing some sensitive information that could, in the monitor’s opinion,\npotentially put into risk returnees in their countries of origin.\n\nIn some reported cases, it was noticed the absence of a paramedic as a back-up to the doctor,\nwhich was considered as a potential risk to returnees as well as to participants. In some cases,\nthere were no doctor or paramedic in detention center. In another reported case, a doctor was\npresent at all phases, but was not aware of the medical records. In this regard FRO recommends\nall crucial medical information should be shared with the doctor of the operation. The doctor\nshould examine the returnees at the pre-departure phase.\n\nIn one reported case the sedative was given to the returnee (Valium) to make him calm.\n\nIn accordance with a monitoring report, the monitor was not allowed to receive the information\nabout medical state of returnees. Pursuant to Article 16 of the Code of Conduct, the monitors\nmust have the unimpeded access to all relevant information concerning the return operation.\nTherefore, it is recommended that medical confidentiality is not used to exclude monitor from any\ninformation about the medical conditions of returnees or not allow to enter without specific\nreasons to the areas where the medical staff is active.\n\n41/6",
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"content": "4. Right to privacy and property of persons returned\n\nIn the 2\"d semester of 2018, forced-return monitors reported about the incidents that allegedly might\nresult in a violation of the right to property of the persons pending removal, as follows:\n\ne As noticed in some monitoring reports, valuable personal belongings should not been placed in the\nbaggage hold of the aircraft. They should be stored in the sealed envelope or a plastic bag and\nmarked with the name of returnee, and kept by the respective escort. FRO would recommend to\nstrengthen luggage handling procedures in the upcoming revision of the Guide on JROSs currently\nongoing within the Agency. This element has been already highlighted by FRO in her observations\ncovering the 1° semester of 2018.\n\n5. Treatment of vulnerable groups\n\nIn the preparation and throughout the implementation of operations, special consideration should be\ngiven to vulnerable persons such as children, disabled persons, elderly people, pregnant women, etc.\nSome observations provided by the forced-returned monitors include:\n\ne In general, as a good practice, it was observed and recommended to let children play with toys\nand games. The establishment of a mobile playroom for children in the return terminal of the\nairport should be arranged for return operations, in particular with a high number of children to\nbe returned. In this context FRO recommends to provide an adequate special care for families\nwith children, including diapers and baby food to be accessible prior to embarkation as well as\nduring the flight, which is a good practice to be followed.\n\ne Some forced-return monitors observed lack of individual treatment to be guaranteed for families\nwith children and reported that families with children should have been enabled to board the\naircraft separately and should have been seated separately from other returnees. FRO considers\nas a good practice, that vulnerable persons shall board the aircraft separately and shall be seated\nseparately from other potentially violent returnees.\n\ne As reported, it was observed that the unaccompanied minors have been returned in two\noperations, which is not in accordance with Frontex general rules on conducting return as well as\nin contradiction to the Annex I of the Implementation Plan. Reported incidents were conducted in\naccordance with national law, but in contradiction with Frontex procedures. On the basis of those\nincidents a specific safeguard tool on unaccompanied minors was introduced into FAR system. FRO\nappreciates the development in this regard and at the same time recommends to continue a strong\npolicy on raising awareness on a protection of the best interest of the child taking into account\n\nthat unaccompanied minors are not allowed in return operations organised or coordinated by\nFrontex.\n\n6. Use of force and means of restraint\n\nArticle 7 of the CoC reflects the international and European standards on the use of force and means\nof restraint, which can be applied only in accordance to necessity, legality and proportionality\nprinciples, or in response to an immediate and serious risk. Any decision to use coercive measures has\nto be based on an individual risk assessment. The use of force require the application of specific\ntechniques employed by trained staff, who is also submitted to periodical refresher training sessions,\notherwise, although the mission of carrying out a forced repatriation is accomplished, potential risks\nto the physical safety and dignity of returnees might exist.