Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union: Complaint Mechanisms and Access to Justice 2019039669, 2019039670, 9780367195809, 9780429203275

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Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union: Complaint Mechanisms and Access to Justice
 2019039669, 2019039670, 9780367195809, 9780429203275

Table of contents :
Cover
Half Title
Series
Title
Copyright
Contents
List of illustrations
Notes on contributors
List of abbreviations
Introduction – justicing Europe’s frontiers: effective access to remedies and justice in bordering and expulsion policies
Part I Complaint mechanisms in the context of border controls and expulsions at land and air borders
1 Keeping up appearances: dubious legality and migration control at the peripheral borders of Europe. The cases of Ceuta and Melilla
2 Deportations without the right to complaint: cases from Spain
3 Hungary at the border of populism and asylum
4 Access to effective remedies for foreigners affected by decisions, actions, and inactions of the Polish Border Guard
5 Human rights violations in expulsion cases and during enforced returns: the Austrian law and reality
Part II Complaint mechanisms in the context of sea borders and maritime surveillance
6 Police accountability and human rights at the Italian borders
7 Search and rescue, disembarkation, and relocation arrangements in the Mediterranean: justicing maritime border surveillance operations
8 Border management at the external Schengen Borders: border controls, return operations, and obstacles to effective remedies in Greece
9 A practical evaluation of border activities in Romania: control, surveillance, and expulsions
Part III Justicing international, regional, and EU standards
10 Complaint mechanism during return flights: the European border and Coast Guard Agency
11 Mechanisms to prevent pushbacks
12 Human rights complaints at international borders or during expulsion procedures: international, European, and EU standards
Index

Citation preview

This is a ground-breaking volume highlighting the importance of access to justice and the rule of law in immigration proceedings and the legal and human rights challenges which arise from the proliferation of border controls in Europe. It is essential reading for scholars and practitioners with an interest and expertise in immigration, administrative, constitutional and human rights law and their European dimension. – Valsamis Mitslegas, Professor of European Criminal Law and Global Security and Deputy Dean for Global Engagement (Europe), at Queen Mary, University of London, UK

Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union

This edited volume examines the extent to which the various authorities and actors currently performing border management and expulsion-related tasks are subject to accountability mechanisms capable of delivering effective remedies and justice for abuses suffered by migrants and asylum seekers. Member states of the European Union and State Parties to the Council of Europe are under the obligation to establish complaint mechanisms allowing immigrants and/or asylum seekers to seek effective remedies in cases where their rights are violated. This book sheds light on the complaint bodies and procedures existing and available in Austria, Greece, Hungary, Italy, Spain, Poland, and Romania. It assesses their role in overseeing, investigating, and redressing cases of human rights violations deriving from violent border and immigration management practices, and expedited expulsion procedures. This book therefore provides an assessment of the practical, legal, and procedural challenges that affect the possibility to lodge complaints and access remedies for human rights violations suffered at the hands of the law enforcement authorities and other security actors operating at land, air, and sea borders, or participating in expulsions procedures – in particular, joint return flights. The volume will be of key interest to students, scholars, and practitioners working on human rights, migration and borders, international law, European law and security studies, EU politics, and more broadly, international relations. Sergio Carrera is Senior Research Fellow and Head of the Justice and Home Affairs unit at the Centre for European Policy Studies (CEPS) and part-time Professor at the Migration Policy Centre, European University Institute in Florence. He is also Visiting Professor at the Paris School of International Affairs (PSIA) at Sciences Po, France. Marco Stefan is Research Fellow at CEPS Justice and Home Affairs Section.

Routledge Studies in Human Rights Series Editors: Mark Gibney UNC Asheville, USA

Thomas Gammeltoft-Hansen

University of Copenhagen, Denmark

Bonny Ibhawoh

McMaster University, Canada

The Routledge Studies in Human Rights series publishes high quality and cross-disciplinary scholarship on topics of key importance in human rights today. In a world where human rights are both celebrated and contested, this series is committed to create stronger links between disciplines and explore new methodo­ logical and theoretical approaches in human rights research. Aimed towards both scholars and human rights professionals, the series strives to provide both critical analysis and policy-oriented research in an accessible form. The series welcomes work on specific human rights issues as well as on cross-cutting themes and insti­ tutional perspectives. Truth, Silence and Violence in Emerging States Histories of the Unspoken Edited by Aidan Russell Human Rights and US Foreign Policy Prevarications and Evasions Clair Apodaca Politics of International Human Rights Law Promotion in Western Europe Order versus Justice Koldo Casla Extending International Human Rights Protections to Vulnerable Populations Raymond A. Smith Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union Complaint Mechanisms and Access to Justice Edited by Sergio Carrera and Marco Stefan For more information about this series, please visit: www.routledge.com/ Routledge-Studies-in-Human-Rights/book-series/RSIHR

Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union Complaint Mechanisms and Access to Justice

Edited by Sergio Carrera and Marco Stefan

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Sergio Carrera and Marco Stefan; individual chapters, the contributors The right of Sergio Carrera and Marco Stefan to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Carrera, Sergio (Political scientist), editor. | Stefan, Marco, editor. Title: Fundamental rights challenges in border controls and expulsion of irregular immigrants in the European Union : complaint mechanisms and access to justice / edited by Sergio Carrera and Marco Stefan. Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Routledge studies in human rights | Includes bibliographical references and index. Identifiers: LCCN 2019039669 (print) | LCCN 2019039670 (ebook) | ISBN 9780367195809 (hardback) | ISBN 9780429203275 (ebook) Subjects: LCSH: European Union countries—Emigration and immigration—Government policy—Case studies. | Illegal aliens—Government policy—European Union countries—Case studies. | Illegal aliens—Legal status, laws, etc.—Case studies. | Deportation—European Union countries—Case studies. Classification: LCC JV7590 .F86 2020 (print) | LCC JV7590 (ebook) | DDC 341.4/86094—dc23 LC record available at https://lccn.loc.gov/2019039669 LC ebook record available at https://lccn.loc.gov/2019039670 ISBN: 978-0-367-19580-9 (hbk) ISBN: 978-0-429-20327-5 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

Contents

List of illustrations Notes on contributors List of abbreviations

Introduction – justicing Europe’s frontiers: effective access to remedies and justice in bordering and expulsion policies

ix

x

xii

1

SERGIO CARRERA AND MARCO STEFAN

PART I

Complaint mechanisms in the context of border controls

and expulsions at land and air borders

23

1 Keeping up appearances: dubious legality and migration

control at the peripheral borders of Europe. The cases of

Ceuta and Melilla

25

ANA LÓPEZ-SALA

2 Deportations without the right to complaint: cases from Spain

43

IKER BARBERO AND MARIONA ILLAMOLA-DAUSÀ

3 Hungary at the border of populism and asylum

64

JUDIT TÓTH

4 Access to effective remedies for foreigners affected by decisions, actions, and inactions of the Polish Border Guard

87

MAJA ŁYSIENIA

5 Human rights violations in expulsion cases and during enforced returns: the Austrian law and reality ULRIKE BRANDL

107

viii

Contents

PART II

Complaint mechanisms in the context of sea borders and maritime surveillance 6 Police accountability and human rights at the Italian borders

123 125

GIUSEPPE CAMPESI

7 Search and rescue, disembarkation, and relocation

arrangements in the Mediterranean: justicing maritime

border surveillance operations

148

SERGIO CARRERA AND ROBERTO CORTINOVIS

8 Border management at the external Schengen Borders: border controls, return operations, and obstacles to effective remedies in Greece

175

AIKATERINI DRAKOPOULOU, ALEXANDROS KONSTANTINOU, AND DIMITRIS KOROS

9 A practical evaluation of border activities in Romania: control, surveillance, and expulsions

197

MADALINA MORARU AND FELICIA NICA

PART III

Justicing international, regional, and EU standards

217

10 Complaint mechanism during return flights: the European border and Coast Guard Agency

219

JARI PIRJOLA

11 Mechanisms to prevent pushbacks

234

TINEKE STRIK

12 Human rights complaints at international borders or during

expulsion procedures: international, European, and

EU standards

259

SERGIO CARRERA AND MARCO STEFAN

Index

289

Illustrations

Figures 6.1 Italian geopolitics of sea border control and surveillance activities 7.1 Contained mobility and portable justice

137 156

Tables 2.1 3.1 3.2 3.3

Access to territory through unauthorised points 2016–2017 Accession to the protection in Hungary Share of applicants and applications Refused entry at the Hungarian external borders and reasons as the Schengen Border Code determines 3.4 Border police data on measures related to irregular migration 3.5 Remedy mechanisms in border issues 7.1 Number of persons rescued under the coordination of Italian MRCC and number of people returned to Libya by the Libyan Coast Guard

44 66 67 68 69 79 151

Contributors

Iker Barbero is Lecturer at the Department of Administrative Law, Constitu­ tional Law and Philosophy of Law at the University of the Basque Country. Ulrike Brandl is Assistant Professor at the Department of Public Law, Public International Law and International Organisations, Faculty of Law, University of Salzburg. Giuseppe Campesi is Senior Lecturer and Aggregate Professor (tenured) in Law and Society at the Department of Political Sciences, University of Bari. Sergio Carrera is Senior Research Fellow and Head of Justice and Home Affairs Programme at CEPS, Brussels. He is also Professor at the Migration Policy Cen­ tre (MPC) in the European University Institute (EUI) in Florence (Italy) and Visiting Professor at Sciences Po (Paris School of International Affairs, PSIA). Roberto Cortinovis is Researcher in the Justice and Home Affairs Programme at CEPS, Brussels. Aikaterini Drakopoulou is a Greek attorney-at-law and member of the Athens Bar Association since 2009, and of the Legal Department of the Greek Council for Refugees. At the beginning of 2011 she became a member of the Legal Unit of the Greek Council for Refugees (GCR) and a Deputy Coordinator of GCR’s legal teams on the eastern Aegean Greek islands. Mariona Illamola-Dausà is Adjunct Professor of Public International Law and Director of the European Documentation Centre at the University of Girona. Alexandros Konstantinou is a practising lawyer specialising in Human Rights and Refugee Law and a member of the Legal Unit of the Greek Council for Refugees since 2011. Since 2017, he has been a member of the Plenary of the Greek National Commission for Human Rights. Dimitris Koros is a lawyer, member of the Legal Unit of the Greek Council for Refugees since 2013, Deputy Coordinator of the Legal Unit for Thessaloniki Office, and member of the Collective Law Office ‘Partners Lawyers.’ Ana López-Sala is Research Fellow at the Institute of Economics, Geography and Demography, Spanish National Research Council (CSIC).

Contributors

xi

Maja Łysienia is PhD Candidate at the University of Zurich. She works as a law­ yer at the Helsinki Foundation for Human Rights in Poland. Madalina Moraru (PhD in Law) is currently a Scientific Coordinator and Researcher at the European University Institute (EUI) in Florence, Italy. Felicia Nica, a lawyer, is currently the National Expert on Romania within the Asylum Information Database (AIDA) project managed by the European Council on Refugees and Exiles (ECRE). Jari Pirjola is Doctor of International Law and works as Principal Legal Adviser in the Office of the Parliamentary Ombudsman of Finland. Marco Stefan is Researcher within the Justice and Home Affairs Programme at the Centre for European Policy Studies. Tineke Strik was a member of the Dutch Senate and the Parliamentary Assembly of the Council of Europe from 2007 to June 2019. She was also Associate Pro­ fessor of Migration Law at Radboud University (Nijmegen). Since July 2019 she has been a Member of the European Parliament. Judit Tóth is a lawyer and Associate Professor of Constitutional Law at the Department of Constitutional Law of the Faculty of Law, University of Szeged.

Abbreviations

AIDA ARSIWA ASGI CDIBP CEAR CEAS CETI CIE CJEU CoE CPT

CSDP EASO EBCG EC ECHR ECRE ECtHR EEA EEAS EP EU EUCFR EUR EUROSUR FRA FRO

Asylum Information Database International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts Association for Juridical Studies on Immigration Central Direction for Immigration and Border Police Comisión Española de Ayuda al Refugiado; Spanish Commission for Refugee Aid Common European Asylum System Centro de Estancia Temporal de Inmigrantes; Centre for Temporary Stay of Immigrants Centro de Internamiento de Extranjeros Foreigner’s Detention Centre Court of Justice of the European Union Council of Europe Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Common Security and Defence Policy European Asylum Support Office Frontex, European Border and Coast Guard European Commission European Convention of Human Rights European Council of Refugees and Exiles European Court of Human Rights European Economic Area European External Action Service European Parliament European Union EU Charter of Fundamental Rights Euro The European Border Surveillance System EU Fundamental Rights Agency Fundamental Rights Office

Abbreviations xiii GCM GLAN HFHR HHC HRW IAO ICC ICCPR IMO IOM ISIS JRS LGBTQ LOEx MoU MRCC NGO NPM OECD OHCHR OMN OSI PAC PACE RCC RCIE SAR SBC SC SMART SOLAS SPT SRR TCNs TEU TFEU UAM UN UNCAT UNCLOS UNCRC UNDOC UNHCR

UN Global Compact for Migration Global Legal Action Network Helsinki Foundation for Human Rights Hungarian Helsinki Committee Human Rights Watch Hungarian Immigration and Asylum Office International Criminal Court International Covenant on Civil and Political Rights International Maritime Organization International Organisation for Migration Islamic State Jesuit Refugee Service Lesbian, Gay, Bisexual, Transgender, and Queer Organic Law 4/2000 of 11th January on Foreigner’s Rights and Freedoms in Spain and their Social Integration Memorandum of Understanding Maritime Rescue and Coordination Centre Nongovernmental organisation National Preventive Mechanism Organisation for Economic Co-operation and Development UN High Commissioner for Human Rights Operation Mare Nostrum Open Society Institute Provincial Administrative Court in Warsaw Parliamentary Assembly Council of Europe Rescue Coordinating Centre CIE Regulations Search and rescue Schengen Borders Code Spanish Constitution Service Oriented Infrastructure for Maritime Traffic Tracking International Convention for the Safety of Life at Sea UN Subcommittee for the Prevention of Torture Search and Rescue Region Third-country nationals Treaty on the European Union Treaty on the Functioning of the European Union Unaccompanied minors United Nations UN Committee Against Torture; UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment UN Convention on the Law of the Sea UN Committee on the Rights of the Child UN Office on Drugs and Crime UN High Commissioner for Refugees

Introduction Justicing Europe’s frontiers: effective access to remedies and justice in bordering and expulsion policies Sergio Carrera and Marco Stefan I.1 Introduction: complaints mechanisms in the European Union This book critically examines the dynamic interactions between border control, border surveillance, and expulsion policies along with effective access to rem­ edies and justice against abuses in the European Union (EU). New and old ways of law enforcement and policing techniques on human mobility constantly and increasingly challenge the possibility to seek remedies and obtain justice for those individuals whose human rights are negatively affected by mistreatment, unlawful conduct, or disproportionate use of force by state authorities. The obstacles and barriers that new patterns, strategies, and instruments of ‘migration management’ put to judicial scrutiny and accountability for cases of human rights violations are well known. The existence, accessibility, and effectiveness of non-judicial instru­ ments and actors monitoring abuses and handling complaints against fundamental rights violations in the context of border control, surveillance, or expulsion opera­ tions remain, however, largely unexplored. The chapters in this volume mainly focus on the existence and effectiveness of ‘Complaint Mechanisms’ of extrajudicial or administrative nature in selected EU member states – in particular, Austria, Greece, Hungary, Italy, Spain, Poland, and Romania. The authors scrutinise whether avenues for addressing such com­ plaints are provided for in cases falling within the scope of application of EU and national legal and policy measures governing border controls and surveillance as well as expulsions – with particular attention to expulsion by air under the so-called ‘joint return flights.’ The chapters also investigate whether complaints are actually followed up by the competent authorities.1 Attention is paid to the relationship existing between standing complaint mechanisms, access to rem­ edies, and the accountability standards developed by national and supranational courts and other relevant oversight bodies. The cross-cutting question guiding the research is thus the extent to which complaint mechanisms exist and are fit for addressing human rights violations deriving from the implementation of current and newly emerging bordering and expulsions policies, strategies, and technolo­ gies in the EU.

