Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea

Final Report of the Frontex Management Board Working Group

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Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea Final Report of the Frontex Management Board Working Group 1 March 2021

Foreword Following the conclusions of the Frontex Management Board meeting on 20-21 Janu- ary 2021 on its preliminary report, the Working Group on Fundamental Rights and Le- gal Operational Aspects of Operations in the Aegean Sea followed up on the matters of still pending incidents and further legal questions on operational aspects of the Agency's Joint Operations. In this regard, the Working Group further inquired on five remaining incidents by means of multiple Working Group meetings, expert interviews and additional documents pro- vided by Frontex, EU Member States, the European Union Agency for Fundamental Rights and the Management Board’s Consultative Forum to receive further clarifica- tion. Taking up the Working Groups recommendations set out in the preliminary report, the Agency initiated several actions as part of its roadmap to fully implement all necessary measures. These measures have been subject of further consideration by the Working Group and are also addressed in this report. The Working Group furthermore welcomes the European Commissions' elaboration on a number of legal questions previously addressed in the Workings Group's preliminary report. Composition of the Working Group GERMANY:        Alexander Fritsch         NORWAY:             Einar Dale (Expert) (Spokesperson) ROMANIA:            Marius Vizitiu Heiner Nowitzki                               (MB Alternate Member) (Assisting Expert)        SWITZERLAND: Medea Meier (MB Alternate Member) Nils von Waaden SWEDEN:             Marianne Persson (Assisting Expert) (MB Alternate Member) FRANCE:         Amaury de Guillebon       EUROPEAN            Corinna Ullrich (Expert)                  COMMISSION:         (MB Alternate Member) GREECE:         Dimitrios Varouxakis      HUNGARY:            Laszlo Balazs (MB Alternate Mem-                            (MB Alternate Member) ber) 2

Content Foreword .................................................................................................................... 2 1.    Key findings of the preliminary report ................................................................. 4 2.    Working methods ............................................................................................... 5 3.    Examined incidents ............................................................................................ 5 3.1  SIR 11095/2020, 18/19 April 2020 ................................................................. 6 3.2  SIR 11860/2020, 27 July 2020 ....................................................................... 8 3.3  SIR 11934/2020, 5 August 2020 .................................................................... 9 3.4  SIR 12604/2020, 30 October 2020 .............................................................. 10 3.5  SIR 12790/2020, 21 November 2020........................................................... 12 3.6  Incident of 28/29 April 2020 ......................................................................... 13 4.    Legal Aspects................................................................................................... 13 5.    Conclusions and recommendations ................................................................. 15 5.1  Main results and proposals of the incidents ................................................. 15 5.2  Measures in conjunction with Article 46 of Regulation (EU) 2019/1896 ....... 17 3

1. Key findings of the preliminary report •   The Working Group’s assignment was to inquire what has happened regarding the alleged so-called “pushbacks” in the Aegean Sea. In this context, -13- relevant in- cidents with a potential link to Frontex deployed assets were identified, which were subject to further examination. •   The Working Group fully acknowledges the special circumstances such as factors at sea, environmental influences, currents, waves and weather and a possible hy- brid threat, which can all have an influence on the actions of the responsible officers in each individual case. Additionally, the behaviour of the facilitators and the people in the boats need to be borne in mind when assessing an incident. At the Greek/Turkish maritime border, the behaviour of the Turkish border authorities must also be taken into account. In light of these circumstances, it is difficult to retrospectively reconstruct each incident. •   It is the common legal understanding of the Working Group that not every detected boat with migrants on board per se qualifies as a distress case, in addition, not every detected attempt of illegal border crossing by circumventing official Border Crossing Points can automatically be considered as an asylum case not even at sea A precise analysis of the specific circumstances of each individual case is therefore of utmost importance. •   In total -8- out of the examined incidents were clarified to the effect that no third- country nationals were turned back in contravention of the principle of non-re- foulement, or otherwise in violation of Article 80(2) of Regulation (EU) 2019/1896. In particular, 6 out of these 8 incidents took place entirely in Turkish Territorial Wa- ters. •   Part of the debate in the Working Group was on how access to the asylum system and respective individual assessment of protection needs can be guaranteed dur- ing border police measures at sea. The Fundamental Rights Officer took also note of the often quite difficult circumstances in such events. As a result, this question can only be answered by the officers in charge on the spot and depends on the suitability of the respective available assets. •   Any measures taken should be in proportion to the objectives pursued, non-dis- criminatory and fully respect human dignity, fundamental rights and the rights of refugees and asylum seekers, including the principle of non-refoulement. Each ap- plication for asylum has to be assessed individually. •   The European Commission accepted the request from the Working Group, to elab- orate on a number of legal questions of certain legal provisions and application of jurisprudence of the European Court of Human Rights to the sea borders and the impact of that jurisprudence on the interpretation of provisions of Regulation (EU) 656/2014 . 1 1 The Working Group has been informed that the reply by the Commission will be delivered directly to the Man- agement Board for its information. 4

