= FRONTEX EI

EUROPEAN BORDER AND COAST GUARD AGENCY Warsaw, 6 March 2020

VERBeRISEE
en |

XXV FUNDAMENTAL RIGHTS OFFICER REPORT
for the Management Board

Reporting period: (1 November 2019 - 29 February 2020)

Pursuant to Article 109 of the European Border and Coast Guard Regulation (EBCG) 2019/1896 (hereinafter “the EBCG
Regulation”), the Fundamental Rights Officer (FRO) is mandated to perform various tasks. Being entrusted an independent
function by the EBCG Regulation (Article 100(2)), the FRO hereby intends, in line with Article 109(4), to report to the
Management Board concerning the fulfilment of her tasks and responsibilities during the above reporting period.

The report is structured as follows:

1. Recommendations 4. Fundamental Rights 7. International and 10. Relations with
Monitors European Cooperation External Actors
Activities
2. Joint Operations 5. Fundamental Rights 8. Cooperation with the 11. Staffing
Strategy Consultative Forum (CF)
3. Return Operations 6. Capacity Building 9. Individual Complaints 12. Miscellaneous
Activities Mechanism (CM )

1. RECOMMENDATIONS

The first part summarizes FRO recommendations for the said reporting period in order to facilitate follow-up action from
the Management Board, in line with Article 109(4) and according to which “the Management Board shall ensure that action
is taken with regard to recommendations of the Fundamental Rights Officer.”

FRO recommends:

1. The basic guidelines on Fundamental Rights (FR) compliance during Frontex operations to be enhanced in the
course of 2020 with the support of the Frontex Consultative Forum and to subsequently consider the input from
Fundamental Rights Monitors (FRMs) after 6 months of operational support in 2021.

2. To continue supporting the process of finalization of the Frontex Fundamental Rights Strategy (FRS).

3. To finalize Frontex Complaints Rules.

4. To finalize FRO Rules of Independence (FRO draft shared with Frontex Senior Management and Management
Board).

5. To discuss FR impact assessment with Frontex Senior Management.

6. To allocate staff other that the FRMs to guarantee the comprehensive FR advice required in this crucial period
of early implementation of the new Regulation.

2. JOINT OPERATIONS

Pursuant to Article 80 (1) of the EBCG Regulation has the obligation to guarantee the protection of fundamental rights in
all its activities. The Regulation further foresees that FRO has the task of monitoring the Agency’s compliance with
fundamental rights and of promoting its respect (Article 109). For this purpose, FRO regularly reports to the Management
Board, and as such contributes to the mechanism for monitoring fundamental rights. Furthermore, FRO’s role as part of
the monitoring mechanism includes, inter alia, to act as a coordinator for Serious Incidents that involve alleged violations
of fundamental rights as set by Frontex Standard Operating Procedure on Serious Incident Reporting (SIR).? To this end,

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Frontex - European Border and Coast Guard Agency
www.frontex.europa.eu | Pl. Europejski 6, 00-844 Warsaw, Poland | Tel. +48 22 205 95 00 | Fax +48 22 205 95 01

FRO is deemed to provide an assessment and follow up the information received on the SIRs provided by the Agency and
Member States.

Serious Incidents Reporting (SIR)

During the reporting period, one SIR related to fundamental rights issues was received by the FRO.

 

The case is pending. Furthermore, FRO has devoted time to update pending SIRs and to conduct internal coordination in
relation to this matter.

OPLANS & FRO Observations

Under Article 109(2(e)) of the EBCG Regulation, FRO shall provide opinions on the operational plans.

a) OPLANSs received:
- _ OPLAN JO FPs 2020
= OPLAN JO Coordination Points 2020 Air
-  OPLAN JO FOA LAND 2020
- OPLAN JO FOA WB-ALB 2020
OPLAN JO THEMIS 2020
OPLAN JO POSEIDON 2020
- Rolling OPLAN 2020 for return operations
-  Frontex Operational Activity plan for Return (FOA-R) 2020
-  OPLAN JO Coordination Points 2020 Land

b) Observations by FRO provided to OPLANs for 2020 operational activities!
-  Frontex Operational Activity plan for Return (FOA-R) 2020 - FRO comments submitted on 29.11.2019
-  OPLAN JO FPs 2020 - FRO comments submitted on 20.12.2019
- Rolling OPLAN 2020 for return operations - FRO comments submitted on 9.01.2020
OPLAN JO Coordination Points 2020 Air - FRO comments submitted on 16.01.2020
OPLAN JO FOA LAND 2020 - FRO comments submitted on 16.01.2020
-  OPLAN JO FOA WB-ALB 2020 - FRO comments submitted on 17.01.2020
- OPLAN JO THEMIS 2020 - FRO observations submitted on 22.01.2020
=. OPLAN JO POSEIDON 2020 - FRO observations submitted on 27.01.2020
OPLAN JO Coordination Points 2020 Land - FRO comments submitted on 21.02.2020

Following Article 38(3), these should include:

>  A.description of tasks, including those requiring executive powers, and responsibilities including with regard to
respect for FR.

