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Fundamental Rights Officer’s Observations
to return operations conducted in the 2"4 Semester of 2018

1 July - 31 December 2018

Background and overview of activities

In accordance with Article 28 (8) of the European Border and Coast Guard Regulation (hereafter
referred to as ‘the Regulation’), the Fundamental Rights Officer (FRO) shall provide observations on
fundamental rights covering all return operations. Her observations are attached to the Executive
Director’s semi-annual evaluation report to the Management Board. The reporting period is therefore
adapted to the submission of the evaluation report by the Executive Director, covering the 2"
semester of 2018. FRO Observations from the first semester of 2018 (January- June 2018) were shared
with the Member States’ Direct Contact Points on Returns, Member States’ return monitoring bodies
and monitors from the pool of forced return monitors (hereinafter referred to as ‘the pool’).

The pool, as foreseen in Article 29 of the Regulation, became fully operational on 7 January 2017. As
set forth by Article 28 (3) of the Regulation, at least one forced-return monitor from the pool or from
the national monitoring system of the participating Member State, shall be present throughout the
entire return operation from the pre-departure phase until the hand-over of the returnees in the third
country (TC) of return, with the aim of ensuring that the fundamental rights safeguards are in place.
The mechanism acts de facto as a subsidiary guarantee to the Member States’ (hereinafter referred
to as ‘MSs’) obligation to provide an effective forced-return monitoring system, as per Article 8(6) of
the Return Directive 2008/115/EC. Prior to the enactment of the Regulation, the Agency and the FRO
have constantly encouraged MSs to enhance the systematic use of their national monitoring bodies in
all return operations. The strengthening of national monitoring mechanisms would have a positive
direct impact on the overall capacity to monitor return operations, both at national and European
level.

As foreseen in Article 36 (4) of the Regulation, the forced-return monitors shall be provided with a
specific training covering all the aspects regarding fundamental rights, especially concerning the use
of force and means of restraints, and access to international protection. In the period from 1 July to
31 December 2018, FRO team was actively engaged in the following activities supporting return
matters:

e On 16-17 August, FRO was engaged in the Coordination Meeting between Frontex and ICMPD on
the Forced-Return Monitoring Il (FReM Il) Project. The objectives of the meeting were to
coordinate the finalisation of the Forced-Return Monitoring III (FReM Ill) proposal and pending
deliverables of the Forced-Return Monitoring II (FReM Il) project in view of the FReM Il closing
conference and 5th project steering group (PSG) meeting (23-24 October 2018, Nuremberg,
Germany) with the participation of Frontex European Centre for Returns (ECRET) - FRO did not
attend due to an extended sick leave.

e On 11 September, FRO presented the ‘Update on Forced-return monitoring reports in Frontex
return operations’ in the 1st half of 2018, during the 49th Meeting with Direct Contact Points in
Return Matters (DCP) in Vienna.

 

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e On 10 October 2018, a FRO team member delivered a presentation of FR in return activities
delivered in the course of familiarisation visit of the representatives from Gambia.

e On 12 October 2018, aFRO team member delivered a speech at the AMIF Conference “The National
Guarantor and the protection of fundamental rights in forced return operations: a survey over two
years of monitoring activities” in Rome.

e On 18 October, a FRO team member participated and monitored the implementation of the
readmission operation from Greece to Turkey in Lesvos.

e On 26 November 2018, a FRO team member delivered a speech at the international conference on
“Monitoring returns strengthening fundamental rights” in Athens. The conference was organized
by the Greek Ombudsman Office, with the support of the Asylum, Migration and Integration Fund
(AMIF).

e On 27 November 2018, a FRO team member delivered a presentation at the Workshop on
harmonization of procedures related to medical assistance in return operations in Frontex HQ.

e On 14 December 2018, a FRO team member provided a presentation on “Conditions for action and
good practices” during the IPCAN Seminar on the Police conduct of law enforcement services in
their relationships with migrants in Europe in Paris.

e On 18 December 2018, FRO team members participated and monitored the implementation of a
joint return operation to Gambia, organised by Germany.

Observations of the Fundamental Rights Officer

In the present Observations FRO provides an overview of the findings and conclusions from the 85
reports submitted by the forced-return monitors activated from the pool and 21 reports received
from national monitors. FRO also highlights examples of good practices for the consideration of both
the Management Board and the Executive Director as well as recommendations to act upon in order
to ensure fundamental rights compliance during the Agency’s return activities.

In line with the Regulation, complemented by the Guide for Joint Return Operations by Air co-
ordinated by Frontex, FRO has the mandate to monitor any return operation as part of the overall
support to the Agency monitoring system of FR. In exercising of the mandate, FRO team members
participated and monitored two operations (return and readmission) in the period concerned. The
observations collected in the course of both missions are included and complement the present report
whereby FRO monitoring activities do not replace the MS’ obligation to monitor forced return
operations.