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Sergio Carrera and Marco Stefan

The Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has defined complaint mechanisms as including: all formal complaints lodged by, or sometimes on behalf of, persons deprived of their liberty against decisions, actions or lack of official action on a variety of issues, in particular: staff misconduct, inadequate protection from other persons deprived of liberty who may cause them harm, poor material condi­ tions, lack of activities or insufficient provision of health care. ‘Complaints’ qualify as such irrespective of the seriousness of the issues complained of and whether or not they could amount to ill-treatment. As is the case in several countries, the term ‘complaints’ may include actions aimed at challenging decisions taken by the relevant complaints bodies.2 Our understanding of ‘complaint mechanisms’ is not limited to the set of tools or procedures established to address formal complaints in the field of detention. In our analysis, we also give account of ‘the actors’ designed to, or having the pur­ poses of, delivering oversight and/or remedies in different operational settings, including border controls, border patrolling, and return operations. By focusing on both – instruments and actors – the analysis aims at verifying whether com­ plaint mechanisms are available and accessible for affected individuals in prac­ tice. We also investigate whether existing complaint mechanisms comply with the statutory, institutional, and organisational features required to deliver justice to victims of human rights violations, and therefore whether they can be qualified as ‘effective’ based on international and regional human rights standards. Attention is paid to the effectiveness of complaint mechanisms in ensuring access to justice at the moment when the person meets or interacts with state officials and other law enforcement authorities in cases of entry and expulsion inside and outside the state’s territory. For the purposes of our examination, the concept of complaint mechanism encompasses, first of all, the accountability instruments and bodies which are internal to the authorities responsible for border and migration enforcement. We focus as well on external supervisory and accountability structures. The latter include ex ante, ongoing, and ex post-oversight mechanisms mandated to monitor border and expulsion programmes and activities and entitled – in some cases – to receive complaints from affected individuals or persons/organisations repre­ senting them. These external actors cover, for instance, ombudspersons, national human rights institutions, or other similar national accountability bodies. Special attention is given to complaints mechanisms applying to actions or inactions by state and EU officials concerned with allegations of: first, human rights violations; second, disproportionate use of force or violence, as well as cases of abuses/mis­ treatment or unlawful behaviour; and third, the non-respect of other procedural or administrative guarantees. These are issues that prove to be most sensitive and pertinent in the scope of border surveillance as well as joint return flights in the EU context.

Introduction: justicing Europe’s frontiers

3

A ‘complaint’ can be differentiated from, and does not always correspond to, a right to appeal of administrative decisions based on immigration and asylum law. While acknowledging that differentiation, this volume critically investigates the relationship between ‘complaint mechanisms’ and ‘the right to appeal’ against those decisions taken by law enforcement actors in the scope of borders, asy­ lum, and expulsions law before an independent judicial authority. Such decisions include, for instance, refusals of entry in the Schengen territory and return or expulsions orders. The book provides a comparative account of the existence and role of complaint instruments and actors that allow the challenging of decisions on grounds of human rights violations and, in the case of the EU legal system, also on the basis of non-respect of procedural guarantees and rights enshrined in the scope of EU secondary legislation. Special consideration is given to the specifici­ ties pertaining the EU legal system regarding the scope and nature of ‘effective remedies’ in light of the EU Charter of Fundamental Rights.

I.2 Borders and bordering The meaning and functions of complaint mechanisms cannot be properly under­ stood without a prior contextualisation of the idea of ‘territorial borders,’ as well as of the conceptual and ontological flaws which inherently affect such a notion. The presence and purpose of structures and procedures designed to allow people on the move to complain against suffered abuses or mistreatment can only be justified in a context where ‘border politics’ aim at forcibly restricting some kinds of human mobility. The idea that borders constitute clearly identifiable lines demarcating an actual territory has long been considered and criticised by previous scholarship (Balibar 2004). The presence of an ‘existential border’ delimiting the territorial boundaries of nation states and their corresponding political orders has been by and large questioned. To date there is no clear evidence that borders actually function as ‘fortresses’ containing human movements. Their capacity to effectively and suc­ cessfully exclude, filter, and prevent entries of ‘the unwanted’ is far from being proved. Several authors have highlighted that borders are not always where they are supposed to be. The European Union and its so-called ‘Schengen system’ are perfect illustrations of the inherently unstable, geographically inconsistent, and politically dynamic nature of frontiers, as well as of the difficulty in identifying them neatly along the territorial lines of national and EU administrative entities nicely drawn in maps. The traditional borders narrative has proved to be largely fictional, often only living in the ambitions and imagination of some political and security actors (Bigo & Guild 2005). Mitsilegas has convincingly argued that a key legal change in contemporary border management involves the methods used. These crucially and incrementally engage ‘technology’ through the use of databases containing a wide range of elec­ tronic data on individuals and transposing a generalised large-scale surveillance of movement and identity (Mitsilegas 2015). Mitsilegas has also explored the limits of ‘the law’ in addressing the consequences of border controls over affected

4

Sergio Carrera and Marco Stefan

individuals. Surveillance technologies reveal how borders are not so much, or at least not exclusively, about physical spaces, and instead appear to represent the by-products of political and legislative choices, and theoretical constructs apply­ ing to predefined categories of individuals labelled as ‘risky.’ The increasing use of new technologies which focus on ‘surveyed mobility’ rather than on the pre­ vention of crossing and entry into specific territories have posed new questions in respect of access to remedies and justice. Addressing such questions become particularly compelling when border technologies are used or misused by national security and border officials adopting migration enforcement-related or coercive decisions upon the encounter of a particular individual. The notion of ‘bordering’ has been elaborated and explored by the literature as a more accurate analytical tool reframing the traditional idea of border, and facili­ tating a better understanding of the various transformations characterising fron­ tiers (Agnew 1994, 2008). The concept of bordering has been developed through critical contributions looking at the wider dynamics underlying border policies, and analysing some of the logics inherent to the use of frontier controls (Anderson 1996). Some scholarly research has highlighted the liberties and human rights impacts deriving from new forms of policing and filtering technologies used by states and their various administrative bureaucracies in the management of popula­ tions and human mobility (Bigo & Guild 2005). These bordering and re-bordering technologies are not ‘so much about territorialising and blocking entries,’ but rather appear directed at ‘governing through freedom and circulation, in a way in which the management of the unwanted never hinders the principle of move­ ment, . . .’ (Bigo et al. 2011). Bigo et al. (2011) have noted how law enforcement is often no longer located at the physical external borders of the state or the EU. The use of targeted migration control and border surveillance tools and practices can currently be observed in the different spaces and locations travelled by the individual under surveillance. New technologies and mechanisms for gathering, retaining, and exchanging data are being deployed for mobility management pur­ poses. Basaran (2011, p. 31) has pointed out how ‘liberal societies are using not territory, but law as bordering practice,’ and therefore ‘restricting liberties under liberal rule.’ A large part of the academic work just discussed finds inspiration from Guild’s ground-breaking and seminal contribution, Moving the Borders of Europe (Guild 2001; see also Groenendijk, Guild & Minderhoud 2002). Her examination of the changing nature and places of European borders has challenged the predominant academic wisdom which used to uncritically take for granted that EU borders coincide with the Schengen member states’ external geographical perimeter. She noted that EU borders are no longer defined in territorial terms but rather function as tools of containment and surveillance of mobile individuals. Guild has brought to light the dynamic de-linking of borders with physical places and unveiled their progressive reshaping as legal spaces which can be found in many locations, including third countries’ territories. Her work has shown that borders are currently legally designed to focus on the attributed characteristics of the indi­ vidual seeking to cross them. Borders are established ‘at a distance,’ for instance,

Introduction: justicing Europe’s frontiers

5

through restrictive and selective visa policies but also through the use of largescale information systems and databases. In her view, borders: apply to persons not on the basis of their physical position but on the basis of their nationality and individual characteristics. The most important challenge in respect of these changing borders is the right of an individual to know where these borders are and to have remedies where these borders conflict with his or her human rights. (Guild 2001, pp. 70–71) Indeed, irrespective of where and what these borders actually are in the EU con­ text, the question of access to justice and the effectiveness of ‘complaint mecha­ nisms’ crucially emerges in the precise moment when the individual meets the authority implementing a particular ‘border’ policy and experiences or suffers its often discriminatory, degrading, coercive, and even violent consequences. It is by now well known that migration management laws and policies are increasingly aimed at re-territorialising, delocalising, externalising, and out­ sourcing law enforcement and border management practices. Border control and surveillance practices are taking place in remote or dispersed locations. Encoun­ ters with state authorities no longer happen only at predefined border-crossing checkpoints. They frequently occur along dangerous mobility and transit routes. In some cases, contacts are not even physical but consist of the screening of per­ sonalised and de-personalised data. Information is increasingly collected, col­ lated, and used for the purpose of building profiles of ‘risky’ individuals based on prohibited grounds of discrimination. Data-driven migration management cur­ rently enables border and mobility control to happen in preventive fashions which impact the rights and freedoms of individuals even before they actually engage in the very act of ‘moving’. These developments and their inherent tensions with human rights have not passed unnoticed in the literature and in the work of international and regional human rights monitoring bodies. They have been amply explored by scholars who have proposed a range of notions aimed at capturing their meanings and implica­ tions. Concepts such as ‘policing at a distance’ (Bigo & Guild 2005), ‘remote con­ trol’ (Guiraudon 2002), ‘transnational law enforcement’ (Gammeltoft-Hansen & Vedsted-Hansen 2017),3 or ‘extraterritorial migration controls’ (Mitsilegas & Ryan 2010) are just a few illustrations of concepts describing old and new mana­ gerial attempts to create barriers and prevent specific categories of individuals from accessing and exercising their human rights while moving. A more recent strand in scholarship has observed how states are strategically avoiding pre­ established national and supranational decision-making processes and ‘the law’ altogether so as to escape existing forms of checks and balances. The democratic scrutiny and judicial controls that apply to EU and Member States’ policies in the fields of borders, migration, and asylum are often circumvented through resort to informal, non-binding, and often non-public avenues and instruments of coopera­ tion (Carrera et al. 2018a; Carrera, Santos & Strik 2019).

6

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The existence of innovative forms of ‘control’ and ‘exclusion,’ which do not always or necessarily happen in the very place where the external border is expected or supposed to be, does not prevent border and immigration manage­ ment and enforcement actions and inactions from taking place in territorially bound spaces. The erection of border fences and the establishment of ‘border tran­ sit zones’ in several EU countries demonstrate how specific locations are being created to enable the implementation of offensive and violent bordering decisions and practices. Examples of bordering practices analysed in this book include socalled ‘push backs’ operations – consisting of containment practices refusing or preventing entry and expulsion to a third country without any individual assess­ ment of protection needs, the use of force and violence against asylum seekers and third-country nationals at EU borders, unlawful detention and expulsions under the so-called ‘EU Hotspot model’ in countries like Italy or Greece, ‘hot returns’ at border points, and expedited expulsions to unsafe third countries. This book also illustrates how bordering politics are not being implemented only at the ‘external borders’ but also ‘inside’ the EU – e.g. between the Spanish and French territo­ rial borders – despite the expectation of a system free of internal border controls within the so-called ‘Schengen area.’ A wide array of different ‘border categories’ has been fabricated by states and their bureaucracies, which by now dispose of an arsenal of political tools, legal instruments, and technologies framing and reframing spaces and individuals as ‘insiders,’ ‘outsiders,’ or both. The chapters in this volume illustrate how the cocreation of different types of ‘bordering sites and layers’ is often, if not systemati­ cally, accompanied by practices of legal exclusions. Bordering instruments and structures correspond to precise ‘strategies of exception’ which are purposely – and yet sometimes unsuccessfully – designed to evade, delegate, or blur states’ legal obligations to protect the human rights of people seeking international pro­ tection, as well as of every individual aiming to move. Such practices of legal exclusions and strategies of exceptions allow EU and state actors to consider themselves less constrained by the law and therefore legally permitted to imple­ ment border management and expulsion operations that disregard applicable rules and fundamental rights standards. Friction between these evolving bordering practices and the rule of law calls for justice ‘mechanisms’ to readapt and readjust not only for the sake of their legitimation, but also to ensure effectiveness in the delivery of remedies to vic­ tims of fundamental rights violations. To better expose the sources of tension cur­ rently existing between justice and security in contemporary bordering policies and practices in the EU, our attention focuses on the existence and effectiveness of complaint mechanisms at the critical moment that sees the individual meeting the law enforcement official or agent. As already noted, these ‘points of control’ may be found anywhere, irrespective of whether the territorial external border actually is ‘within or outside a State’s territory, not just at its territorial border’ (Basa­ ran 2011). Our analysis concentrates in particular on ‘mechanisms’ allowing to redress the negative consequences resulting from actions or inactions by authori­ ties leading to the refusal or prevention of entry or the enforcement of expulsion.

Introduction: justicing Europe’s frontiers

7

I.3 Justicing and portable justice The literature has examined the ways in which ‘liberal states’ use the law or ‘the rule of law’ to artificially reframe territory and justify illiberal practices with an attempt to evade the obligation to treat non-nationals equally, and with dignity. Previous research has shown that limited, burdensome, or non-existent instru­ ments and venues for individuals to seek justice and obtain effective remedies in cases of human rights violations are a typical feature of ‘bordering’ policies. By design, there is an inherent challenge to guarantee effective access to remedies and justice to individuals affected by bordering practices. More research is, however, needed on the main issues and specific practical difficulties faced by transnational justice and human rights actors in adapting and readapting to rapidly evolving bordering practices. Such readaptation processes are in fact crucial to ensuring that the different authorities responsible for controlling and managing migration are effectively and dynamically captured by relevant national and transnational rule of law and human rights standards and actors. This book moves beyond existing examinations of how ‘justice’ is affected by current border management and expulsions, and advances existing aca­ demic knowledge with an assessment of the various ways in which the ‘jus­ ticing’ of such operations can be ensured in a context where border security players make instrumental uses or non-uses of ‘the law.’ Our study highlights how states’ attempts at evading responsibility and liabilities do not always succeed, and in particular analyses the ways in which state authorities and security professionals sometimes end up being recaptured by the very same laws they seek to escape from, or are strategically using (or non-using). In order to do so, we consider the role currently played by the set of national and transnational justice and human rights actors with mandates and competences to ensure implementation, compliance, and enforcement of human rights rules and standards in the context of border control, border surveillance, and expul­ sion operations. This book makes a first attempt towards a better understanding of how differ­ ent oversight actors can effectively challenge the legitimacy and redress abuses deriving from old and new bordering practices. We investigate the conditions under which justice and accountability agents can qualify as effective ‘sites and venues of justice’ in light of existing legal and human rights standards. The actors falling under our examination include not only courts and tribunals, but many other administrative institutions, such as ombudspersons and national human rights bodies. We focus on these structures because they may offer additional, and yet crucial, sites of resistance and contestation for individuals, human rights and refugee lawyers, and civil society actors, and may provide channels to seek remedies against unlawful actions and policies undermining human rights. Thus, our examination focuses on ‘the other side’ of the rule of law, that which actually scrutinises, limits, and might even sanction active or passive conduct of states and security authorities when they lead to mismanagement of mobility and human rights abuses.