>  Areporting and evaluation scheme containing benchmarks for the evaluation report, including with regard to
the protection of fundamental rights.

> General instructions on how to ensure the safeguarding of fundamental rights during the operational activity of
the Agency.

>»  Procedures whereby persons in need of international protection, victims of trafficking in human beings,
unaccompanied minors and persons in vulnerable situation are directed to the competent national authorities
for appropriate assistance.

>  Procedures setting out a mechanism to receive and transmit to the Agency a complaint against all persons
participating in a joint operation or rapid border operation.

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In order to ensure the operational plans contain the fundamental rights safeguards as required by the EBCG Regulation,
FRO proposed draft instructions on how to ensure the safeguarding of fundamental rights during the operational activity
including complaints mechanism. The FR guidelines cover EBCG obligations as regards the protection of fundamental
rights, tasks and responsibilities of the deployed officers, specific FR safeguards on TC (Third Countries) observers,
references to Fundamental Rights Monitors, access to asylum and vulnerable groups.

The cooperation with neighbouring TC should be undertaken in full alignment with fundamental rights. In the context of
the Poseidon and Themis maritime operations, FRO expressed the need to enhance the quality and comprehensiveness of
the assessments of the situation in third countries, content and methodology, to be followed by the Members States as
well as by the Agency. FRO repeatedly calls for regular updates and use of a wide range of sources to ensure that the
information collected to assess the situation serves the purpose of preventing violations of the principle of non-
refoulement.

The national referral procedures shall be known and available for the deployed officers in the operational plan or annexed
to the operational plan, as foreseen in Art 38.4, and not a mere separate document uploaded to FOSS. In January, FRO
followed up on the Questionnaire on referrals previously shared with Member States (MS) in order to update relevant
information for the 2020 operational cycle.

Recommendations and/or follow-up:
To monitor implementation of the Operational Plans (OPLANs), including with regard to the instructions on

how to ensure the safeguarding of fundamental rights during the operational activity including complaints
mechanism.

Update the referral related information and annex it to the OPLANs.
To enhance general assessment of fundamental rights situation in the TC.

 

FERs & FRO Observations

Pursuant to Article 47 of the EBCG Regulation, the Executive Director shall transmit detailed evaluation reports within 60
days following the end of the Agency’s operational activities to the Management Board, together with the observations
of the FRO. During the reporting period, the FRO has received and provided opinions on the following:

a) FER JOs received:
-  FER JO Alexis 2019
- _ FER JO Minerva 2019
-  FER JO Coordination Points 2019 Land
- _ FER JO Coordination Points 2019 Air

b) _Observations by FRO provided to Evaluations of JOs
-  FER JO Alexis 2019 - FRO observations submitted on 23.01.2020
- _ FER JO Minerva 2019 - FRO observations submitted on 31.01.2020
- FER JO Coordination Points 2019 Land - FRO observations submitted on 17.02.2020

Lack of information on referrals activated by the deployed officers related to victims of THB, children, persons in need
of international protection and other persons in a vulnerable situation as well as sex/gender and age disaggregated data
of migratory flows in the Agency’s operational areas remain issues of concern. Inclusion of the relevant indicators in the
Agency data collection for these matters, as expressed in the Regulation, would allow to assess impact on fundamental
rights of the operation based on comprehensive data collection and could enable Frontex Operations to better deploy
specialised officers to the area’s where most of the vulnerable persons arrive. Discussions on how to include these aspects
in the operational ICT tools between FRO and SAM/JORA are ongoing.

Although FR components within operations is part of the operational briefings, the FRO still perceives instances during
field visits of lack of awareness among the deployed officers on FR related obligations, including identification and referral
of vulnerable persons, difference between serious incident on possible FR violations and complaints mechanism, etc.

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Recommendations and/or follow-up:

 

 

To better operationalize FR related information in the operational briefings - new video on FR issues for the
deployed officers to be developed by FRO and Communications;

To enhance data collection and reporting with further gender, age disaggregated, vulnerabilities, in a
comprehensive and systematic manner to allow FR impact analysis;

To ensure briefing and raise awareness of the deployed officers on referral mechanism and vulnerable
persons, THB, child protection, gender issues; FRO/FRMs to support.