•    Considering all necessary requirements and practical terms, the Working Group identified deficiencies in the monitoring and reporting system of Frontex and sug- gested further necessary improvement. Furthermore, with regard to the draft con- clusion of the Management Board from 21 January 2021, the reporting system should be combined with a newly introduced culture, in which failure is acknowl- edged and addressed, in order to create awareness of and sensitiveness towards possible misconduct. •    Based on the preliminary findings, -5- incidents (SIR 11095/2020, 11860/2020, 11934/2020, 12604/2020, 12790/2020) were found in the preliminary Report plus another possible incident, to merit further examination by the Working Group. 2. Working methods The Working Group maintained the confirmed division into sub-working groups, in which especially the further examination of -5- incidents plus another incident reported by the media continued. During multiple online consultations in February 2021, the Working Group drafted a questionnaire, which focussed on missing information and details that were necessary for the further clarification and final assessment of the in- cidents in question. In this context, the Working Group reached out to further sources beyond the Agency itself and addressed the Member States having been involved or potentially able to contribute to the process, namely Denmark, Greece and Sweden. In addition, the Member States and the Agency supported the Working Group by providing several experts, including the Agency’s Executive Director, who participated in the online con- sultations. In view of the aforementioned sources, the Working Group considered all data received until the completion of the final report. Furthermore, the European Union Agency for Fundamental Rights and the Manage- ment Board’s Consultative Forum provided substantial contributions to the Working Group with regard to the applicable legal framework and fundamental rights chal- 2 lenges at borders. In addition, the Agency’s Fundamental Rights Officer supported the Working Group’s continuous work and provided valuable information, documents and other useful comments. 3. Examined incidents The Working Group inquired on the aforementioned so far unresolved incidents occur- ring in Frontex-coordinated activities in the Eastern Mediterranean Sea. All but one have been filed as Serious Incident Reports (SIR) within the Agency’s reporting scheme. The SIR in question were: ⋅ SIR 11095/2020, ⋅ SIR 11860/2020, ⋅ SIR 11934/2020, ⋅ SIR 12604/2020 and 2 Handbook on European law relating to asylum, borders and immigration, Migration: Fundamental rights issues at land borders, Fundamental rights of refugees, asylum applicants and migrants at the European borders, Fundamental rights at Europe’s southern sea borders, Border controls and fundamental rights at external land borders. 5

⋅ SIR 12790/2020. Additionally, the Working Group examined an incident, reported by the investigative media outlet Bellingcat that allegedly occurred on 29 April 2020, with regard to a pos- sible link or interconnection to incidents that had been reported to the Agency. It is important for the Working Group to emphasize that in the following clarification and assessments the statements of all involved partners are taken into consideration equally. Furthermore, no general distinction is made between material evidence and personal evidence in the following consideration. 3.1    SIR 11095/2020, 18/19 April 2020 Compressed facts of the case: ⋅ In the night of 18 April 2020, a Frontex Surveillance Aircraft observed a rubber boat in Greek Territorial waters. The rubber boat was empty and being towed by a Hel- lenic Coast Guard vessel towards Turkish Territorial waters. Approximately 20-30 people were on board the Hellenic Coast Guard vessel that was towing the rubber boat. After some time, these people were retransferred onto the rubber boat at the Greek-Turkish border. Afterwards, the Hellenic Coast Guard left the location. Ac- cording to the statement by the Hellenic Coast Guard, the Turkish Coast Guard took over responsibility of the incident. Final clarification and assessment: • The Agency wrote both, a preliminary and a final Serious Incident Report, in which the chronological sequence of events was described as stated above. Among other documents, the final Serious Incident Report was provided to the Working Group. The Agency clarified and finalised the Serious Incident Report on 30 April 2020. The data available shows that the rubber boat in question was sighted by a Frontex Surveillance Aircraft in Greek Territorial waters. At the time of detection, a Turkish Coast Guard vessel was nearby as reported in the mission report. • According to Greek authorities, the Hellenic Coast Guard intercepted the rubber boat and took the people on board of the Hellenic Coast Guard vessel. The Hellenic Coast Guard states that they assessed the personal circumstances of the people on board the vessel, categorized the situation as an irregular border crossing and ordered the rubber boat to alter its course to leave Greek Territorial waters in ac- cordance with national law. In addition, the Hellenic Coast Guard provided people on board with information regarding their destination in Turkey. According to further statements of the Hellenic Coast Guard, there were no indications to dissuade their return back to Turkey and no claims for asylum or international protection were brought forward, even though such an opportunity was provided. • Thus, the Hellenic Coast Guard vessel took course towards the Greek-Turkish bor- derline towing the empty rubber boat. After reaching the Greek-Turkish borderline, the people on board were retransferred onto the rubber boat by the Hellenic Coast Guard. The Hellenic Coast Guard further stated that two vessels of the Turkish Coast Guard were involved in the coordination of the incident, even though this 6