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A side effect of the ‘Europeanisation’ process, the establishment of the Schen­ gen regime, and the consequent lifting of internal border controls has been that the border and migration law enforcement functions which were traditionally entrusted upon professional ‘border and coast guards,’ have now become de jure and de facto a responsibility shared with or fully under the remit of ‘police authorities’ and other internal and external security players. For those EU mem­ ber states not holding the Schengen external land borders, managing ‘migration’ currently falls under the mandate of EU and member states actors whose core tasks relate to prevention and countering of crime or even to hard security and defence rather than to the administration of human mobility and free circulation of individuals. The transfer and nearly constant redistribution of operational com­ petences have been accelerated by EU and national policies informed by a rather problematic understanding of migration – and also asylum – as actual forms of crime and potential security threats. At the same time, the multiplication of actors integrated in ‘EU migration management networks’ also determined a fragmenta­ tion and blurring of the accountability regimes and corresponding oversight and complaint mechanisms applicable to each of the different stakeholders (including third-countries’ authorities) formally or informally involved in EU ‘border con­ trol,’ ‘border surveillance,’ and ‘migration law enforcement’ activities (Carrera & Stefan 2018). Moreover, as Jeandesboz has argued, over the past several year what is meant by ‘border control’ has actively evolved in the EU context, whereby the concept of ‘integration border management’ implies that ‘although the check­ ing of border crossings as such still takes place, border control is overdetermined by surveillance’ (Jeandesboz 2011). Gammeltoft-Hansen and Vedsted-Hansen (2017, p. 2) have argued that ‘trans­ national law enforcement practices’ have ‘continuously been refined and tweaked, often in direct response to legal injunctions.’ They have pointed out that policy in these areas is characterised by what they call ‘creative legal thinking’ and political manoeuvring on the part of states. This encourages, they argue, ‘human rights law­ yers to think differently about how to approach the topic’ (Gammeltoft-Hansen & Vedsted-Hansen 2017, p. 2). They have called for new contributions to respond to states’ ‘creative legal thinking’ and outline a clear framework of accountabil­ ity capable of applying to different bordering/re-bordering and transnational law enforcement policies and practices. The relationship between bordering and jus­ ticing is indeed a ‘cat and mouse game,’ not only between ‘international human rights law and the policy practices of States’ (Gammeltoft-Hansen & VedstedHansen 2017), but also between the actors and professionals in the area of borders and those operating in the area of justice. This book takes up this invitation by exploring the notion of ‘justicing’ and ‘portable justice’ in contemporary bordering practices in the EU context – that is, through a critical study of the dynamic and delocalised administration and deliv­ ery of justice and effective remedies in cases of human rights violations caused by old and new law enforcement practices and actors in the areas of migration, asylum, and border management. Our working hypothesis is that accountabil­ ity and justice actors and venues bordering and policing dynamics, and often

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struggle to do so effectively. Against this backdrop, the ‘justicing’ of borders and expulsion policies appears as a key step to ensure the legitimation of national and transnational justice and human rights actors, instruments, and systems. Habermas observed how the ‘rule of law,’ ‘democracy,’ and ‘human rights’ are bifacial or have ‘two sides,’ as they can serve different functions (Habermas 2001). On the one hand, these principles and norms can be instrumentally used by ‘liberal states’ to justify actions and/or inactions that, in reality, undermine human rights standards. On the other, the same concepts present tangible poten­ tials for upholding and guiding the work of oversight structures responsible for the effective delivery of ‘checks and balances’ and safeguards where the use of authority and force is performed, supported, or outsourced (i.e. at the domestic, transnational, and supranational level). While the actual scope, validity, and relevance of the rule of law and human rights remain questions of discussion, these legal principles and values ‘set the standards in whose light the latent violations of their own claims can be discovered and corrected.’ As Habermas puts it, ‘[H]uman rights function at the same time as sensors for exclusionary practices exercised in their name’ (Habermas 2001). In substance, it appears that while the scope of liberties may be limited within ‘the liberal rule’ (Basaran 2011), the liberal rule might at the same time limit the scope and reach of new and old border control, surveillance, and immigration law enforcement strate­ gies and practices. The present book advances the notion that the ‘justicing’ of Europe’s borders and expulsion policies can be performed through the application of the notions of ‘portable responsibility’ and ‘portable justice’ (Carrera et al. 2018b). The con­ cept of ‘portable justice’ entails that whenever EU or member states’ authori­ ties act under the scope of EU law, they are also subject to the legality test and ‘effective remedies’ standards provided under the EU Treaties and acquis. The same test and standards apply when the EU and its member states interact and cooperate – directly or even indirectly through the provision of ‘support’ tools, funding, or ‘training’ – with third-country authorities in migration managementrelated activities. The specificity of the EU’s legal framework is that protection under the EUCFR does not depend on territoriality nor extraterritorial jurisdiction based on the actual existence or degree of ‘control’ and ‘authority.’ These concepts follow explicitly from Article 51 of the EU Charter of Funda­ mental Rights (EUCFR), which establishes that the duty to respect its provisions applies not only to EU institutions, bodies, and agencies but also member states actors ‘when they are implementing Union law.’ Whenever they do, they must ‘respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.’ Fundamental rights responsibility under EU law is therefore portable because it captures abusive practices regardless of where they take place. It extends to predefined ‘spaces’ administratively framed as ‘non-territories’ such as border zones and transit zones, but can also derive from abuses committed through coercive or law enforcement actions and/or inactions delivered or put into practice extraterritorially (i.e. beyond the territorial borders of the state).

10 Sergio Carrera and Marco Stefan Portable responsibility under EU law offers an extra layer of rights protection that can be used in addition to other important justice instruments and fora. This notion can in particular effectively complement the human rights safeguards of the European Convention of Human Rights (ECHR) and its system of jurisdic­ tion. In fact, the functional approach to fundamental rights protection adopted by the EU legal system (Moreno-Lax & Costello 2014) gives the possibility to assert responsibility for abuses without the hurdle of having to determine de jure or de facto control at the time and place when an action or inaction was performed. EUCFR compliance is required for any kind of initiative, action, or omission fall­ ing in the scope of EU law and policies, which currently covers border controls and surveillance and the processing of asylum claims and expulsions operations (Carrera et al. 2018b). The various guises and forms of portable responsibility under EU law apply irrespective of the actual nature, scope, or territorial reach of the migration management action under scrutiny. Abuses deriving from internal and external initiatives of the EU institutions, agencies, and bodies, and member states’ authorities – their failure to act within the scope of EU law or their attempts at evading or side-lining the use of EU law altogether – can all fall to varying degrees under different forms of EU portable accountabilities. When venues and mechanisms to ascertain and address these kind of portable accountabilities exist, are accessible, and effective, they have the potential to bring effective justice to affected individuals.4

I.4 The EU’s justicing specificity The EU and the Council of Europe (CoE) systems present different legal and jurisdictional rules and standards on access to justice and effective remedies with direct or indirect relevance to the areas of migration and border management. The distinctive features that characterise these two regimes, and their respective justice venues, also allow them to present potentials for mutually reinforcing and complementing each other in what has been coined as ‘constructive human rights pluralism’ (Costello 2016a). The first element of distinction concerns the type of protection provided by each of the systems. Legal scholars and experts have observed how ‘justice’ in the scope of the EU legal order is ‘more extensive’ in scope and fundamentals.5 Only the EUCFR systematically guarantees the right to claim and obtain an effec­ tive judicial remedy before a court or, in the wording of Article 47 of the Charter, the right to be heard before an ‘independent and impartial tribunal previously established by law’ (Peers et al. 2014). The expression ‘independent and impartial tribunal’ has been interpreted as encompassing both Union law judges and mem­ ber state judicial authorities, provided that the latter present certain standards of independence from the executive, and when their jurisdiction is compulsory.6 The requirement for a remedy to be of judicial nature derives from the general EU rule of law principle enshrined in Article 19(1) of the Treaty on European Union (TEU), according to which rights arising from Union law must be ‘effectively protected.’ In turn, protection of rights recognised under the EU legal system can

Introduction: justicing Europe’s frontiers

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only be ‘effective’ when delivered by independent judicial authorities which are entitled to ensure the enforcement of those rights and capable of redressing the consequences derived from their violation. In substance, a remedy can be con­ sidered ‘effective’ under EU law when it protects against any legislative, admin­ istrative, or judicial practice which might impair the effectiveness of EU law. Since only impartial and rule of law-based judicial authorities supply individuals with remedies which qualify as effective both in law and practice, EU member states are under the obligation to provide for and ensure access to avenues through which individuals can claim and obtain effective redress of any violations affect­ ing a right they are entitled to under EU law. Therefore, within the scope of the EU legal system, administrative complaint mechanisms can be no substitute for an effective right to appeal before an independent judge. EU migration, borders, and asylum legislation are no exception to that principle. Guarantee of access to remedies of a judicial nature is by contrast not system­ atically secured when it comes to cases concerning violations of human rights protected by international and regional law instruments (and their correspond­ ing mechanisms), which are not part of the EU legal system, such as the ECHR. This does not mean, however, that guaranteeing access to protection under such instruments is less relevant or effective. In fact, these justicing mechanisms run in parallel. When portable responsibility (and related judicial remedies) cannot be granted under EU law (e.g. when an abuse has been committed by a member state authority acting outside the scope of EU law), the ‘effectiveness’ of alternative or complementary remedies such as those provided by ‘complaint mechanisms’ in light of ECHR standards remains central in recapturing bordering practices. In this regard, it is equally central to note that when it comes to non-judicial remedies, EU law does not always follow the clear and high-level requirements developed at the CoE level to ensure ‘effectiveness’ of administrative complaint instruments and actors. The European Court of Human Rights (ECtHR) has estab­ lished that the ‘powers and procedural guarantees’ of ‘alternative remedies’ (i.e. non-judicial) are crucial factors for determining the effectiveness of the remedy provided.7 An important qualitative difference that emerges between the EU and CoE sys­ tems on non-judicial remedies regards the different standards of their respective independence and impartiality. This becomes clear when comparing the inde­ pendence characterising the network of national bodies part of the CoE’s CPT and those set up in the scope of the EU Returns Directive.8 Most notably, Art. 8 of this Directive states that it is for ‘Member States’ to provide for an effective forced-return monitoring system. Similarly, a worrying lack of independence also affects the ‘complaints mechanism’ envisaged in Article 72 of the EU’s European Border and Coast Guard (EBCG, also denominated Frontex) Regulation.9 When a complaint concerns a Frontex staff, the complaint procedures foreseen in the Frontex regulation largely rely on the discretionary power of oversight bodies which, being internal to the agency, lack impartiality and transparency. When any alleged abuses or ill-treatment is committed by national authorities, the follow-up of any complaint depends instead upon the often uncertain existence and fitness

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of institutions that, at the national or local level and on a case-by-case basis, are appointed to conduct investigations. Previous analysis has shown how the EBCG Regulation does not provide clear rules on allocation and implementation of accountability throughout the implementation of the joint border control and surveillance operations coordinated or led by the EU Frontex Agency (Carrera & Stefan 2018). A high level of fragmentation in accountability regimes still affects multi-actor bordering situations where ECBC officials act in close contact with member states actors but also with third-countries’ authorities. At the same time, research has shown the increasing operational tasks and involvement of EU home affairs agencies such as Frontex or the European Asylum Support Office (EASO) (Carrera, den Hertog & Parkin 2013). The accountability role played by liberty EU agencies and bodies such as the European Ombudsman, the European Court of Auditors (ECA), or the EU Fundamental Rights Agency (FRA) can be of increasing central importance in the justicing processes in the EU. These EU agencies and bodies appear to have the potential to supplement other existing domestic judicial and administrative remedies required under the EU legal system. If the latter are essential to deliver protection in the meaning of Article 47 of the Charter, the rights to good administration enshrined in Article 41 of the Charter can only be respected in a context where individuals are granted the possibility to access complaint mechanisms before other supranational bodies of administrative and/or quasi-judicial nature. Another aspect where the EU and CoE justicing systems diverge is constituted by the scope or width of protection recognised ratione materia. Ensuring access to justice and effective judicial remedies is a general requirement under EU primary law, but it also clearly emerges from a number of specific secondary law provi­ sions. In the area of border controls and surveillance, for instance, the Schengen Borders Code (SBC)10 requires effective judicial protection to be ensured against abusive actions or inactions of authorities in charge of border and immigration management. Judicial remedies can be activated for abuses linked to the perfor­ mance of border checks (Article 7 of the SBC) and situations related to refusals of entry (Article 14 SBC). Article 7 imposes upon authorities responsible for border checks on persons a precise legal obligation to behave in full compliance with human dignity, in a way that is proportionate to the objectives pursued and that does not result in discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. Article 14 stipulates that any refusal of entry into the common Schengen territory ‘shall be without prejudice to the application of special provisions concerning the right of asylum and to interna­ tional protection.’ It adds that a refusal of entry decision must be substantiated by stating the precise reasons in a standard form and must be subject to a right of appeal ‘in accordance to national law.’ Crucially, this provision of the SBC does not have a suspensive effect on a decision to refuse entry.11 At the same time, any conduct that departs from the behavioural and professional standards set forth in the above-mentioned SBC articles amounts to violations of rights enshrined in EU law provisions which are directly applicable or with direct effect. Such rights are ‘judicially cognisable’ and, in turn, grant affected individuals the right

Introduction: justicing Europe’s frontiers 13 to challenge their legality before a court. Annex II of the SBC provides that ‘at all border-crossing points’ information ‘shall be registered’ as regards ‘(d) persons apprehended and complaints (criminal offences and administrative breaches)’ and ‘(g) complaints from persons subject to checks.’ There is, however, no publicly available information regarding the actual scope of any complaints issued in this context. In the field of expulsions, the EU Returns Directive foresees in Art. 13.1 that third-country nationals concerned shall be afforded an effective remedy to appeal against or seek review of deci­ sions related to return before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.12 That same authority shall have the power to review return decisions and to sus­ pend their enforcement. The Directive also emphasises the need for third-country nationals to ‘obtain legal advice, representation and, where necessary, linguistic assistance.’ Furthermore, the Directive includes a number of additional procedural or administrative safeguards, such as the need for return decisions to be issued in written form and to provide reasons in fact and in law as well as information about available legal remedies. In the area of asylum, the judicial nature of remedies is equally essential. The Asylum Procedures Directive13 expressly foresees appeal procedures in Chapter V. According to Art. 46, appeals procedures entail a right for applicants to access a court or tribunal in order to obtain an effective remedy against a neg­ ative decision taken on their application for international protection. Nega­ tive decisions in this respect include those considering an asylum application unfounded, inadmissible, but also decisions taken ‘at the border or in the transit zones of a Member State’ or on the basis of the application of the concept of ‘European safe third country.’ These asylum procedure guarantees are very often put into jeopardy, particularly in cases of ‘accelerated border procedures.’ Here speed is also not a friend of the rule of law. Effective judicial protection proves to the contrary essential in a context where state authorities increasingly apply and controversially implement ‘safe third country’ notions (including those of ‘safe country of origin’ and ‘safe third country’) (Costello 2016b; Goodwin-Gill 1992). In general, the right to access an independent court in order to obtain effective remedies is guaranteed – at least in principle – against any EU member state’s actions or inaction that fall under the scope of EU law. As introduced above, com­ pliance with the EUCFR must be upheld irrespective of ‘where’ and under ‘whose control’ actions effectively take place, and irrespective of any territorial connec­ tion with the EU. Furthermore, the EU right to effective judicial remedy is not restricted to allegation of ‘fundamental rights’ violations. It also extends to any rights conferred to individuals by the law of the Union. Article 47 EUCFR cov­ ers ‘all rights’ and administrative guarantees enshrined in EU secondary legisla­ tion, which include those covered in the Schengen Borders Code, the EU Returns

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Directive, and the Asylum Procedures Directive. There is therefore a ‘functional relationship’ between the protections provided by EU law and member states and EU actors’ actions or inactions (Costello 2016a; Moreno-Lax & Costello 2014). Regardless of the type of rights affected, remedies must be ensured at least before a tribunal for the remedy to be qualified as effective. This is also reflected in Art. 19 of the Treaty on the European Union (TEU), which calls member states to ‘pro­ vide remedies sufficient to ensure effective legal protection in the fields covered by EU law.’ There is an intimate relationship between effective judicial protection and the rule of law. The latter can only be ensured if the rights formally recognised at the EU level can be effectively justiced. This book investigates the existence and effectiveness of mechanisms and bodies having the objective to oversee, scruti­ nise, and redress human rights violations in the context of border management and expulsions operations, including joint return flights procedures. It aims at contributing towards a better understanding of how and the extent to which exist­ ing legal and rule of law safeguards designed to oversee, investigate, and redress human rights violations apply to the various national and EU security authorities and actors currently performing border management and expulsion-related tasks. This examination becomes all the more important in a context where EU agencies such as the European Border and Coast Guard have become involved and coresponsible for the implementation of EU bordering policies.