 

 

Supervisory mechanism to monitor the use of force (Article 55(5)(a))
To date, FRO has not received information or documents for consultation in this regard.

Other support to Frontex operational activities
During the reporting period, FRO and the Team delivered presentations on fundamental rights as part of operational
briefings for:

- JO Focal Points 2020 - LAND BCP, JO Coordination Points 2020 Land/Sea General Briefing, 15 January
2020;
- General Briefing for Air Border Joint Operations, 22 January 2020.

FRO team took part in the ALL-One-Evaluation between 26 and 29 November 2019.

Recommendations and/or follow-up:

FRO to follow-up on the consultation regarding the rules and guidelines on the use of force, while these rules and

guidelines will be the basis for training and operational plans and the foreseen update of the Frontex Code of Conduct.

 

3. RETURN OPERATIONS

Consultations on Return matters & pool of forced return monitors

In accordance with Article 48 of the EBCG Regulation, the Agency must perform return activities with respect for
fundamental rights and general principles of Union law as well as for international law, including refugee protection and
children’s rights. These tasks include the coordination and organisation of return operations, including pre-return and
post-arrival (Article 48(1)(a)(i) and (ii)) either in support of Member States or, with the agreement of the Member State
concerned, on its own initiative and (Article 50).

In this context, FRO contributes on a monthly basis to the establishment and selection of forced-return monitors (Article
51(1)) for joint return operations. The selection procedure is organised by Pooled Resources Unit, following an open call
addressed to relevant bodies in Member States. FRO Team contributed to the selection procedures on a monthly basis.

During the reporting period, and within the project FReM Ill, FRO engaged with the ICMPD in a coordination meeting on
the Management of the Pool, on 3 December 2019, Warsaw where all incumbent internal units discussed with ICMPD on
the steps ahead for ICMPD to devise, in close coordination with the Agency, a transitional plan for handover of the project
by May 2021 -in line with the Roadmap for the implementation of the Regulation 1896. A preliminary agreement with all
relevant units and endorsed by ED, has been internally reached, for FRO to coordinate the hand over and the pool in the
future (Article 51). The implementation depends on funding and staff within FRO that is currently not allocated.

As a direct responsibility and output of that coordination, FRO held a Follow-Up Meeting on the Development of Reporting
Software and the Database for Monitors of the Pool, on 22 January 2020, Vienna, Austria. The tool is intended to support
the analysis of the increasing number of reports received from monitors in a systematic and comprehensive manner,
allowing for easy follow up when required.

On 10-13 of November 2019, Associate FRO acted as a FR trainer and delivered several training sessions on fundamental
rights at the FReM Ill 2nd training for forced-return monitors (Rome/ltaly).

Consultations on IT return case management system (Article 48(1)(c)

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In accordance with Article 48(1)(c) of the EBCG Regulation, FRO provided input to the development of the Return case
management systern (RECAMAS), especially related to the non-binding reference model for national IT systems for return
case management, which will be used to link the national return management systems of the Member States with the
platform, for exchange of data and information, including the automated transmission of statistical data. FRO requested
to have a more prominent role in the process and to utilise the mandate to be consulted.

FERs & FRO Observations

In compliance with Article 50(7) of the EBCG Regulation, FRO observations are annexed to the Executive Director’s
evaluation report, transmitted to the Management Board every six months, covering all return operations conducted in
the previous semester. During the reporting period, FRO received 60 monitoring reports which also serve to provide
concrete recommendations as well as to adjust training needs of those organising the implementation of return
operations. FRO is following up on issues of concern from the monitoring reports with respective MS as they arise.

Recommendations and/or follow-up:

 

 

Intensify discussions with ICMPD on the development and implementation of a transitional plan to hand over the

ICMPD FREM Ill Project.

A. FUNDAMENTAL RIGHTS MONITORS

Following Article 110 and 109(3), at least 40 Fundamental Rights Monitors (FRMs), shall be recruited by the Agency (as
statutory staff) and appointed by the FRO to each operational activity of the Agency by 5 December 2020. Independent
in the performance of their duties, the FRMs will be entrusted with the following tasks (among others):
- Constantly assess the fundamental rights compliance of operational activities;
- Report to FRO on any concerns related to possible violation of fundamental rights within the Agency’s
operational activities;
-  Provide advice and assistance on fundamental rights in the preparation, conduct and evaluation of
operational activities of the Agency;
- Inform the coordinating officer and report to the FRO on any concerns related to possible violations of
fundamental rights within the Agency’s operational activities;
- Contribute to training activities in their areas of activities;
- Act as forced-return monitors.