claim could not be corroborated and documented by the Frontex Surveillance Air- craft sightings due to its merely partial involvement in the incident. According to the statement of the Hellenic Coast Guard, they asked the Turkish Coast Guard to take over responsibility for the people on board of the rubber boat. • On the photographic material made by the Frontex Surveillance Aircraft, there is no engine recognizable at the time the empty rubber boat was towed by the Hellenic Coast Guard vessel. According to the statement of the Hellenic Coast Guard, this could be either due to the angle and distance of the aircraft or because the engine was temporarily unmounted. The Working Group cannot conclusively assess, if and where an engine could have been stashed while the empty rubber boat was towed by the Hellenic Coast Guard. • Furthermore, on the photographic material made by the Frontex Surveillance Air- craft there is no engine recognizable outside of the rubber boat by the time the people were retransferred. Whether an engine had been stowed inside the rubber boat at the time when the Hellenic Coast Guard, as the Hellenic Coast Guard state, left the spot could not be clarified by the Working Group. • There were also no Turkish Coast Guard vessels recognizable in the pictures at the moment in time the rubber boat was left at the borderline, though one of them was spotted by the Frontex Surveillance Aircraft earlier on. The Hellenic Coast Guard reiterates that the rubber boat was sea-worthy, able to navigate, equipped with a working engine and that the Turkish Coast Guard was at the scene. • In full support of the final Serious Incident Report, the Working Group welcomes the measures taken by the Agency after the incident was examined, namely ad- dressing an official letter to the Hellenic Coast Guard, requesting to launch an in- ternal investigation and to coordinate the possible follow-up measures stemming from the Serious Incident in cooperation with the respective Member State author- ities. • As the involved Hellenic Coast Guard assets were not co-financed by the Agency, incidents relating these assets are not covered by the Agency’s reporting scheme. 7

3.2     SIR 11860/2020, 27 July 2020 Compressed facts of the case: ⋅ On 27 July 2020 at 06:21 LT, a Danish helicopter deployed to Joint Operation Po- seidon 2020 detected a rubber boat with people on board during a patrol near Chios Island within Greek Territorial waters. ⋅ After the detection by the Danish helicopter, the rubber boat was intercepted by a Hellenic Coast Guard Patrol boat. ⋅ The Joint Rescue Coordination Centre Piraeus informed the Maritime Rescue Co- ordination Centre Ankara about the incident. Final Clarification and assessment: • A disagreement between involved European entities concerning the first sighting coordinates in the Turkish Territorial waters did not influence the actual handling of the incident. • After reviewing the data provided by the Agency, Denmark and Greece, the incident took place inside Greek Territorial waters. The data also clearly shows that the incident in question was not classified as a Search and Rescue case at any point in time within Greek Territorial waters. • Information provided by the Hellenic Coast Guard indicates that the migrant boat altered its course on its own towards Turkish Territorial waters upon arrival of the Hellenic Coast Guard vessel. This statement has not been refuted by the examined data (in particular mission reports). • Furthermore, the data provided does not substantiate the assumption that Turkish Coast Guard authorities did not fulfil their responsibilities and obligations regarding the safe return of all people on board the boat in question. • According to the Danish helicopter’s mission report, the Greek patrol boat passed the rubber boat at relatively high speed when reaching the scene. The Greek au- thorities confirmed this statement and state that this had never effected or jeopard- ized the state of the migrant’s safety. • The Greek side stated that the post-operational communication between them and the Danish detachment was a misunderstanding. The Hellenic Coast Guard ex- pressed their regrets about any misconception their communication might have trig- gered, stressing that their request for an additional position in Turkish Territorial waters was based on the assumption that the Danish helicopter should have de- tected the boat within Turkish Territorial waters sooner, given that the latter came from Turkish Territorial waters. • The Hellenic Coast Guard underlined the role of the Joint Coordination Board as the competent forum for resolving any misunderstandings and the provision of clar- ifications when needed. • After examination, the available data could not resolve the contradiction between the Danish and Greek presentations of their mutual communication. Operational documentation, inquiries – beyond the scope of the Danish mission report – and 8