According to the information provided in the Frontex Evaluation Report on Return Operations in the
2"d Semester of 2018, a total of 180 return operations were co-ordinated by Frontex, out of which 119
were physically monitored. Notably, during the reporting period, all of the Agency’s supported
Collecting Joint Return Operations had on-board a forced-return monitor from the pool or from a
national monitoring system of the participating MSs through the entire return operation, as foreseen
in Article 28 (3) of the Regulation.

In general terms, FRO notes that there are no Serious Incident Reports submitted by participants in
the operations. However, there have been a number of incidents reported by the monitors, which
triggered follow up and are underlined in this report. FRO wishes to express concern over the different
understanding of incidents among the participants and encourages the authorities of the MS as well
as the Agency to use, especially in training activities, the Observations of the FRO for training purposes
of escorts and escort leaders so that all participants in the operation share a common understanding
of when an incident can negatively impact fundamental rights.

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1. _Preparation of return operations

As provided in Article 4 of the Code of Conduct for Return Operations (ROs) and Return Interventions
(Rls) (hereinafter “the CoC”) coordinated or organised by Frontex, the Agency shall ensure that ROs
and Ris are to be conducted in a humane manner and in compliance with fundamental rights. In order
to achieve this goal, there is a need to provide sufficient and adequate safeguards already in the
preparation phase of the RO and/or Ri. The comments by the forced-return monitors related to the
preparation of the operation that should be taken into consideration are the following:

e In accordance with several monitoring reports received, a proper briefing about the whole
operation was missing in numerous return operations. As stipulated in Article 16 the CoC, prior to

the start of the operation, forced-return monitors should be informed about the number, origin

and vulnerabilities and/or special considerations of returnees. FRO underlines that in detailed
briefing escort leader should inform the participants of return operations about the list of

returnees, seating plan, embarkation and in-flight procedures, movements on board, access to the
toilettes, hand-over of personal belongings, and the security, including use of coercive measures.
Furthermore, FRO recommends to provide the monitor with an estimated time and location for
the briefing as soon as contact is established. This would allow the monitor to choose suitable
flights or other transport so as to arrive on time for the briefing and the rest of the pre-departure
phase.

e In some reported cases, the Implementation Plan was not available to the monitors before the
operation. In one case it was reported that only after intervention of Frontex staff the
Implementation Plan and other relevant documents were shared with the monitor. In this context
FRO recommends the Implementation Plan should be distributed in advance, at least 2-3 days
ahead of the return operation.

e As provided in the Guide for Joint Return Operations by Air co-ordinated by Frontex, the gender
and age of the returnees, as well as the experience and the language skills of the forced-return
escorts should be taken into account when assigning them to the return operation. In accordance
with some monitoring reports received, there is a recurrent need to increase the number of
female forced-return escorts, to ensure adequate escorting in operations when women and
families with children are to be returned. The presence of a female officer in this situation is a
basic standard. In other reported cases, female escorts were not enough in numbers by comparison
to the amount of pregnant women and children to be returned. FRO agrees with the monitors that
the presence of female officers should be ensured throughout all phases of the implementation of
an operation involving women and children as to ensure the effective protection of the Charter of
Fundamental Rights of the EU, especially the rights to privacy, integrity and human dignity and to
ensure that potential gender specific needs are identified and addressed. According to Frontex
standards, a female returnee should be escorted by at least one female escort. In accordance with
the Guideline 18 of the Twenty Guidelines of the Committee of Ministers of the Council of Europe
on Forced Return, “Member States are encouraged to ensure that at least one escort should be of
the same sex as the returnee”. This may facilitate the communication between the returnee and
the escort. In certain situation it may help preserve the dignity and intimacy of the returnee. The
Frontex Implementation Plan also provides that “escorts of the same gender of the returnee are
advised to jam the toilet door open and to observe the returnee”.

e In accordance with monitoring reports received, it was noticed a lack of a proper ventilation
system in the waiting room in the airport. It was also observed the temperature should be adequate
in the room where the returnees are located in the pre-departure phase as it increases discomfort
among the returnees as well as participants.

e As reported, in one operation there was a need of recording on video some elements of return

operation by one of the present monitor. Pursuant to Article 13 of the CoC, any form of recording
during a JRO is possible only when specifically agreed between relevant MS, Frontex and the
company operating the means of transport, and in compliance with applicable data protection
legislation. However, the above-mentioned requirement was not addressed in advance from the
side of monitoring institution. In sum and as underlined by FRO the information regarding
recording of the return operation should be requested and agreed in advance to the MS
participants and returnees, which was apparently not the case.
Likewise, escorts and returnees should be informed in advance about planned media coverage in
all cases. FRO notes that this situation may be clearly viewed as an interference with the right to
privacy of the returnees and participants, and the rights of the child in case those are involved,
and should be avoided and discussed before preparation of flights.