I.5 Structure of the volume This volume is divided into three main parts, which are described here. Part I pro­ vides a comparative assessment of complaint mechanisms in the context of border controls and expulsions with specific focus on land and air borders. The authors describe the practical, legal, and procedural issues and challenges affecting the possibility to lodge complaints and have access to remedies for human rights vio­ lations suffered at the hands of border and law enforcement authorities operating at land and air borders, including in the context of expulsions operations and joint return flights. The analysis concentrates on a selection of EU member states, in particular Spain, Hungary, Poland, and Austria. Part I’s chapters study the exist­ ence and scope of various types of complaint mechanisms and the extent to which they are effective not only in the letter of the law but also in practice. López-Sala kicks off with an examination of the specific conditions of migra­ tion management in the territories of Ceuta and Melilla. Her chapter describes how border control operations and strategies applied to prevent entry into these Spanish enclaves lead to flagrant violations of the fundamental rights of migrants and asylum seekers. In order to do so, the author provides a transversal assessment of four distinct but interconnected issues: first, the practices put in place to block entrance into the territory; second, the obstacles that currently prevent access to international protection; third, the restriction of movement of asylum seekers; and four, the lack of adequate safeguards for particularly vulnerable immigrants. Her analysis shows that the bordering strategies adopted by Spanish authorities make

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it practically impossible for victims of abuses to file grievances or to hold authori­ ties accountable for fundamental rights violations. The chapter thus demonstrates that border control objectives have taken precedence over legality in migration policies and police actions. Such a result has been achieved through a series of legal reforms, administrative practices, and operational measures undertaken in the course of the past decade with the precise objective of restricting migration. The author observes, however, that these developments are in direct conflict with other pieces of Spanish legislation and international norms. In the meantime, the cities of Ceuta and Melilla are transforming into ‘black spots’ where the law is suspended. Barbero and Illamola-Dausà’s chapter further highlights the absence, in Spain, of complaint mechanisms specifically designed for foreigners in situations of arrest, detention, and expulsion. The chapter identifies several operational contexts where an individual’s right to complaint is not effectively delivered, the possibil­ ity to access legal defence is undermined, and existing remedies are ineffective or even suspended. These contexts include, first, the pushback operations occurring at the Spanish southern border with Morocco, and particularly at the fences of Ceuta and Melilla; second, the practices of returns towards another EU mem­ ber state, and notably across the Spanish northern border with France; and third, the expedited police expulsions executed within a maximum period of 72 hours from apprehension, which prevent the possibility of any judicial intervention and scrutiny. The authors note how only ‘generic procedures’ are available when fun­ damental rights are not respected by police and public servants in the context of border controls, surveillance, and expulsions. The authors also underline that depriving third-country nationals of a right to complain and effective remedies stands at odd with the legal obligations to which Spain is subject by virtue of the EU Treaties, secondary legislation, and international human rights instruments. The main challenges that affect foreigners’ fundamental rights to a due complaint/ defence are critically discussed by Barbero and Illamola-Dausà not only from a legal standpoint but also from a wider sociological perspective. In her chapter, Tóth brings light to the ways in which restrictive legislative measures and institutional changes introduced in Hungary in response of the socalled ‘refugee crisis’ render human mobility insecure and prevent access to fair asylum procedures. The author assesses the scope and effects of the construction of the barbed wire fence in Hungary’s southern border, as well as of the crea­ tion of a transit zone in which apprehended migrants seeking protection are con­ tained. She also gives an account of the pushbacks to Serbia, which are operated by Hungarian authorities outside of any formal procedure. The chapter shows that instead of putting in practice the EU principle of solidarity and fair shar­ ing of responsibility for asylum seekers, Hungary de facto externalised its border control and international protection duties by preventing the entry and physical presence of migrants and asylum seekers in its territory. Against this backdrop, Tóth highlights how the set of available remedies is ineffective and underlines the pressing necessity to apply the universal and regional human rights binding rules on complaint mechanisms. The chapter provides a clear illustration of how

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the laws and policies adopted to stem the entry of third-country nationals and deprive them of adequate complaint and justicing mechanisms have contributed to the fragmentation of the country’s rule of law and democratic governance. As long as the national unilateralism and populism in law enforcement continue to dominate, Tóth concludes, the commitment of Hungary to a common European asylum scheme and to the effective protection of basic fundamental rights safe­ guards will remain weak. Łysienia’s chapter illustrates how a third-country national’s entry and stay in Poland starts and ends up with the Border Guard. This is the authority responsible for conducting border controls, deciding on foreigners’ entry in Poland, but also managing detention centres, issuing return decisions, and executing return deci­ sions. Łysienia highlights how the choice to entrust to only one authority exten­ sive competences in policy areas particularly prone to human rights violations makes access to independent oversight bodies indispensable. Her chapter there­ fore provides a detailed examination of the legal framework, procedural mecha­ nisms, and practices that Poland has in place to enable the exercise of foreigners’ rights to appeal against the Border Guard’s decisions, and also to enable com­ plaints against the Border Guard’s actions or inactions. Łysienia identifies several factors which makes the existing complaint and accountability mechanisms not easily accessible for third-country nationals. She explains how a number of obsta­ cles of legal, administrative, and practical nature efficiently discourage foreigners from lodging appeals against decisions regarding a refusal of entry or return, and complaining about the absence of internal actions such as criminal or civil pro­ ceedings capable of delivering effective redress against suffered abuses. The first part of the book is closed by Brandl’s chapter, which focuses on Austrian law and the possibility it provides to activate redress procedures against return decisions, as well as against violations of human rights allegedly occur­ ring during deportation operations. Brandl notes that there is almost no juris­ prudence about abuses allegedly committed during deportations operated by Austrian authorities. She therefore interrogates the reasons behind the low num­ bers of these cases and investigates whether the figures are a result of the legal safeguards and oversight systems applicable to the exercise of direct administra­ tive power by the actors involved in the deportation process, or whether they can instead be explained in light of the fact that already deported persons do not exercise their right to bring remedies to courts once the deportation process has ended. The author analyses the features of a supervisory mechanism established under Austrian law in the aftermath of the death of a Nigerian national in the course of a deportation in 1999. The chapter discusses in particular the efficiency and independence of the supervisory mechanism in place to avoid human rights violations during enforced return by air. The author highlights how monitoring and accountability gaps still appear to affect deportation practices. Points of con­ cern are identified particularly with regard to the lack of independent monitoring over the different phases of a deportation and in relation to the identification and treatment of vulnerable persons and the separation of returnees from their families.

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Part II of the volume examines the very same issues of existence, accessibility, and effectiveness of complaint mechanisms but does so in the specific context of maritime border controls and surveillance at sea. Particular attention is paid to the cases of Italy and Greece, and the availability of complaint mechanisms and redress procedures against abuses that might arise in the context of border surveil­ lance and control operations conducted respectively in the Central and Eastern Mediterranean Sea. Campesi assesses the situation in Italy starting from the prem­ ise that the effective protection of human rights at the borders is strongly depend­ ent on the varying degree of accountability of the different actors and agencies performing border control functions in that country. The chapter critically ques­ tions the extent to which the existing accountability regimes applying to the police and other security forces involved in the control and surveillance of Italian mari­ time borders are adequate to ensure an effective protection of migrants’ human rights. In order to do so, Campesi proposes a typology of police accountability regimes and then provides a detailed investigation of the main issues and defi­ cits characterising the Italian police forces’ accountability in the scope of border surveillance as well as screening procedures at disembarkation, including at the so-called ‘Hotspots facilities.’ The chapter puts forward an analytical grid aimed at facilitating the evaluation of whether the Italian police accountability regime is adequate to meet the challenges to the protection of migrants’ human rights at the Italian maritime borders. The chapter of Carrera and Cortinovis examines the specific issues characteris­ ing access to effective remedies in the context of Search and Rescue (SAR) and disembarkation arrangements falling under maritime border surveillance opera­ tions in the Mediterranean. A key area of focus of this chapter is the extent to which access to justice and complaint mechanisms can be effectively guaranteed in a context where the European Border and Coast Guard (EBCG or Frontex) has actively disengaged from carrying out SAR operations. The authors also look at the types of remedies potentially available for fundamental rights violations that might derive from EBCG cooperation with Libyan authorities, and in particular cooperation taking the form of information sharing via EUROSUR, which alleg­ edly allows the Libyan Coast Guard to conduct ‘pullbacks’ operations. Attention is then paid to the accountability challenges that might derive from the recently introduced practice of redistributing individuals rescued at sea through ad hoc or ‘temporary’ disembarkation and relocation arrangements. In their chapter, the authors question whether it is possible to ensure respect of the rights of asylum seekers concerned by these arrangements and point at the impunity risks related to the decision to entrust the European Asylum Support Office (EASO) with the responsibility to support their operationalisation. Drakopoulou, Konstantinou, and Koros’ chapter explores the impact of EU border management policies on the respect of human rights of migrant and asy­ lum seekers in Greece and verifies which oversight mechanisms and effective remedies can be activated in that country. First, the authors focus on sea border management operations and the ways in which they have evolved following the adoption of the EU-Turkey Statement of 2016. They also analyse the effects of

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the restrictive policies of detention and geographical limitations imposed upon asylum seekers since the introduction of the controversial EU-Turkey deal. The authors proceed with the examination of border management operations in the Evros region and pay particular attention to practices related to surveillance, detention, deportation, and return/denial of entry. Their chapter reveals a concern­ ing lack of effective judicial remedies to challenge removal, detention, illegal pushback practices, and geographical limitation orders. It also shows how the existing oversight and complaint mechanisms have not succeeded so far in halt­ ing the major human rights violations that are interwoven with the existing border management legal framework and related implementation practices. Moraru and Nica conclude Part II of the book by addressing how Romania’s legal system has coped with the increase in the numbers of third-country nation­ als’ arrivals by both land and sea borders in recent years. First of all, their chap­ ter analyses the legal and institutional framework that the country developed to provide individuals with access to complaint mechanisms for fundamental rights violations occurring in border and migration management activities. Secondly, it explores the main gaps that, in law and practice, undermine the capacity of exist­ ing accountability structures to effectively investigate and redress abuses com­ mitted at the hands of the country’s border and immigration management actors. Taking into consideration the specificities of the domestic legal and institutional framework, as well as the interactions between the various legal professionals dealing with different aspects of border control, surveillance, and expulsions in Romania, the chapter identifies a number of ways in which access to justice and delivery of effective remedies could be improved. Part III of the volume complements the previous parts by delving into the analysis of whether and how existing accountability standards and mechanisms provided under EU law and regional and international human rights instruments can enhance fundamental rights protection of migrants and asylum seekers across Europe. Pirjola’s chapter addresses the specific question of how to effectively pro­ tect the human rights of migrants who are deported through forced-return flights. In order to do so, he first reviews the general principles that, according to EU and international human rights law, govern the functioning of a ‘good complaint mechanism’ in the context of expulsion procedures by air. He also identifies the features that distinguish a complaint mechanism from a monitoring body. The author then proceeds with the examination of the complaint mechanism of Frontex and assesses whether it is compatible with the principles of availability, accessibil­ ity, confidentiality, and safety, as well as that of accountability and effectiveness. These, the author finds, are the characteristics that compliant mechanisms should feature in the context of forced returns. The author then stresses the importance of establishing independent post-return monitoring mechanisms in order to improve access to remedies against abuses committed not only during joint return operations coordinated or run by Frontex but also in the aftermath of their implementation. Strik’s chapter deals with the accountability challenges that derive from an increasingly common border management policy implemented by several Euro­ pean countries that results in refusal of entry and expulsion decisions being made

Introduction: justicing Europe’s frontiers

19

without any individual assessment of protection needs of third-country nationals. The author documents how pushbacks have become a widespread phenomenon at Europe’s borders as well as on the territory of member states and maps the differ­ ent cases in Europe. She then sets out the EU and international legal framework prohibiting such practices and notes that pushbacks present a flagrant denial of the human rights of those prevented from entering Europe, beginning with the right of access to information, protection, due process, legal assistance, and legal remedies. The chapter proceeds with the description of the different mechanisms of judicial oversight and complaints that are in place and identifies specific factors that can determine their effectiveness. According to her findings, putting an end to impunity starts with structural independent monitoring at all levels, including monitoring external cooperation with third countries. The existence of national actors, including nongovernmental organisations (NGOs), signalling violations constitutes another crucial accountability and justicing factor. The level of inde­ pendence, as well as the powers and rights of these actors and their ability to access border regions and migrants, determine, in particular, their ability to observe, criti­ cise, and effectively challenge unlawful border management practices. The final chapter by Carrera and Stefan aims at providing a conclusive assess­ ment of whether adequate extrajudicial or administrative complaint mechanisms are in place in the different European countries covered by the book, as well as at the EU level. First, they retrace the main human rights standards that delineate the boundaries of national authorities’ executive powers in the implementation of bor­ der management activities and the conduction of joint expulsion operations. Sec­ ond, they outline in detail the guarantees that oversight bodies and accountability mechanisms are required to possess so as to qualify as ‘complaint mechanisms’ and have the potentials to succeed in redressing human rights violations in the context of border management and joint return flights. Third, they verify whether existing oversight bodies actually qualify as effective complaint mechanisms in light of the standards provided by the ECHR, as well as other relevant international, regional, and European Union legal standards. Based on the cross-examination of the other contributors’ analyses, the chapter then identifies a series of practical, legal, and procedural challenges currently affecting the possibility of lodging complaints and accessing effective remedies for human rights violations suffered at the hands of law enforcement authorities and other security actors and professionals operating at land, air, and sea borders, or in the context of expulsions operations, and in particular joint return flights. A set of conclusions is finally drawn to highlight practical ways forward that could be adopted to address existing gaps in human rights accountabil­ ity regimes of authorities involved in border and migration management.

Notes 1 Instruments designed with the aim of reviewing or challenging deprivation of liberty or detention are not covered in the scope of the assessment. 2 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2017, 27th General Report, Council of Europe, Strasbourg, p. 25.