the still pending final incident assessment by Frontex did not allow an extensive clarification of the incident. •  The process of reporting, crosschecking and validating the operational data, at all levels, shall be carried out in an effective and transparent manner that leaves no room for interferences and misunderstandings. 3.3     SIR 11934/2020, 5 August 2020 Compressed facts of the case: ⋅ On 8 August 2020 during the night, a Frontex Surveillance Aircraft reported the sighting of a rubber boat in Greek Territorial waters, which had been intercepted and presumably towed by a Hellenic Coast Guard Patrol Boat eastward towards Turkish Territorial waters. Initial information on the incident was contradictory as to the number of migrants on board (30 or about 60). Final clarification and assessment: • After a detailed examination and further discussions, the Working Group concludes that the actual amount of people on board was more likely to be at 60 rather than 30. This conclusion is based on the fact that the number provided by maritime as- sets are preferred over those provided by aerial assets as they are considered more accurate due to the closer distance to the incident. • According to the statement by Greek authorities, Hellenic Coast Guard vessels did not tow the rubber boat, since the rubber boat had a working engine. Ropes/lines were utilized to set the migrant vessel under control. These attempts of taking con- trol over the vessel did not succeed. • In the further examination by the Working Group, the Hellenic Coast Guard asserts that the two involved Hellenic Coast Guard Patrol Boats undertook efforts to inter- cept the vessel in the context of border surveillance measures to prevent illegal border crossings. According to the statement of the Hellenic Coast Guard, these measures were conducted in accordance with corresponding legal obligations. • Greek authorities state that the people on board behaved non-cooperatively. In par- ticular, they attempted manoeuvres to avoid border control measures and cut or discard the ropes, which were used in an attempt to put the rubber boat under control. Therefore, the interception by the Hellenic Coast Guard was unsuccessful. The Hellenic Coast Guard explained that the circumstances of the incident left no possibility for asking for international protection. Following the failed attempts to approach the Greek coast, the rubber boat with people on board returned to Turkish Territorial waters on their own. After contacting Turkish authorities, the Turkish Coast Guard arrived on scene and took over responsibility of the incident. • Even after the further examination by the Working Group, the actual events in the respective incident cannot be conclusively clarified. Evidence provided by the Agency (videos, photos and reports) does not clarify the circumstances in relation to the statements of the Hellenic Coast Guard. • The respective Frontex Surveillance Aircraft only reported a limited sequence of the entire incident. 9

•  According to the Serious Incident Report in question, the Frontex Surveillance Air- craft which reported the incident “was instructed by the Greek Sea Border Expert not to monitor the event and to continue the patrol in south-eastern direction”. The request by the Hellenic Coast Guard to continue the patrol is part of an established operational process used to ensure the effective surveillance of other areas which otherwise remain unattended during incidents. Maritime and aerial assets, both of the Host Member State or Participating Member State may be cleared to continue their patrol in cases as soon as appropriate capacities are able to respond to an incident. The Working Group attaches importance to the operational needs and tactical methods in the context of an effective external border management and a consistent border surveillance. •  The International Coordination Centre Piraeus has declared the event as “Preven- tion of Departure”, even though the incident occurred in Greek Territorial waters, which in the opinion of the Working Group is inconsistent. •  According to the Agency, the Serious Incident Report has not been finalised due to their ongoing correspondence with the Hellenic Coast Guard. According to the an- nouncement by the Agency, the finalisation of the Serious Incident Report is ex- pected very soon. The involved Hellenic Coast Guard asset was not co-financed by the Agency. Hence, the Agency exhausted its (limited) possibilities to clarify the facts of the case. •  In summary, the presentations of both sides differ considerably from one another. The statements and allegations could neither be substantiated nor dispelled by the Working Group. 3.4     SIR 12604/2020, 30 October 2020 Compressed facts of the case: ⋅ On 30 October 2020, a Swedish Coast Guard vessel detected a rubber boat inside Greek Territorial waters. ⋅ After intercepting the rubber boat, the Swedish Coast Guard Vessel handed the incident over to Hellenic Coast Guard. ⋅ Upon departing the scene to continue on their border surveillance patrol, the crew of the Swedish Coast Guard vessel followed the incident on the radar screen and perceived a singular echo, despite the presence of two vessels that were moving towards the Turkish Territorial waters. ⋅ The Swedish Coast Guard requested to launch a Serious Incident Report via the Frontex reporting mechanism, which was then allegedly hampered but eventually initiated by the responsible Frontex officer at that time. Final Clarification and assessment: • After reviewing the data provided by Frontex, Greece and Sweden, the incident took place inside Greek Territorial waters and was classified as SIR Category 4. Following an internal investigation, Frontex denied the accusations of hampering the transmission of the report. According to Frontex, the respective staff in question only explained that it was not possible to initiate a Serious Incident Report via the 10

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