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As reported, in one operation there were not many seats left empty, which can create some
difficulties in potential handling of situation with medical emergency.

In one case the poor labelling of luggage of returnees was observed, which can create some
tensions during the procedure of hand-over and should be avoided.

In one reported case, the mandate of Frontex representative was observed not to be clearly
defined, e.g.: his/her tasks and role in case of potential incidents.

2. Communication and right to information

With regards to Article 6 of the CoC, the competent authorities of the MSs as well as the other
participants shall seek cooperation with each person being returned, at all stages of the return
operation. Following the observations received, there are still some issues that should be taken into
consideration to improve communication between returnees and participants of return operation, as
highlighted by the forced-return monitors. Namely:

In accordance with number of monitoring reports, in several operations no interpreters were
present during the flight or the hand-over in the Third Country. FRO recommends the increasing
involvement of interpreters throughout all phases of forced-return operations to be carried out,
which results clearly in the returnees’ better understanding of the procedures as well as lower
anxiousness and possible aggressive reactions of the persons during the operations. FRO further
suggests ECRET to take steps to gradually report about the exact number of interpreters in return
operations in their bi-annual Evaluation Report and encourage their presence as a means to
enhance cooperation and communication during return operations, depending on the language
requirement, when needed. FRO recommends that depending on the assessment of escorts and
returnees needs and language skills the MS should provide with the suitable interpreters. During
the hand-over of personal belongings to the returnees, an interpreter and medical personnel should
be present in order to avoid any potential misunderstandings.

3. Medical issues

The presence of medical staff (doctor, nurse or paramedic) should be ensured in all operations
coordinated or organised by Frontex pursuant to Article 14 of the CoC. It remains as one of the key
aspect of guarantee for fundamental rights in the work of all participants in return:

In accordance with one monitoring report, information of medical cases was provided at very short
notice from the MS national authorities to the doctor on board.

In accordance with one monitoring report, the national authorities of MSs did not use “fit-to-
travel” forms. As already raised in the Fundamental Officer’s Observations to return operations
in previous semesters, national authorities are to set up the rules on issuance of fit-to-fly
certificate, ideally as a mandatory requirement, in line with the CPT standards.

As noticed, in one flight unnecessary information was announced about the medical situation of
some returnees containing some sensitive information that could, in the monitor’s opinion,
potentially put into risk returnees in their countries of origin.

In some reported cases, it was noticed the absence of a paramedic as a back-up to the doctor,
which was considered as a potential risk to returnees as well as to participants. In some cases,
there were no doctor or paramedic in detention center. In another reported case, a doctor was
present at all phases, but was not aware of the medical records. In this regard FRO recommends
all crucial medical information should be shared with the doctor of the operation. The doctor
should examine the returnees at the pre-departure phase.

In one reported case the sedative was given to the returnee (Valium) to make him calm.

In accordance with a monitoring report, the monitor was not allowed to receive the information
about medical state of returnees. Pursuant to Article 16 of the Code of Conduct, the monitors
must have the unimpeded access to all relevant information concerning the return operation.
Therefore, it is recommended that medical confidentiality is not used to exclude monitor from any
information about the medical conditions of returnees or not allow to enter without specific
reasons to the areas where the medical staff is active.

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4. Right to privacy and property of persons returned

In the 2"d semester of 2018, forced-return monitors reported about the incidents that allegedly might
result in a violation of the right to property of the persons pending removal, as follows:

e As noticed in some monitoring reports, valuable personal belongings should not been placed in the
baggage hold of the aircraft. They should be stored in the sealed envelope or a plastic bag and
marked with the name of returnee, and kept by the respective escort. FRO would recommend to
strengthen luggage handling procedures in the upcoming revision of the Guide on JROSs currently
ongoing within the Agency. This element has been already highlighted by FRO in her observations
covering the 1° semester of 2018.

5. Treatment of vulnerable groups

In the preparation and throughout the implementation of operations, special consideration should be
given to vulnerable persons such as children, disabled persons, elderly people, pregnant women, etc.
Some observations provided by the forced-returned monitors include:

e In general, as a good practice, it was observed and recommended to let children play with toys
and games. The establishment of a mobile playroom for children in the return terminal of the
airport should be arranged for return operations, in particular with a high number of children to
be returned. In this context FRO recommends to provide an adequate special care for families
with children, including diapers and baby food to be accessible prior to embarkation as well as
during the flight, which is a good practice to be followed.

e Some forced-return monitors observed lack of individual treatment to be guaranteed for families
with children and reported that families with children should have been enabled to board the
aircraft separately and should have been seated separately from other returnees. FRO considers
as a good practice, that vulnerable persons shall board the aircraft separately and shall be seated
separately from other potentially violent returnees.

e As reported, it was observed that the unaccompanied minors have been returned in two
operations, which is not in accordance with Frontex general rules on conducting return as well as
in contradiction to the Annex I of the Implementation Plan. Reported incidents were conducted in
accordance with national law, but in contradiction with Frontex procedures. On the basis of those
incidents a specific safeguard tool on unaccompanied minors was introduced into FAR system. FRO
appreciates the development in this regard and at the same time recommends to continue a strong
policy on raising awareness on a protection of the best interest of the child taking into account

that unaccompanied minors are not allowed in return operations organised or coordinated by
Frontex.