20

Sergio Carrera and Marco Stefan

3 By ‘transnational law enforcement,’ Gammeltoft-Hansen and Vedsted-Hansen under­ stand (2017, p. 15): a broad range of activities through which law enforcement activities are carried out either by or on behalf of States beyond their borders . . . the term transnational was chosen to bring attention to the continuous link between the law enforcement activities themselves and the State acting transnationally. (footnote 5) 4 The notion of portable justice has been used in the U.S. in the field of labour migration law by the Global Workers Justice Alliance (new name: Justice in Motion; see www. globalworkers.org/advocates/defender-network and http://justiceinmotion.org/) and Centro de Derechos del Migrante (Mexico). 5 FRA. https://fra.europa.eu/en/charterpedia/article/47-right-effective-remedy-and-fair-trial. 6 CJEU, Case 14/86 Pretore di Salò [1987] ECR 2545 [7]. 7 ECtHR, Klass v Germany, Application No. 5029/71, 6.09.1978, (1979) ECHR Series

A no 28. 8 Directive 2008/115/EC of the European Parliament and of the Council of 16 Decem­ ber 2008 on common standards and procedures in member states for returning illegally staying third-country nationals, L348/98, 24 December 2008. 9 Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 Sep­ tember 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No. 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No. 2007/2004 and Council Decision 2005/267/EC. 10 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), L77/1, 23 March 2016. 11 Art. 14 SBC additionally states: Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to correction of the cancelled entry stamp, and any other cancellations or additions which have been made, by the Member State which refused entry. 12 Directive 2008/115/EC of the European Parliament and of the Council of 16 Decem­ ber 2008 on common standards and procedures in Member States for returning ille­ gally staying third-country nationals, L348/98, 24 December 2008. 13 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), L 180/60, 29 June 2013.

References Agnew, J. (1994), ‘The Territorial Trap: The Geographical Assumptions of International Relations Theory’, Review of International Political Economy, Vol. 1, No. 1, pp. 53–80. Agnew, J. (2008), ‘Borders on the Mind: Re-Framing Border Thinking, Ethics and Global Politics’, Ethics & Global Politics, Vol. 1, No. 4, pp. 175–191. Anderson, M. (1996), Frontiers: State Formation in the Modern World, London: Polity Press. Balibar, E. (2004), We, the People of Europe? Reflections on Transnational Citizenship, Princeton & Oxford: Princeton University Press, Chapter 6. Basaran, T. (2011), Security, Law and Borders: At the Limits of Liberties, Routledge Stud­ ies in Liberty and Security, London: Routledge. Bigo, D. & Guild, E. (2005), Controlling Frontiers: Free Movement into and Within Europe, Aldershot: Ashgate.

Introduction: justicing Europe’s frontiers

21

Bigo, D., Jeandesboz, J., Ragazzi, F. & Bonditti, P. (2011), ‘Borders and Security: The Dif­ ferent Logics of Surveillance in Europe’, in S. Bonjour, A. Rea & D. Jacobs (eds.), The Others in Europe, Brussels: Editions de L’Universite de Bruxelles, pp. 77–89. Carrera, S., den Hertog, L., Kostakopoulou, D. & Panizzon, M. (2018a), The External Faces of EU Migration, Borders and Asylum Policies: Intersecting Policy Universes, Leiden: Brill Nijhoff. Carrera, S., den Hertog, L. & Parkin, J. (2013), ‘The Peculiar Nature of EU Home Affairs Agencies in Migration Control: Beyond Accountability Versus Autonomy?’ European Journal of Migration and Law, Vol. 15, No. 4, pp. 337–358. Carrera, S. & Stefan, M. (2018), Complaint Mechanisms in Border Management and Expulsion Operations in Europe: Remedies for victims of Human Rights Violations? Brussels: CEPS. Carrera, S., El Qadim, N., Fullerton, M., Garcés-Mascareñas, B., Kneebone, S.Y., López-Sala, A., Luk, N.C. & Vosyliūtė, L. (2018b), Offshoring Asylum and Migration in Australia, Spain, Tunisia and the US: Lessons Learned and Feasibility for the EU, Brussels: OSEPI. Carrera, S., Santos, J. & Strik, T. (2019), Constitutionalising the External Dimensions of EU Migration Policies in Times of Crisis: Legality, Rule of Law and Fundamental Rights Reconsidered, Cheltenham: Edward Elgar Publishing. Costello, C. (2016a), The Human Rights of Migrants and Refugees in European Law, Oxford: Oxford University Press. Costello, C. (2016b), ‘Safe Country? Says Who?’ International Journal of Refugee Law, Vol. 28, No. 4, pp. 601–622. Gammeltoft-Hansen, T. & Vedsted-Hansen, J. (2017), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and Migration Control, Routledge Stud­ ies in Human Rights, London: Routledge. Goodwin-Gill, G.S. (1992), ‘Safe Country? Says Who?’ International Journal of Refugee Law, Vol. 4, No. 2, pp. 248–250. Groenendijk, K., Guild, E. & Minderhoud, P. (2002), In Search of Europe’s Borders, Immi­ gration and Asylum Law and Policy in Europe, Volume: 5, Leiden: Brill. Guild, E. (2001), ‘Moving the Borders of Europe’, Inaugural Lecture, Radboud University Nijmegen, Faculty of Law, Issue 14. Guiraudon, V. (2002), ‘Before the EU Border: Remote Control of the “Huddled Masses” ’, in K. Groenendijk, E. Guild & P. Minderhoud (eds.), In Search of Europe’s Borders, Kluwer Law International, pp. 191–214. Habermas, J. (2001), The Post-National Constellation: Political Essays, Cambridge, MA: MIT Press. Jeandesboz, J. (2011), ‘Beyond the Tartar Steppe: EUROSUR and the Ethics of European Border Control Practices’, in J.P. Burges & S. Gutwirth (eds.), A Threat Against Europe? Security, Migration and Integration, Brussels: VUB Press, pp. 111–131. Mitsilegas, V. (2015), ‘The Law of the Border and the Borders of Law Rethinking Border Control from the Perspective of the Individual’, in L. Weber (ed.), Rethinking Border Control for a Globalizing World: A Preferred Future, London: Routledge, pp. 14–32. Mitsilegas, V. & Ryan, B. (2010), Extraterritorial Immigration control: Legal Challenges, Leiden; Boston: Martinus Nijhoff Publishers. Moreno-Lax, V. & Costello, C. (2014), ‘The Extraterritorial Application of the Charter: From Territoriality to Facticity, the Effectiveness Model’, in S. Peers, T. Hervey, J. Ken­ ner & A. Ward (eds.), The EU Charter of Fundamental Rights: A Commentary, Oxford: Hart Publishing, pp. 1657–1683. Peers, S., Hervey, T., Kenner, J. & Ward, A. (2014), The EU Charter of Fundamental Rights: A Commentary, Oxford: Hart Publishing.

Part I

Complaint mechanisms in the context of border controls and expulsions at land and air borders

1

Keeping up appearances Dubious legality and migration control at the peripheral borders of Europe. The cases of Ceuta and Melilla1 Ana López-Sala

1.1 Introduction The analysis of political and police practices of border and internal control in Spain over the past two decades reveals that the Spanish state’s determination to control irregular migration has completely superseded its obligation to provide protection. Various national and international reports have repeatedly highlighted how this approach systematically infringes on the basic rights of migrants and asylum seekers who have attempted to enter or settle in Spain (Asociación proderechos humanos de Andalucía 2018; Defensor del Pueblo 2016; Amnistía Inter­ nacional 2014; Médecins sans Frontières 2013; Comisión Española de Ayuda al Refugiado 2017). The violation of the rights of immigrants is even more intense at the peripheral Spanish territories in North Africa, Ceuta and Melilla (Amn­ istía Internacional 2016), which have become ‘limboscapes’2 (Ferrer-Gallardo & Albet-Mas 2016) operating under a permanent ‘state of exception’ (Agamben 1998; Ferrer-Gallardo & Gabrielli 2018). The systematic violation of the basic rights of immigrants at border areas is causing increasing concern among international and European institutions (see, for instance, European Union Agency for Fundamental Rights 2013). In order to ensure that these rights are respected, a growing number of international insti­ tutions are highlighting the need for the inclusion of complaint mechanisms in the implementation of proactive and reactive measures of migration control (Barbero & Illamola 2018).3 In a recent report, Carrera and Stefan also men­ tioned the disconnection observed in a number of European countries between the formal acknowledgement of migrant and refugee rights and the real imple­ mentation of effective access to legal protection (Carrera & Stefan 2018; see also Carrera & Stefan, this volume). Studies have found evidence that in Spain there are legal gaps and practical difficulties that hinder filing complaints about rights violations in the expulsion of migrants (Barbero & Illamola 2018). The situation is even more extreme in Ceuta and Melilla, where preventative and repressive approaches to border and internal control practices have been implemented that are based almost entirely, with just a few exceptions, on containment (LópezSala & Godenau 2016).

26 Ana López-Sala Over the past two decades, experts have described the autonomous Spanish cities Ceuta and Melilla as enclaves for migrations and scenarios in which the most aggressive European control policies are applied (Ferrer-Gallardo 2008; López-Sala 2015b). The cities have become icons of Fortress Europe (van Hou­ tum 2010) due to geographic and political factors that make them distinctive areas of the Spanish border system. First, they are isolated and peripheral cities located in Africa. Second, they have a ‘dual border,’ resulting from their special status within the Schengen agreement (Ferrer 2008; López-Sala 2015a). In terms of controlling irregular immigration, their political status requires: a) control­ ling both their outer border with Morocco (8 and 12 km, respectively) and the maritime border that lies between them and the Spanish mainland; and b) by extension, the specific application of intra-territorial measures to control mobility of third-country nationals who wish to travel from these cities to the mainland. This has transformed them into areas in which legally regulated forms of limit­ ing mobility and spatial confinement are applied. Finally, both cities have idi­ osyncratic mobility patterns, because they form part of a transnational labour market that includes daily back and forth movements of salespeople and workers who travel to the two cities from the surrounding regions of Morocco (FerrerGallardo & Gabrielli 2018).4 How are the basic rights of migrants and asylum seekers violated when they attempt to enter Europe through these territories? What political, legal, and police practices give rise to these violations and make it impossible for immigrants to access legal recourse and complaint mechanisms? What strategies have been developed by the migrants and associations that defend human rights to make up for this deficit? This chapter examines the specific conditions and various aspects of migration control in these peripheral territories, how they lead to the violation of the rights of migrants and asylum seekers, and how they limit, constrict, and hinder effec­ tively filing complaints. We will present a transversal analysis of four analytical elements that vividly summarises the predominance of control over the respect for basic rights: the practices that block entrance into the territory; the restrictions and obstacles put in place to hinder access to international protection; the restriction of movement of asylum seekers; and, finally, and more succinctly, the lack of protec­ tion for particularly vulnerable immigrants. The text will argue that the measures applied to control migration flows in Ceuta and Melilla flagrantly violate the fundamental rights of migrants and that the conditions they impose make it practically impossible to file griev­ ances or to hold authorities accountable for those violations. It also highlights how the principle of control has taken precedence over legality in migration policies and police actions. Specifically, over the past decade a series of legal reforms, administrative practices, and operational measures have been car­ ried out that restrict migration in a way that violates Spanish legislation and international law, transforming these cities into black spots where the law is suspended.

Keeping up appearances 27

1.2 The violation of the right to access the territory. practices and controversies regarding hot returns Spain’s collaboration with Morocco to externalise its migration policy has had a major impact on the preventative, spatial, and physical control of migrants and asylum seekers who attempt to enter Ceuta and Melilla through its border perim­ eters. Quickly blocking access is part of a tactic, defined by the police as an ‘antiintrusion strategy,’ which combines police action and physical barriers.5 However, even if immigrants or asylum seekers manage to pass through the border areas and enter Spanish territory, their basic rights will continue to be violated. The most obvious example has been, without a doubt, a reactive strategy in which migrants are immediately expulsed to Moroccan territory, known as ‘hot returns.’ 1.2.1 From denial to dubious legality Ever since the perimeter border structures were built around Ceuta and Melilla in the second half of the 1990s6 there have been signs that migrants are being irregu­ larly returned to Moroccan territory by Spanish authorities. During the first few years of the past decade, social organisations working in theses autonomous cities and local media have documented multiple cases in which sub-Saharan immi­ grants were returned to Morocco without due process. The increased attempts to gain entry in 2005 brought this issue into the public debate and the expression ‘hot returns’ was coined.7 In November of that year, the Spanish Ombudsman testified before the Congress of Deputies that these kinds of returns were taking place, including to migrants who had been acknowledged as refugees by the UN Refugee Agency (UNHCR), emphasising that this violated Spanish legislation on immigration and asylum.8 Despite the complaints lodged by international organi­ sations, which pointed out the use of heavy police violence in these procedures (Amnesty International 2006), these irregular practices were repeatedly denied by government administrations of both major parties until well within the current decade. One of the ways the Spanish government has dealt with these accusations has been to use physical obstruction or the threat of sanctions to impede or make it impossible for activists or journalists to visit the areas around the border fences (Benítez, Solís & Serván 2015). In 2013, another spike in the number of collective attempts to cross the perim­ eter borders reopened the public debate,9 but the turning point in the political debate on these practices came in 2014 (Garcés-Mascareñas 2016; López-Sala 2015a). The tragedy at El Tarajal (Ceuta) in February, 2014, and the publication of various videos recorded by the NGO Prodein that showed these hot returns taking place in Melilla were heavily criticised, not only for the violence that was employed by Spanish security forces but also because there was finally video evidence of what had been an open secret, despite the continual denials made by different governments.10 These events led various social organisations to present a lawsuit leading to the indictment of the head of the Civil Guard in Melilla. In

28 Ana López-Sala response to the evidence of these hot returns, the Spanish government and the Ministry of the Interior11 argued that these actions were not irregular or illegal because they were not returns ‘per se’ but rather ‘border rejections.’12 In the second half of 2014, the ruling Popular Party used its parliamentary majority to try to give legal coverage to these returns. In a controversial move, it urgently included an additional provision that introduced a special regime for Ceuta and Melilla within the reform of the Public Safety Law that was approved in December of that year. According to this reform, ‘[F]oreigners detected on the boundary line between Ceuta and Melilla attempting an unauthorised crossing of the border in a clandestine, flagrant or violent way shall be rejected in order to prevent their illegal entry into Spain.’13 The social and political backlash to this attempt to legalise these returns was unanimous. Moreover, legal reports dic­ tated that the reform violated national and European legislation (Cuadrón 2018; Fernández-Pérez 2014; González-García 2014; Martínez-Escamilla et al. 2015). The reform was also rejected by every opposition political group and by highly diverse social and legal organisations, among them the Episcopal Commission on Migrations, the Immigration subcommittee of the General Council of Spanish Lawyers, Judges for Democracy, and the Progressive Union of Prosecutors. In October 2014, more than 20 social and legal organisations presented a letter14 to the Special Rapporteur on the human rights of migrants, François Crépeau, ask­ ing for his support to paralyze this legal reform.15 The European Commissioner for Migration, Dimitris Avramopoulos, indicated that the European Commission would take measures against Spain if it were confirmed that the reform violated European legislation.16 In January 2015, the Commissioner for Human Rights of the Council of Europe, Nils Muiznieks, stated that the reform contravened inter­ national law and put the asylum system at risk.17 Yet despite this broad national and European social and political contesta­ tion, the Spanish government remained steadfast in these measures, using every resource at their disposal to maintain them. They also constructed a fear-based narrative of chaos and crisis, with arguments such as that migrants were grow­ ing increasingly violent in their attempts to storm the border or that there was an enormous ‘pool’ of irregular immigrants waiting in Morocco to try and enter European territory. 1.2.2 From political tricks to illegal practices: the tragedy at El Tarajal, the concept of ‘operational control’ at the border and wet pushbacks On the morning of 6 February 2014, several dozen immigrants tried to swim 30 metres around the border breakwater that separates Spain and Morocco to El Tara­ jal, a beach in Ceuta. While they were still in the water, a unit of Spanish Civil Guards tried to stop them from reaching the beach by using rubber bullets and tear gas. Fifteen immigrants died in the attempt. The 23 immigrants who managed to reach the beach were immediately returned to Moroccan authorities. They later reported the use of anti-riot material and accused the Civil Guard of not lending