 

According to Article 109, the FRO is mandated to select, manage and appoint the FRMs. The FRO shall also assign
fundamental rights monitors to operations and activities as provided for in Article 110(3); nominate fundamental rights
monitors as forced-return monitors for the pool; ensure that fundamental rights monitors are adequately trained and
notify the Executive Director on possible violations of fundamental rights reported by the FRMs.

In order to prepare for the establishment and maintenance of the FRMs, the ED requested to launch a pilot project with
the Fundamental Rights Agency (FRA) to test the means of deployment of the FRMs and to pilot the most effective
monitoring of fundamental rights (FR) in Frontex operational areas. The project implementation started in November
2019 with a kick off workshop and foresees pilot monitoring visits, development of a dedicated monitoring methodology,
support in the recruitment, design of the deployment and management model of the FRMs mechanism, both in the field
and in HQ and development of training curricula for the FRMs. The FRO and FRA staff, served as “pilot monitor” during
the visits to operational areas (land: Bulgaria, Hungary, Poland, Croatia, sea: Greece; Air: Rome Airport; TC: Albania).
The visits served as the empirical milestones to develop and verify the guidelines for the FRMs and test the processes
surrounding their recruitment and appointment.
A mid-term review took place in Vienna on 23-24 January where preliminary findings and tools where discussed among
pilot monitors, with the kind support of ORD in order to ensure applicability to the operational reality.

Pilot monitoring missions:
-  2-6.12.2019, Poland (BCPs Terespol and Dorohusk within JO FPs 2019 land)
-  16-20.12.2019, Hungary (BCPs Tompa and Roszke and land surveillance within JO FPs 2019 and FOA WB land)
- 1-2 December 2019, Italy, Rome airport
- 9-13 December 2019, Croatia (Zagreb-Vinkovei-Bajakovo-Tovarnik)

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Recommendations and/or follow up:

FRO and FRA to design Phase Il of the pilot project and send to IEC for further processing. Ensure access of all pilot

monitors to all activities and documents of the Agency necessary to guarantee comprehensiveness of the project to
establish the FRMs.

 

5. FUNDAMENTAL RIGHTS STRATEGY

According to Article 80 (1) of the EBCG Regulation, the Agency shall draw up, implement and further develop a
fundamental rights strategy (FRS) and action plan (AP), including an effective mechanism for monitoring respect for
fundamental rights in all the activities of the Agency. For this purpose, the FRO is mandated to contribute to the Agency’s
FRS. The FRS is also subject to the endorsement of the FRO.

During the reporting period, a consultancy on gender mainstreaming in the FRS and AP commenced, and the consultant
conducted a set of interviews in all Units in-house (HQ level) on how gender aspects are integrated in their respective
areas of work. FRO will integrate the recommendations stemming from the consultancy into the FRS.

The FRO has developed an initial version of the FRS for the consideration of the Agency. The draft outlines the Agency’s
understanding of its obligations towards guaranteeing fundamental rights in the performance of its tasks within the
European Integrated Border Management.

Conducting of the inclusive FRS development process and a swift adoption of the document is crucial to the
implementation of the Regulation 2019/1986 in line with FR standards and principles. Accordingly, the FRO is looking
forward to supporting the consultative development of the FRS and its AP, including facilitating the provision of comments
on the document by all business entities in-house, the Consultative Forum and the Management Board.

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Cooperation with Training Unit on the standing corps and use of force

Frontex shall ensure that all statutory staff to be deployed as member of teams receives training in relevant Union and
international law, including on fundamental rights. This includes adequate theoretical and practical training on the use
of force, weapons, ammunition and equipment and on applicable fundamental rights safeguards (Annex V).

In line with annex V (4) of the EBCG Regulation, the Fundamental Rights Officer shall verify and provide feedback on the
content of the inception and refreshment training with special regards to their fundamental rights aspects and their
application in the situation where the use of force is necessary, and ensure relevant preventive techniques are included.
The Frontex rules and guidelines on the use of force will be considered the underlying basis for this training.

FRO provided brief input on the curricula for the EBCG Standing Corps (SCs). The standing corps curricula was designed
based on the CCC which had been consulted with FRO and the CF, and is intended to integrate fundamental rights
horizontally in this standing corps training. FRO was invited to the development sessions of the basic training programme
for the European BCG standing corps CAT1. Since FRO team is not entirely available to attend those lengthy sessions nor
to take part fully in the upcoming training delivery for SCs, FRO has suggested Senior Management that external expertise
on fundamental rights is advisable in order to support both the development and the delivery and to ensure that
fundamental rights is consistently mainstreamed in the curricula and training.