6. Use of force and means of restraint

Article 7 of the CoC reflects the international and European standards on the use of force and means
of restraint, which can be applied only in accordance to necessity, legality and proportionality
principles, or in response to an immediate and serious risk. Any decision to use coercive measures has
to be based on an individual risk assessment. The use of force require the application of specific
techniques employed by trained staff, who is also submitted to periodical refresher training sessions,
otherwise, although the mission of carrying out a forced repatriation is accomplished, potential risks
to the physical safety and dignity of returnees might exist.

e In several reported cases, the means of restraints were not used in accordance with principle of
necessity and proportionality, for instance body-cuffing for considerable amount of time with no
further explanation, but only a generic “assessment of authorities for a risk of potential violence”.
In this regard FRO strongly recommends not to use restraints as a precaution measure, especially
when they are on children, as this usage should always be based on a solid individual risk
assessment.

e As noticed in some monitoring reports, the list of authorised/forbidden restraints was not
provided to the monitor. According to FRO, more attention should be paid in this regard to Article
7.4 of the CoC referring to the proper and in advance distribution of the list of authorised

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restraints. During some CROs, there were no presence of the TC monitors. FRO continues to
encourage the presence of TC monitors together with the MS or forced return monitor from the
pool, as an additional safeguard to ensure the follow up of possible incidents with the TC
authorities. Accountability is a matter of concern in this hypothetical challenging situations.

e As reported, the used means of restraints did not match the items defined in the Frontex
Implementation Plan.

e Inaccordance with some monitoring reports, at several occasions there were escorts’ hands placed
over the face of returnee (even up to 7 escorts holding one returnee being in body-cuffs and
repeatedly deprived of vision and had a pressure applied on his face). According to the monitor’s
training it is not acceptable for the escorts to use such practice.

7. Basic needs

e Whenever feasible, monitors suggest that returnees should be provided with food and freely

available drinking water upon their request, and without long break between deliveries.
According to some monitors, waiting time and delays may affect the operation. In some cases, no

food and water was provided during the pre-departure phase, irrespective of the time and the
duration of the procedure. In one situation, The PMS escort-leader provided water to all, at his
expense.

8. Hand-over procedure

e The monitor identified a judicial risk in making the handover on the territory of Third Country
instead of at the door of the aircraft. In the mentioned case the handover took place in the Third
Country airport terminal.

e The monitor reported that in one case the escort leader gave a list of returnees to the authorities
of Third Country with information regarding personal risk assessment and the reasons of their
leaving of Member State. Such situation can create potential risks on the returnee side in their
country of origin. In this regard, FRO recommends a _proper preparation of documents and

procedures in the hand-over procedure.

9. Complaints mechanism

e As noticed in numerous monitoring reports, there were no Frontex complaint forms available
during the return operation. Information to be provided to returnees on the Frontex complaints

mechanism was generally missing. In one return operation, a complaint was submitted to Frontex
regarding alleged violation of fundamental rights of a returnee (types of allegation: human dignity
(Art. 1 of the EU Charter); prohibition of torture and inhuman or degrading treatment or
punishment (Art. 4 of the EU Charter). In this regard, FRO recommends to guarantee the
availability of complaint forms and information leaflets in operational areas, if available in the
language spoken by the returnee. Furthermore, FRO addresses the importance of the duty to
inform imposed on escort leaders and Frontex staff about the right to submit a complaint.

10. Further observations from monitors and FRO

e Some questions addressed in the FRO Observations covering 1° semester of 2018 are still
considered to be valid, i.e.: several monitoring bodies addressed and asked about the possibility
to deploy two monitors from the pool to operations where there are many returnees or long-haul
flights are foreseen. Another recurrent suggestion was to extend the mandate of the pool of
monitors to cover all MSs participating in a JRO, and not only the contingent of the MS requesting
a monitor, to ensure a European monitoring component to the pool. Further discussion was also
advisable on the sharing of the report from a pool monitor -requested by a MS- to the monitoring
bodies of other MS that take part in that operation.

° Following certain monitor’s observation from a flight, FRO recommend a good practice to allow
returnee to use the interactive media when they are available on the plane.

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