Keeping up appearances 29 aid to the victims who died from drowning and of employing violence to stop the others from reaching the beach. This is one of the darkest episodes of the recent history of migration control in Spain and even today, five years after the trag­ edy, what exactly happened that morning in February is still unknown. At first, both the Commander of the Civil Guard, and the Government Delegate in Ceuta, denied the use of anti-riot material, something that was finally admitted by the Minister of the Interior in his appearance before the Congress of Deputies at the end of February 2014, when he stated that they had made ‘rational use of legal means to deter these individuals from reaching the Spanish coast’.18 His testimony revealed the political narrative and tricks used to justify and legitimise the use of hot returns before the general public, referring to it as ‘operational control’ at the border.19 According to this concept, the section between the border fences (there are two in Ceuta and three in Melilla) is not considered Spanish territory; in order to reach Spain, migrants attempting to breach the border perimeter would also have to cross the interior fence.20 In reference to the containment of the immi­ grants that attempted to swim to El Tarajal, as there are no fences on the coastal maritime areas, according to this operational definition ‘the Spanish border mate­ rialised and was made visible by the line of security agents.’ The legality of the police actions based on this operational definition of the border has been broadly questioned by experts, who argue that it ‘lacks a legal foundation’ or is ‘legally inadmissible,’ since international borders cannot be defined politically or on sup­ positions of action but are instead governed by international treaties that must be complied with (Fernández-Pérez 2014; García-Andrade 2015; González-García 2015; Martínez-Escamilla et al. 2014; Sánchez-Tomas 2018). The incident at El Tarajal tragically highlighted how hot returns were not only occurring at perimeter land borders, but also in attempts to reach Spain through its maritime border (swimming or on small vessels that sometimes reach islets under Spanish rule located in front of the coast of Morocco). Perhaps the most wellknown episode, partly because it was the first covered by the media, was when 73 sub-Saharan immigrants were returned to Moroccan territory after they had reached Isla de Tierra (Alhucemas Islands). This incident led to an investigation by the Ombudsman, whose report again concluded that the return violated Span­ ish and international law and could not be justified, as the government attempted, by applying the agreement of readmission signed with the Moroccan govern­ ment21 (González-García 2014; Defensor del Pueblo 2013). In October 2013, two Cameroonian citizens sued Spain for this return at the European Court of Human Rights (ECHR).22 In their suit, they asked the court to condemn Spain for hav­ ing carried out a collective return, denying them access to legal assistance and the possibility of requesting asylum (Comisión Española de Ayuda al Refugiado 2013; see Barbero & Illamola this volume). Although this kind of return has continued to be carried out over the years, as reflected by repeated expressions of concerns by pro-human rights organisa­ tions23 and investigations by the Ombudsman (Defensor del Pueblo 2016), the amorphous nature of maritime borders and their inaccessibility compared to the imposing physical presence of the fences at the perimeter land borders, largely

30 Ana López-Sala explains why there are fewer documented cases and why these wet pushbacks have been less present in public debates. The practice of hot returns seems to have been consolidated24 as one of the key mechanisms of the political framework created by the Spanish state to contain immigration and access to asylum at its Ceuta and Melilla borders. Moreover, it has been done at the expense of migrants’ fundamental rights. During the past decade the Spanish state has denied these practices, then denied their illegality, and then finally claimed to be carrying out a legal reform (the introduction of the 10th additional provision to the Public Safety Law) in order to provide legal coverage for the practice (see Carrera & Stefan, this volume). Nevertheless, as pointed out by Barbero and Illamola, ‘its inclusion in the legal text does not guar­ antee respect for international commitments to human rights’ (Barbero & Illa­ mola 2018, p. 117). Margarita Martínez-Escamilla has argued that these practices reveal that in the area of migration control ‘the Spanish government has acted outside the law’ (Martínez-Escamilla et al. 2014), violating basic principles, such as providing legal assistance and access to an effective asylum procedure, and the principle of non-refoulement (Martínez-Escamilla 2017). Despite the force­ fulness of the international reports, including the recent report from the Council of Europe’s Special Representative on Migration and Refugees, Tomáš Boček (Council of Europe 2018), the new socialist administration in Spain has main­ tained these measures since it took control of the government in May 2018. In matters regarding immigration and asylum, the actions of the Spanish state in these enclaves have been based on the ‘principle of crisis’ (López-Sala & Gode­ nau 2017), legitimising the application of extraordinary legal measures (FerrerGallardo & Gabrielli 2018) that have turned these enclaves into legal, as well as spatial, limbos.

1.3 The violation of international protection rights: from hot returns to the violation of rights inside Spanish territory The externalisation of Spain’s migration control policy and summary expulsions have turned Ceuta and Melilla into areas of exception in terms of international protection, because of the near impossibility of entering the territory25 and the practical difficulties involved in applying for asylum at the border. In this area, contention and dissuasion to effectively control the flows of refugees take prec­ edence over international protection for highly vulnerable people. We should remember that there is no protocol to identify if the people tak­ ing part in the irregular crossings at land borders need international protection, including unaccompanied minors and victims of trafficking. In fact, until Sep­ tember 2014, there were no offices that could process requests for asylum at the border crossing points at Beni Enzar (Melilla) and El Tarajal (Ceuta). It is reveal­ ing that until 2014, not a single asylum request was processed at the land borders of Ceuta and Melilla, even though Spanish law has contemplated asylum since the mid-1990s.26 In practice, until 2014, refugees could only request asylum once they actually entered the territory of either of these cities, usually in the CETIs

Keeping up appearances 31 (Temporary Holding Centres).27 It is also important to underscore that these two asylum offices were opened in the middle of the European debate on the asylum system, largely due to pressure from UNHCR and the international community to deal with the increased arrivals of Syrian families to the city of Melilla since the middle of 2013. However, the difficulties for asylum seekers do not end once they enter one of these cities. After the last reform of the Spanish Asylum Law in 2009, the Secretary of State for Security began to apply an administrative procedure that restricted the mobility of refugees requesting asylum who wished to travel to the Spanish mainland. The government justified this practice on ‘the special sta­ tus’ that Ceuta and Melilla had within the Schengen Agreement, in which Spain reserved the right to maintain documentary checks at the connections between those cities and the mainland (González-García 2015; Valles 2016, p. 241). The Secretary of State for Security argued that the ID card issued to asylum seekers that was given to refugees while their requests were being processed was not valid for travel, which led to the denial of travel permits to asylum seekers who wanted to move to other parts of the country.28 This administrative barrier has transformed Ceuta and Melilla into what some migrants have called a ‘golden cage’ (LópezSala 2015b), because the request for asylum also meant that they would be held against their will in these cities, a physical retention that could last months or even years, until the application was resolved; meanwhile, irregular immigrants are regularly moved to the mainland under a programme for humanitarian reloca­ tions.29 This serious restriction of their movement could be considered a tactic to dissuade refugees from requesting asylum, another piece of the complex puzzle of migration control in Spain (López-Sala 2015a). In fact, many people in need of international protection do not request asylum, preferring instead to be included in the transfer programme for irregular immigrants so that they can reach continental Europe. In recent years, UNHCR and the Spanish Ombudsman have denounced this selective immobilisation as contrary to Spanish asylum law and claim it vio­ lates the principle of equality of treatment (UNHCR 2013; Defensor del Pueblo 2013). In a 2013 report, the Ombudsman stated that ‘these practices affected the credibility of the Spanish protection system and exacerbated the vulnerability of these people’ (Defensor del Pueblo 2013, p. 52). Despite the fact that various judi­ cial decisions have declared this practice illegal,30 it is still applied today. In addition to having their movements restricted, asylum seekers are also physi­ cally confined and segregated in the CETIs. These centres are located in peripheral areas of Ceuta and Melilla that are difficult to access. As mentioned, the refugees may be confined in them for months or even years, because unlike other holding centres there are no legally defined time limits on how long they can be held there. Moreover, because the centres have limited resources, they are frequently, if not systematically, overcrowded. In many cases, this means that families are physi­ cally separated and the risk of abuse and violence against minors, women, and LGTB people increases. They also do not have specialised resources for asylum seekers, since the centres are not part of the reception system and lack the capacity to identify victims of trafficking. Finally, organisations that work in this area have

32 Ana López-Sala also detected cases of individuals being kicked out of these centres, apparently for not following some of the centre’s rules; given their lack of resources, this usually means that these people are forced to live on the street. The lack of specific regula­ tions for these centres make these actions arbitrary and discretional, subject to the will of the directors of the centres (Jesuit Refugee Service 2018). Not guaranteeing the basic rights of non-accompanied minors in both cities has also been broadly criticised by national and international organisations for over two decades (Harraga 2016; Human Right Watch 2002; Save the Children 2018; Servicio Jesuita a Migrantes 2018). The violation of those rights begins when they attempt to access the territory (with the practice of hot returns) and continues after their arrival, with many serious issues, including not providing them information regarding international protection or legal assistance. The breadth and scope of the violations of the rights of non-accompanied minors has been the subject of intense public debate because their exclusion has become chronic and the institutions responsible for their protection in the autono­ mous cities and central government have done nothing to remedy the situation, despite numerous reports and recommendations from the United Nations and the Ombudsman (UNCRC 2010; Defensor del Pueblo 2012). Although this is an extremely complex issue, it is important to mention at least three aspects that reveal the extreme vulnerability of these minors and the enormous difficulties they face. First, there are problems with the procedures used to assess the age of the minors. In accordance with the Protocol for Non-Accompanied Minors approved in May 2014, if there are doubts about the age of any immigrant or asylum seeker, the State’s Attorney can authorise medical tests to be carried out. Beyond the controversy that exists regarding the reliability of these tests, the Ombudsman has repeatedly recommended that they not be carried out, as habitually occurs, when immigrants have documents certifying that they are minors (such as a birth certificate or passport) and to respect the principle of presumption of minority (Defensor del Pueblo 2018). The second aspect is the terrible overcrowding and deplorable facilities in the centres for minors in both cities, along with reports of abuse and lack of special­ ised attention (Save the Children 2018; Servicio Jesuita para los Migrantes 2018). In a report from March 2018, the United Nations Committee on the Rights of the Child was especially forceful regarding this aspect, recommending that the Span­ ish government urgently establish ‘adequate reception facilities for children, with specialised legal assistance, adequately trained interpreters and child-friendly ser­ vices’ (UNCRC 2018, p. 13). This report was also extremely concerned with the ‘high level of violence against minors in these centres, the inadequate nature of treatment and protection provided by professionals, and the insufficient access to regular education and leisure activities.’ It urged the Spanish state ‘to resolve this situation and develop effective mechanisms to receive and address complaints from children in protection centres’ (UNCRC 2018, pp. 13–14).31 Finally, the organisations that work in these cities have denounced the poor practices of local administrations in processing documentation for the minors in

Keeping up appearances 33 their care, especially emitting or renewing residence permits. This is especially pernicious for adolescents who are about to reach adulthood, because it could mean that they end up transitioning to irregular status when they turn 18, despite often having resided in Spain for years. It could even lead to an order of expul­ sion. Humanitarian organisations consider this practice to be a violation of their fundamental rights and exacerbates the difficulty of these immigrants to register in the Municipal Register when they become adults. Administrations not meeting their obligations, their poor practices, and the administrative obstacles that have been put in place have been the subject of various complaints by the Ombudsman, the Juvenile Protection Service, and of various lawsuits brought by the legal ser­ vices of various social organisations (Servicio Jesuita para los Migrantes 2018). In light of this situation, we have to question the rationale behind these political and administrative measures which violate the rights unaccompanied immigrant minors, put their physical integrity at risk, and force them to live in poor condi­ tions in these two cities. It transmits a clear message that they are not welcome and could be interpreted as yet another layer in the dissuasion apparatus that excludes immigrants and makes them more vulnerable.

1.4 Illegal after all? Taking giants to court When their fundamental rights are violated, immigrants and refugees can file administrative complaints with the Ombudsman.32 As we have seen, these com­ plaints have led this institution to make many recommendations to the govern­ ment to resolve these issues. It has also initiated ex officio actions as a result of the visits it habitually makes to Ceuta and Melilla. Pro-migrant rights organisa­ tions can also receive complaints and transmit them to the Ombudsman or the Immigration or Juvenile Prosecution Services. The legal aid departments of these organisations have been habitually carrying out administrative complaints against many of the irregularities that they have observed. These types of individualised lawsuits have focused on various aspects, from the prohibition of asylum seekers moving to the mainland to expulsion proceedings against young people in irregu­ lar situations who as minors were in the care of state agencies (social welfare councils who should have documented the minors) (see Servicio Jesuita para los Migrantes 2018; Comisión Española de Ayuda al Refugiado 2018). Making cases in courts of justice is one of the few ways for migrants and refu­ gees to fight the systematic violation of their fundamental rights in Ceuta and Melilla. In this battle of David and Goliath, in which the state has broken the law, it is the legal system that has provided a few ways to fight against the situation. Social organisations have played a key role in this process, offering legal assis­ tance and support, or by bringing lawsuits themselves. In this section, we will give a brief summary of some of the most significant cases, especially those associated with accusations of hot returns. The example which has done the most to reveal how fundamental rights are violated by the migration control actions taken at Spain’s peripheral land borders is the sentence passed down by the ECHR (N.D and N.T v. Spain (nos.8675/15

34 Ana López-Sala and 8697/15)) of October 2017 (Moya 2017; Sánchez-Tomas 2018; Solanes 2017; Barbero & Illamola this volume). This sentence was based on the lawsuits filed by two migrants in 2015, one from Mali, the other from the Ivory Coast.33 The suit claimed that on 13 August 2014 they tried to enter Spain with a group of sub-Saharan immigrants by jumping the border perimeter between Melilla and Morocco. After spending several hours perched on top of the fences, they came down with the help of various agents of the Civil Guard. Immediately upon descending the fence, they were apprehended and sent back to Morocco. They were not subjected to any identification procedure and were not given the chance to express their wish to apply for asylum, let alone to receive assistance from lawyers, interpret­ ers, or medical personnel. The court noted that there had been no assessment of each individual’s situation or any identification procedure, and the removals were carried out in the absence of any prior administrative or judicial decision. The court concluded that, in those circumstances, the removals amounted to collective expulsions, in violation of Article 4 Protocol 4. The court also found a violation of Article 13 of the ECHR taken together with Article 4 Protocol 4. It noted that the applicants had no access to interpreters or to legal assistance for the pur­ pose of informing them of the relevant provisions of asylum law or the pro­ cedures available to challenge their expulsion. In view of their immediate expulsion, it considered that the applicants had been deprived access to effec­ tive domestic recourse.34 (Moya 2017; Sánchez-Tomas 2018; Solanes 2017) Two other suits were also presented to the ECHR in 2015 and 2017, Doumbe Nnabuchi v. Spain (No.19420/15) and Balde and Abel v. Spain (No. 20351/17), which are still being deliberated. In addition to referring to the violation of Article 4, Protocol 4, and Article 13 of the ECHR, these two suits also invoke Article 3 of the ECHR, which prohibits torture. The first plaintiff denounces abuse at the hands of the Civil Guard during his transfer to the Moroccan authorities, and the second claims abuse from the Moroccan auxiliary border agents after the hot return (see Sánchez-Tomas 2018, pp. 114–117). As mentioned earlier, hot returns carried out at the border have also been tar­ geted by social organisations through lawsuits in Spanish courts. Perhaps the most well-known case is the indictment of the head of the Guardia Civil in Melilla for prevarication in September, 2014, after the lawsuit presented by three social organisations (Prodein, Andalucía Acoge & SOS Racismo) and the complaint filed with the Attorney General of Melilla by the organisation Coordinadora de Barrios (Martínez-Escamilla 2017). Although ultimately the Provincial Audience of Malaga dismissed the charges, finding that he had not engaged in that crime, it did highlight that said practices were ‘against the law,’ from which it can be understood that the sentence recognised the illegality of those actions (GarcésMascarenas 2017; Gracia-Pérez 2017). The social organisations also brought forth their own lawsuits directed at challenging the concept of operational control at the border, although they were also dismissed because they were considered a