Once developed and shared for consultation with FRO, the Frontex rules and guidelines on the use of force will be closely
monitored to comply with fundamental rights standards as provided in the United Nations Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials and the United Nations Code of Conduct for Law Enforcement Officials,
among other crucial international and regional human rights standards in this delicate matter.

Other capacity building activities

On 29 January FRO team provided a presentation for the Border Surveillance Officer - Maritime Operations training 1/2020
(MBSO) training. Discussions after the presentation, shared with the UNHCR LO, are always encouraged and interesting to
clarify fundamental rights practical matters encountered during patrolling at sea.

During the reporting period, FRO took part in the FReM Ill 2nd training for forced-return monitors, 11-15 November 2019,
Rome, Italy, as an active trainer, which was also attended by some CF delegates.

FRO Office are continuously engaged in the Induction trainings for new-comers. Sessions were held during the reporting

period on a monthly basis. The engagement in this activity is deemed even more important, since the Regulation
2019/1896 has clearly stepped up the fundamental rights obligations of the European Border and Coast Guard. FRO team

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has revised and reflected on the most efficient way to convey FR basic information and enhance the awareness of the
Agency’s staff on the matter, as the first step towards effective implementation of these obligations, and is presenting a
revised version of the key messages on FR in accordance to the new Regulation.

Recommendations and/or follow-up:

Additional expertise is needed in order to ensure that fundamental rights is consistently mainstreamed in
the Standing corps curricula.

Close follow up on the development and delivery of the SC training is essential to ensure fundamental right
mainstreaming in line with obligations

 

 

 

7. INTERNATIONAL AND EUROPEAN COOPERATION ACTIVITIES

In international and European cooperation (lEC), the FRO is tasked by the EBCG Regulation, Art.109(2) to provide opinions
on pilot projects, technical assistance projects and working arrangements on third countries.

During the reporting period, FRO has provided opinions on the lexicon of migration-related terms developed under the EU
for Border Security Project. The Lexicon now contains a set of fundamental rights-relevant terms and has been vetted for
alignment with international law. Further consultation took place for the implementation of the cooperation with Canada.

The FRO also developed a draft Fundamental Rights Due Diligence Procedure to adequately manage and mitigate the risks
of FR violations that can arise prior to launching activities, or that can occur during Frontex operations or in cooperation
with non-EU countries. The proposed procedure allows assessing the potential fundamental rights risks, devising an
appropriate response, in line with Article 46 of the EBCG 2019/1986, by the Agency as well as instituting relevant risk
mitigation measures.

Regular cooperation and exchanges with IEC various Units have been established, as well as a mechanism to receive
relevant information from LOs on FR matters. Further discussions on how FRO could advice the LOs should follow.

Recommendations and/or follow-up:

Discussions on the due diligence procedure drafted need to be stepped up internally.

8. COOPERATION WITH THE CONSULTATIVE FORUM (CF)

According to Article 108(3), the consultative forum shall be consulted on the further development and implementation of
the fundamental rights strategy, on the functioning of the complaints mechanism, on codes of conduct and on the common
core curricula.

During the reporting period CF members took part in development meeting for basic training programme for CAT 1 of
European BCG Standing Corps (27-31 January 2020).

The FRO has sought CF’s advice in reference to consultancy on gender mainstreaming commissioned by FRO in reference
to of the revision of the fundamental rights strategy and its action plan.

Additionally, in 2019 the Forum continued to support further development of the VEGA initiative with a focus on its
extension to land and sea borders. Forum experts were deployed at the Polish/Ukrainian within the framework of Joint
Operation Focal Points 2019 from 6 to 21 November. Moreover, CF members took part in 2nd Training for forced return
monitors of the project "Forced Re-turn Monitoring III" (FReM Ill) in Rome from 11 to 15 November.

On 20 November, CF’s Activity Report for 2019 was presented at the 77nd Management Board meeting, Warsaw. Finally,
in the end of 2019, the Forum had requested the Executive Director to support the organisation of a visit to Frontex
operational activities in Albania, which eventually took place from 16 to 19 December. The purpose of the visit was for
the CF to better understand the enhanced role of the Agency in third countries, and its Joint Operations, with a view to
being in a position to address well-founded recommendations to Frontex on the possible impact to fundamental rights of
that engagement.

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