\n\ne In several reported cases, the means of restraints were not used in accordance with principle of\nnecessity and proportionality, for instance body-cuffing for considerable amount of time with no\nfurther explanation, but only a generic “assessment of authorities for a risk of potential violence”.\nIn this regard FRO strongly recommends not to use restraints as a precaution measure, especially\nwhen they are on children, as this usage should always be based on a solid individual risk\nassessment.\n\ne As noticed in some monitoring reports, the list of authorised/forbidden restraints was not\nprovided to the monitor. According to FRO, more attention should be paid in this regard to Article\n7.4 of the CoC referring to the proper and in advance distribution of the list of authorised\n\nLmmmmm———nn\n\n5/6",
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"content": "restraints. During some CROs, there were no presence of the TC monitors. FRO continues to\nencourage the presence of TC monitors together with the MS or forced return monitor from the\npool, as an additional safeguard to ensure the follow up of possible incidents with the TC\nauthorities. Accountability is a matter of concern in this hypothetical challenging situations.\n\ne As reported, the used means of restraints did not match the items defined in the Frontex\nImplementation Plan.\n\ne Inaccordance with some monitoring reports, at several occasions there were escorts’ hands placed\nover the face of returnee (even up to 7 escorts holding one returnee being in body-cuffs and\nrepeatedly deprived of vision and had a pressure applied on his face). According to the monitor’s\ntraining it is not acceptable for the escorts to use such practice.\n\n7. Basic needs\n\ne Whenever feasible, monitors suggest that returnees should be provided with food and freely\n\navailable drinking water upon their request, and without long break between deliveries.\nAccording to some monitors, waiting time and delays may affect the operation. In some cases, no\n\nfood and water was provided during the pre-departure phase, irrespective of the time and the\nduration of the procedure. In one situation, The PMS escort-leader provided water to all, at his\nexpense.\n\n8. Hand-over procedure\n\ne The monitor identified a judicial risk in making the handover on the territory of Third Country\ninstead of at the door of the aircraft. In the mentioned case the handover took place in the Third\nCountry airport terminal.\n\ne The monitor reported that in one case the escort leader gave a list of returnees to the authorities\nof Third Country with information regarding personal risk assessment and the reasons of their\nleaving of Member State. Such situation can create potential risks on the returnee side in their\ncountry of origin. In this regard, FRO recommends a _proper preparation of documents and\n\nprocedures in the hand-over procedure.\n\n9. Complaints mechanism\n\ne As noticed in numerous monitoring reports, there were no Frontex complaint forms available\nduring the return operation. Information to be provided to returnees on the Frontex complaints\n\nmechanism was generally missing. In one return operation, a complaint was submitted to Frontex\nregarding alleged violation of fundamental rights of a returnee (types of allegation: human dignity\n(Art. 1 of the EU Charter); prohibition of torture and inhuman or degrading treatment or\npunishment (Art. 4 of the EU Charter). In this regard, FRO recommends to guarantee the\navailability of complaint forms and information leaflets in operational areas, if available in the\nlanguage spoken by the returnee. Furthermore, FRO addresses the importance of the duty to\ninform imposed on escort leaders and Frontex staff about the right to submit a complaint.\n\n10. Further observations from monitors and FRO\n\ne Some questions addressed in the FRO Observations covering 1° semester of 2018 are still\nconsidered to be valid, i.e.: several monitoring bodies addressed and asked about the possibility\nto deploy two monitors from the pool to operations where there are many returnees or long-haul\nflights are foreseen. Another recurrent suggestion was to extend the mandate of the pool of\nmonitors to cover all MSs participating in a JRO, and not only the contingent of the MS requesting\na monitor, to ensure a European monitoring component to the pool. Further discussion was also\nadvisable on the sharing of the report from a pool monitor -requested by a MS- to the monitoring\nbodies of other MS that take part in that operation.\n\n° Following certain monitor’s observation from a flight, FRO recommend a good practice to allow\nreturnee to use the interactive media when they are available on the plane.\n\na\n\n6/6",
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