Keeping up appearances 35 ‘complaint against an activity that is not susceptible to such suits because it is a neither a normative of administrative action’ (Sánchez-Tomas 2018).35 Faced with the obstacles placed by the government to carry out an investigation regarding the El Tarajal tragedy, various social organisations lodged a complaint that led to the indictment of 16 Civil Guard agents, accused of negligent homicide for their actions on that morning. The trajectory of this complaint has been highly irregular. The case has been provisionally closed on two occasions (2015 and 2018) and reopened after appeals made by the same organisations (2017 and 2018) that denounced these serious irregularities. In fact, the order to reopen the case in 2017 mentioned the negligence and half-heartedness with which the actions of the Civil Guard were being investigated. The case was once again closed at the start of 2018, but again reopened only a few months later, in August 2018, with a reproach by the judge regarding the fact that they had not made the slightest effort to take statements from the witnesses (specifically, from two survivors who today reside in Germany and another in Spain). Five years after the tragedy, the case remains open and new testimony continues to be revealed.36

1.5 A serious ‘Protection Gap’ in the cities of Ceuta and Melilla The measures used to contain migration flows to Europe through the North Afri­ can cities of Ceuta and Melilla have been implemented at the expense of the fundamental rights of migrants and refugees. These cities, symbols of Europe’s exclusionist border regime, operate under a permanent ‘state of exception.’ The analysis presented in this chapter reveals the breadth and scope of these viola­ tions, which can be viewed as a serious ‘protection gap,’ in which the theoretical acknowledgement of fundamental rights through national and international legis­ lation greatly contrasts with their practical application. This ‘protection gap’ has been the result of the implementation of extralegal administrative, operational, and police practices and also the use of what Rebecca Sanders recently called ‘plausible legality’ (Sanders 2018).37 The practices of the Spanish government at the border of these two cities have provoked broad internal political and social backlash, including recommendations made by the Ombudsman, lawsuits brought by migrants and social organisations, and heavy criticism by experts from various European and international bodies. Through it all, the Spanish government has denied any irregularity in these prac­ tices, introduced inadmissible legal reforms, and appealed to principles such as security or national sovereignty to justify its actions. As we have seen, after the Special Representative of the United Nations for Migrant Rights proposed the creation of an independent body to monitor the police action at Spanish borders in 2015, the government claimed that protecting its borders was its right as a sovereign nation and, therefore, not subject to independent control. In response to a report by the Commissioner of Human Rights of the Council of Europe in 2016, the Spanish Minister of the Interior stated that Spain was in compliance with its obligations as a signatory of the European Convention on Human Rights

36 Ana López-Sala and defended the need to legally regulate ‘border rejections’ to deal with mas­ sive and sometimes violent assaults. He also claimed that current Spanish regula­ tions respected international human rights and protection law, and he mentioned Spain’s right and obligation to defend and maintain its borders.38 Finally, the Span­ ish government appealed the guilty verdict handed down by the European Court of Human Rights in October 2017. After taking over the government in 2018, the Socialist Party has continued using hot returns, despite promising to put an end to this practice in its election manifesto and having presented a constitutional chal­ lenge against it when it was in the opposition. It has also maintained the appeal against the guilty verdict handed down by the ECHR, with arguments similar to those used by the prior government. As reported in the press in August 2018 in a document remitted by the State Attorney to the high court, it literally said that there ‘was no expulsion, but rather a prevention of entry,’ and it accused the two immigrants who had denounced Spain of being part of a ‘violent and legal attack against the border control system.’39

Notes 1 This chapter was prepared within the framework of the MIND Project (grant number CSO2014–53680) funded by the Spanish National Research Program. 2 Ferrer-Gallado and Albet-Mas define limboscapes as ‘a transitional zone, a threshold or midway territory between two different borders, where the migrants’ trajectories are spatially and temporally suspended’ (Ferrer-Gallardo & Albet-Mas 2016, p. 2). 3 See, for instance, Office of the United Nations High Commissioner for Human Rights (OHCHR), Principles and Guidelines, Supported by Practical Guidance, on the Human Rights Protection of Migrants in Vulnerable Situations, Genève, 2014. 4 Only Moroccan citizens registered as residing in the provinces of Nador and Tétouan are allowed entrance through border crossing points and must provide a valid passport and return every day to their residence in Morocco. 5 The characteristics of the barrier infrastructure have also been subject to broad contro­ versies, especially the use of razor wire, due to the wounds it causes to migrants who attempt to cross (see López-Sala 2015a). Police violence has also been widely docu­ mented and reported in various international reports, including by the Committee for the Prevention of Torture of the Council of Europe. See also Médecins sans Frontières (2013) and Council of Europe (2015). 6 It is important to emphasise that the border perimeter around both cities was con­ structed and expanded over the past 20 years, undergoing significant changes in its structure. Currently, the perimeter has three consecutive 6-meter-high fences in Melilla and two fences in Ceuta. The perimeters are equipped with razor wire, anti-climb mesh, security and night vision cameras, and motion detection sensors. 7 ‘Summary expulsions or hot returns refer to when Spanish state security forces hand over foreign citizens who have been intercepted on Spanish territory to Moroccan authorities without following the legally established procedure or complying with internationally acknowledged guarantees’ (Martínez-Escamilla et al. 2014, p. 19; see also Martínez-Escamilla 2017, p. 60). According to these authors, this expression can be applied when it is done to people intercepted jumping border fences or if they entered the cities by sea or reaching one of the Spanish islets off the coast of Morocco. 8 See Diario de Sesiones. Cortes Generales Núm. 50 de 22 November 2005. In this appearance, the Ombudsman stated that these practices violated Spanish legislation, specifically article 157 of the Immigration Law and the right to legal assistance and

Keeping up appearances 37

9

10

11

12 13 14 15

16 17

18 19

20

international protection. The Ombudsman also pointed out other irregular actions car­ ried out by Spanish security forces, among them the use of rubber bullets to stop cross­ ing attempts. The Ombudsman also denounced that the Ministry of the Interior was not investigating accusations by various social organisations regarding the use of exces­ sive violence to stop migrants from entering the country. In 2013, the AUGC, the largest professional association of the Spanish Civil Guard, solicited information from the Attorney General regarding the legality of these kinds of returns and demanded a written protocol on how to act for the officers working in these autonomous cities. In an article published in 2013 in El Diario, the prestigious Melillan journalist Jesús Blasco de Avellaneda wrote that ‘according to estimations by experts and NGOs based on the data facilitated by the Ministry of the Interior, since 2001 around 5,000 immi­ grants have been illegally expulsed in Melilla’ (see www.eldiario.es/desalambre/inmi grantes-expulsados-ilegalmente-Melilla-ultimos_0_198430239.html). ‘Appearance of the Minister of the Interior to report on the events that took place at the border of the autonomous city of Ceuta on February 6.’ Interior Commission, Spanish Congress of Deputies, 13 February 2014. See www.congreso.es/public_oficiales/L10/ CONG/DS/CO/DSCD-10-CO-500.PDF. In this appearance, the government argued that the migrants had not entered the coun­ try, since the area between the border fences is not considered Spanish territory (see the ‘operational control at the border’ concept in the following section). Additional Provision 10. Special regime for Ceuta and Melilla. Organic Law 4/2015, of 30 March, on Public Safety. See www.hrw.org/news/2014/10/30/joint-letter-spain-un-special-rapporteur-human-rightsmigrants. In February 2015, François Crépeau denounced the lack of a strong central mechanism to protect human rights and proposed the creation of an independent body to monitor police actions. In April 2015, the government rejected this proposal, stating that ‘pro­ tecting the borders of our country is a national right tied to its sovereignty and, there­ fore, not subject to independent controls’ (see https://elpais.com/politica/2015/04/10/ actualidad/1428674784_111501.html). Debates on the EU approach to migration and the expulsion of migrants from Spain. Plenary sessions 26 November 2014, Press Release, European Parliament. “The proposed amendments to the Aliens Act aimed at legalizing push-backs of migrants arriving in Ceuta and Melilla currently discussed in Spain are in clear breach of human rights law. The Spanish authorities should reconsider them and ensure that any future legislation fully abides by Spain’s international obligations, which include ensuring full access to an effective asylum procedure, providing protection against refoulement and refraining from collective expulsions” (See www.coe.int/en/web/ commissioner/-/spain-legislation-and-practice-on-immigration-and-asylum-must­ adhere-to-human-rights-standards). This is another example of the violent police actions that take place on a daily basis at Spanish borders. In fact, after the El Tarajal tragedy, the Popular Party used its parlia­ mentary majority to block creating a commission to investigate the incident. The concept of operational control at the border appears in the 8 February 2014 report prepared by the Civil Guard Sub-Director of Operations in Ceuta regarding the tragedy at El Tarajal that was submitted by the Ministry of the Interior to the Congress of Depu­ ties in March 2014. See www.cadenaser.com/csermedia/cadenaser/media/201403/13/ espana/20140313csrcsrnac_1_Pes_PDF.pdf?int=masinfo. “The internal fence of this border system represents the line that the state, in a free and sovereign decision, defines as the border of its national territory, as it pertains to its immigration regime. So when illegal attempts at crossing carried out by immi­ grants are contained and pushed back, there is no actual entry, which only occurs if

38 Ana López-Sala

21

22

23 24

25

26

27 28 29

the immigrant passes the internal fence, in which case they would have reached Span­ ish territory and would be subject to the general immigration regime” (report by the Directorate-General of Operations of the Civil Guard 2014, p. 6). The Ministry of the Interior, which described this operation as a success, justified returns as a mechanism to avoid the efecto llamada (the ‘call effect’) and based the action on the agreement to readmit third-country nationals signed with Morocco in 1992. See www. publico.es/espana/gobierno-deporto-migrantes-subsaharianos-isla.html. After months of investigation, Spanish organisations attached to Migreurop (ACSUR, Andalucía Acoge, APDHA, CEAR, Elín, Mugak & SOS Racismo), in collaboration with AMDH (the Moroccan Association of Human Rights), managed to locate these two Cameroonian immigrants in Rabat who had managed to return to Morocco after being expulsed to Algeria. Once they were interviewed and advised of their rights, they decided to file a lawsuit against Spain in the European Court of Human Rights, with the support of these organisations. See https://elpais.com/politica/2013/03/16/actualidad/1363460075_730690.html. See also Servicio Jesuita a Migrantes (SJM) (2018, pp. 26–35) and European Union Agency for Fundamental Rights (2013, p. 47). In January 2019, in response to a parliamentary question, the Spanish government indicated that during 2017 and 2018, 1,265 people were returned to Morocco from Ceuta and Melilla. This is the first official data that was made public since the legal reform of 2015 which introduced the concept of ‘border rejections’ (see www.eldiario. es/andalucia/devoluciones-caliente_0_854964586.html). Accessing the territory has been particularly difficult for sub-Saharan Africans, because in order to reach the authorised points they must first pass through Moroccan Gendarmerie controls which always impede their access to Spanish territory. There­ fore, people in need of international protection have no safe entry points and are obli­ gated to attempt to gain access in ways that put them at serious risk (see Amnistía Internacional 2016; Defensor del Pueblo 2016). For this reason, in 2015 various social organisations asked the Spanish government to make it possible to request interna­ tional protection at the Spanish consulates in Morocco. For instance, see www.cear.es/ el-consulado-de-nador-una-oportunidad-para-solicitar-refugio-de-forma-segura/. In fact, since this office was opened in March 2015 at the border crossing point in El Tarajal (Ceuta), no requests for international protection have been made there. Accord­ ing to UNHCR, between October 2014 and 31 July 2017, 9,760 requested international protection at the Beni Enzar border post in Melilla. Syrians made 90% of the requests and the rest were made by people from Morocco, Yemen, Tunis, and Palestine (see Comisión Española de Ayuda al Refugiado 2018). The CETIS are temporary holding centres with a semi-open regime under the direction of the Ministry of Social Affairs and Work. Immigrants and asylum seekers in Ceuta and Melilla reside there ‘temporarily’ until their legal situation is resolved. See https://elfarodeceuta.es/acnur-reitera-que-la-tarjeta-amarilla-tiene-validez-para-el­ conjunto-del-pais/ and http://periodismohumano.com/migracion/acnur-exige-al-gobi erno-respeto-a-los-derechos-de-todos-los-solicitantes-de-asilo.html. The unregulated humanitarian transfer programme is an opaque mechanism that oper­ ates largely at the discretion of the authorities. It was initiated to deal with the lack of resources and overcrowding in the reception centres caused by increased arrivals in the middle of the past decade to Ceuta, Melilla, and the Canary Islands. However, the criteria used to select and prioritise the immigrants who are transferred remain under the sole discretion of the Ministry of Social Affairs and the Government Delegation in those cities. In the case of asylum seekers and refugees, the humanitarian transfers only began to be applied after 2015 and almost exclusively for Syrian nationals. This is why social organisations have denounced discrimination by nationality in the application of these measures (see Amnistía Internacional 2016; Comisión Española de Ayuda al Refugiado 2018).

Keeping up appearances 39 30 Among them are the sentences of the Superior Court of Justice of Andalusia on 13 January 2011 and February 2012 and of the Superior Court of Madrid, 11 May 2015, and 30 October 2018. 31 This violent situation also often causes minors to escape the reception centres and live on the streets, with all the danger that this can generate to their well-being, health, and rights to education and physical integrity (see, for instance, González de Heredia et al. 2017; Harraga 2016). 32 In 2017, this body processed more than 1,000 complaints regarding migrations. 33 It is important to highlight that the Commissioner for Human Rights of the Council of Europe took part in the written allegations. Also testifying as third parties were the United Nations High Commissioner for Refugees, the United Nations High Commis­ sioner for Human Rights, the Spanish Commission for Refugees (CEAR) and, jointly, the AIRE Centre (Advice on Individual Rights in Europe), Amnesty International, the European Council on Refugees and Exiles and the International Commission of Jurists (see Moya 2017; Sánchez-Tomas 2018). 34 See www.asylumlawdatabase.eu/en/content/ecthr-nd-and-nt-v-spain-nos-867515-and869715-article-4-protocol-4-article-13-echr-3-october. 35 A detailed description and analysis of these resources can be found in Sánchez-Tomas (2018). 36 See www.cear.es/cear-celebra-la-reapertura-de-la-causa-tarajal-ordenada-por-la-audienciade-cadiz/; https://elpais.com/elpais/2019/02/09/videos/1549739034_933929.html. 37 “Authorities in liberal democracies increasingly deploy a strategy of what I call ‘plau­ sible legality’ in order to secure immunity and legitimacy for proscribed practices. Rather than ignore or suspend law, they construct legal justifications for human rights abuses and other dubious policies, obscuring the distinction between legal compliance and non-compliance” (Sanders 2018, p. 2). 38 See https://rm.coe.int/ref/CommDH/GovRep%282016%2915. 39 See https://elpais.com/politica/2018/08/10/actualidad/1533923790_148631.html.

References Agamben, G. (1998), Homo Sacer: Sovereign Power and Bare Life, Stanford: Stanford University Press. Amnesty International (2006), Spain and Morocco: Failure to Protect the Rights of Migrant. Ceuta and Melilla, One Year on, London: Amnesty International. Amnistía Internacional (2014), El coste humano de la Europa Fortaleza. Violaciones de derechos humanos cometidas en las fronteras de Europa contra personas migrantes y refugiadas, Madrid. Amnistía Internacional (2015), Miedo y Vallas: los planteamientos de Europa para con­ tener a las personas refugiadas, Madrid. Amnistía Internacional (2016), Ceuta y Melilla. Un territorio sin derechos para personas migrantes y refugiadas, Madrid. Asociación pro derechos humanos de Andalucía (2018), Derechos Humanos en la Fron­ tera Sur, Sevilla. Barbero, I. & Illamola, M. (2018), ‘La insuficiencia de los mecanismos de denuncia efec­ tiva ante la vulneración de derechos fundamentales en los procedimientos de deport­ ación de extranjeros’, Revista catalana de dret públic, No. 57, pp. 117–127. Benítez, J., Solís, P. & Serván, C. (2015), ‘Personas defensores de los derechos humanos de la población inmigrante’, in D. Bondia, F. Daza & A. Sánchez (eds.), Defender a quien defiende. Leyes mordaza y criminalisación de la protesta en el Estado Español, Barcelona: Icaria, pp. 213–243.

40 Ana López-Sala Carrera, S. & Stefan, M. (2018), Complaint Mechanisms in Border Management and Expulsion Operations in Europe: Effective Remedies for Victims of Human Rights Viola­ tions? Brussels: CEPS. Comisión Española de Ayuda al Refugiado (CEAR) (2013), La situación de las personas refugiadas en España, Informe 2013, Madrid. Comisión Española de Ayuda al Refugiado (CEAR) (2017), Las personas refugiadas en Europa y en España, Informe 2017, Madrid. Comisión Española de Ayuda al Refugiado (CEAR) (2018), Las personas refugiadas en Europa y en España, Informe 2018, Madrid. Council of Europe (2015). Report to the Spanish Government on the Visit to Spain Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrad­ ing Treatment or Punishment (CPT), 14–18 July 2014. Council of Europe (2018), Report of the Fact-Finding Mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on Migration and Refugees to Spain, 18–24 March. Cuadrón, S. (2018), Extranjeros en Frontera. Un estudio jurídico-práctico del recono­ cimiento, protección y límites del derecho de entrada en España, Madrid: Dykinson. Defensor del Pueblo (2012), ¿Menores o adultos? Procedimientos para la determinación de la edad, Madrid. Defensor del Pueblo (2013), Informe Anual, Madrid. Defensor del Pueblo (2016), El asilo en España. La protección internacional y los recursos de acogida del sistema, Madrid. Defensor del Pueblo (2018), Los niños y los adolescentes. Separata Informe Anual Defen­ sor del Pueblo, 2017, Madrid. European Union Agency for Fundamental Rights (FRA) (2013), Fundamental Rights at Europe’s Southern Sea Borders, Vienna. Fernández-Pérez, A. (2014), ‘La regulación de las devoluciones y expulsiones de extran­ jeros: la ilegalidad de las devoluciones de extranjeros efectuadas sin las debidas garantías’, Diario La Ley, Vol. 8392, pp. 1–18. Ferrer-Gallardo, X. (2008), ‘The Spanish-Moroccan Border Complex: Processes of Geo­ political, Functional and Symbolic Rebordering’, Political Geography, Vol. 27, No. 3, pp. 301–321. Ferrer-Gallardo, X. & Albet-Mas, A. (2016), ‘EU-Limboscapes: Ceuta and the Prolifera­ tion of Migrant Detention Spaces Across the European Union’, European Urban and Regional Studies, Vol. 23, No. 3, pp. 527–530. Ferrer-Gallardo, X. & Gabrielli, L. (2018), Estados de excepción en la excepción del Estado, Barcelona: Icaria. Garcés-Mascareñas, B. (2016), ‘Fuera de campaña electoral. Devoluciones en caliente, refugiados e inmigrantes irregulares’, in J. Arango, R. Mahia, D. Moya & E. SánchezMontijano (eds.), Anuario de la Inmigración en España. El año de los refugiados, Bar­ celona: CIDOB, pp. 321–337. García-Andrade, P. (2015), ‘Devoluciones en caliente de ciudadanos extranjeros a Mar­ ruecos’, Revista Española de Derecho Internacional, No. 67, pp. 214–220. González de Heredia, R., Díaz Velasco, I., Pérez Fernández, A., Toharia, M. & Assiego, V. (2017), Rechazo y abandono. Situación de los niños que duermen en las calles de Melilla, Madrid: Universidad Pontificia de Comillas. González-García, I. (2014), ‘La llegada de inmigrantes a isla de Tierra en Alhucemas. Cri­ sis migratoria entre España y Marruecos y violaciones de derechos humanos’, Revista Electrónica de Estudios Internacionales, No. 27, pp. 1–28.

Keeping up appearances 41 González-García, J. (2015), ‘Expulsiones en caliente, devoluciones y petición de asilo en Ceuta y Melilla’, Revista de Administración Pública, No. 196, pp. 309–329. Gracia-Pérez, D. (2017), ‘El rechazo de inmigrantes irregulares en las fronteras de Ceuta y Melilla’, Diario La Ley, 9057. Harraga (2016), De niños en peligro, a niños peligrosos. Una visión sobre la situación actual de los menores extranjeros no acompañados en Melilla, Melilla. Human Rights Watch (HRW) (2002), Nowhere to Turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco, New York: HRW. Jesuit Refugee Service Europe (JRS) (2018), Forgotten at the Gates of Europe: Ongoing Protection Concerns at the EU’s External Border, Brussels. López-Sala, A. (2015a), ‘Exploring Dissuasion as a (geo)Political Instrument in Irregular Migration Control at the Southern Spanish Maritime Border’, Geopolitics, Vol. 20, No. 3, pp. 513–534. López-Sala, A. (2015b), ‘La inmigración irregular en Ceuta y Melilla en 2014: prácticas de control y debate público’, in J. Arango, D. Moya Malapeira, J. Oliver i Alonso & E. Sánchez-Montijano (eds.), Anuario de la Inmigración en España. Flujos cambiantes, atonía institucional, Barcelona: CIDOB, pp. 170–191. López-Sala, A. & Godenau, D. (2016), ‘Integrated Border Management and Irregu­ lar Migration at the South European-North African Border: The Case of Spain’, in R. Bossong & H. Carrapico (eds.), EU Borders and Shifting Internal Security: Technology, Externalization and Accountability, London: Springer, pp. 81–100. López-Sala, A. & Godenau, D. (2017), ‘Controlling Irregular Immigration at the European Union’s Southern Maritime Border: An Emerging System Driven by “Migration Emer­ gencies” ’, Journal of Mediterranean Knowledge, Vol. 2, No. 1, pp. 17–35. Martínez-Escamilla, M. (2017), ‘Fronteras sin derechos. Las devoluciones en caliente’, in A. López-Sala & D. Godenau (eds.), Estados de contención, Estados de detención. El control de la inmigración irregular en España, Barcelona: Anthropos, pp. 54–74. Martínez-Escamilla, M., Sánchez Tomas, J.M., Segovia Bernabé, J.L., Díez Ripollés, J.L., García España, E., Gimbernat Ordeig, E., González García, J.V., Pérez Alonso, E., Pérez Manzano, M., Pérez Tremps, P., Pérez Vera, E., Revenga Sánchez, M., Rey Martínez, F., Ríos Martín, J., Saíz Arnaiz, A. & Villaverde Menéndez, I. (2014), Expulsiones en caliente. Cuando el Estado actúa al margen de la ley, Madrid: E-Prints Universidad Complutense de Madrid, https://eprints.ucm.es/25993/. Martínez-Escamilla, M., Sánchez Tomás, J.M., Segovia Bernabé, J.L., Díez Ripollés, J.L., García España, E., Gimbernat Ordeig, E., González García, J.V., Pérez Alonso, E., Pérez Manzano, M., Pérez Tremps, P., Revenga Sánchez, M., Rey Martínez, F., Ríos Martín, J. & Villaverde Menéndez, I. (2015), Rechazos en frontera. ¿Fronteras sin derechos? Madrid: E-Prints Universidad Complutense de Madrid, https://eprints.ucm.es/29379/. Médecins sans Frontières (MSF) (2013), Violence, Vulnerability and Migration: Trapped at the Gates of Europe, Barcelona. Moya, D. (2017), ‘El Tribunal Europeo de Derechos Humanos declara contrarias a los derechos humanos las devoluciones en caliente en Ceuta y Melilla’, CERN-Migracions, www.cermigracions.org/en/blog/el-tribunal-europeo-de-derechos-humanos-declara­ contrarias-los-derechos-humanos-las. Sánchez-Tomas, J. (2018), ‘Las devoluciones en caliente en el Tribunal Europeo de Dere­ chos Humanos’, Revista Española de Derecho Europeo, No. 65, pp. 101–135. Sanders, R. (2018), ‘Human Rights Abuses at the Limits of the Law: Legal Instabilities and Vulnerabilities in the Global War on Terror’, Review of International Studies, Vol. 44, No. 1, pp. 2–23.

42 Ana López-Sala Save the Children (2018), Los más solos. Los fallos en el sistema de acogida, protección e integración de los menores no acompañados que llegan a España, Madrid. Servicio Jesuita a Migrantes (SJM) (2018), Sacar del Laberinto. Informe Frontera Sur, Madrid. Solanes, A. (2017), ‘Contra la normalización de la ilegalidad. La protección judicial de los extranjeros frente a las expulsiones colectivas y las devoluciones en caliente’, Cuader­ nos Electrónicos de Filosofía del Derecho, No. 36, pp. 195–225. UN Committee on the Rights of the Child (UNCRC) (2010), Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Concluding Observa­ tions: Spain, 3 November, CRC/C/ESP/CO/3-4. UN Committee on the Rights of the Child (UNCRC) (2018), Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Spain, 5 March, CRC/C/ESP/CO/5-6. UN High Commissioner for Refugees (UNHCR) (2013), Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Mutuma Ruteere. Addendum, Visit to Spain, 6 June, A/HRC/23/56/Add.2. Valles, M. (2016), ‘Vallas al Asilo? Apuntes sobre el sistema de protección internacional en España’, in J. Arango, R. Mahia, D. Moya & E. Sánchez-Montijano (eds.), Anuario CIDOB de la Inmigración. El año de los refugiados, Barcelona: CIDOB, pp. 226–245. Van Houtum, H. (2010), ‘Human Blacklisting: The Global Apartheid of the EU’s Exter­ nal Border Regime’, Environment and Planning D: Society & Space, Vol. 28, No. 6, pp. 957–976.

2

Deportations without the right to complaint Cases from Spain Iker Barbero and Mariona Illamola-Dausà

2.1 Introduction In mid-January 2018, the judge responsible for exercising supervision over the Foreigner’s Detention Centre (Centro de Internamiento de Extranjeros in Span­ ish, hereinafter CIE) in Madrid ordered the National Police to suspend the depor­ tation of seven Algerians. The Algerians, who had been transferred from the CIE in Archidona, were detained in the CIE of Madrid from where their deportation ought to take place. Of these seven inmates (some of whom were asylum-seekers or minors), five had been proposed by the defence as direct witnesses in the court case concerning the death of Mohammed Bouderbala, who on 29 December 2017 was found hanged in his cell in the CIE of Archidona. This factual account ech­ oes various reports from nongovernmental organisations, which denounce how Spain’s system for border control and deportations allows for systematic viola­ tions of various fundamental rights such as the right to non-discrimination on ethnic grounds, international protection, legal assistance, physical and moral well-being, or even life (APDHA 2017; Brigadas Vecinales 2015; SJME 2017). Before scrutinising different types of policies and practices which are repre­ sentative of how border and immigration control are currently organised in Spain, it is worth looking at the country’s figures related to unauthorised border crossing, as well as immigration detention, custody, and deportation. This numerical snap­ shot view will help demonstrate the magnitude of migration and border control in Spain. In terms of irregular entries, provisional data from the Ministry for Home Affairs for the year 2017 point to a considerable increase in irregular entries in comparison with the previous year (104%). Such increase is particularly signifi­ cant for unauthorised border crossing through maritime routes, which saw a surge of 197.4% from the previous year (see Table 2.1). With regard to the figures on arrests, detention, and deportation of foreign citizens for infringement of Spanish Immigration Law, interesting data emerge from the 2016 report of the National Preventive Mechanism (NPM) run by the Ombudsman (NPM-Omb 2016). The latter notes that, out of the 35,882 foreign nationals detained, 7,597 were sent to various CIEs (6,930 in 2015), from where a total of 2,205 of third-country nationals were deported. At first sight, this figure seems to suggest that 70.97 % of the foreigners detained during 2016 have not

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Table 2.1 Access to territory through unauthorised points 2016–2017 Access route Territory

2016

Maritime

6,979 20,757 13,778 672 418 254 441 247 –194 70 681 611 2,098 2,062 –36 3,818 4,184 366 14,078 28,349 14,271

Land Total

Mainland Spain/Balearic Islands Canary Islands Ceuta Melilla Ceuta Melilla

2017

Inter-annual % difference 197.4 –37.8 –44 872 –1.7 9.6 101.4%

Source: Ministry for Home Affairs Report (31 December, 2017)

been returned. However, such information does not give the complete picture. As we will see in the section relating to deportations, the total number of deportations amounts to 9,241 in that year. If only 2,205 were deported from the CIEs, it means that 7,036 persons were deported directly from police custody or at the borders. Spanish Immigration Law (Organic Law 4/2000 of 11th January on Foreigner’s Rights and Freedoms in Spain and their social integration or LOEx) foresees dif­ ferent ways to prevent entry or deport foreigners from Spanish territory. These include the refusal of entry at authorised border crossing points (Art. 26 LOEx), deportation of persons who are in the territory but lack authorisation to be there (Art. 57 LOEx), and the return of the intercepted person at the border or in its immediate vicinity (Art. 58 LOEx). To ensure deportation, there is the possibility of placing the person in a Foreigner’s Detention Centre (Arts. 60 and 62 LOEx). National law now also contemplates a special regime for refusing entry (known as devoluciones en caliente – ‘hot pushbacks’) in Ceuta and Melilla. This special procedure has been introduced through the incorporation of the Tenth Additional Provision of the LOEx in Section 1 of the First Final Provision of the Citizen Security Law 4/2015. Such provision has been introduced with the aim of giving legal recognition to a practice used for many years instead of the regular deporta­ tion procedure mentioned above (Bertomeu 2016; González García 2017; Mar­ tínez Escamilla & Sánchez 2016). Spanish Immigration law not only regulates the procedures to be followed by Spanish authorities in border or immigration control operations but also pro­ vides mechanisms so third-country nationals can exercise their rights (including effective remedies rights) in such contexts. Spain has signed many international treaties relating to the guarantee and respect of human rights, including those of foreigners, regardless of their documented administrative situation. Article 10.2 of the Spanish Constitution (hereinafter SC) expressly requires Spanish authori­ ties to comply with international and EU law sources and related obligations. Such principle was reinstated by the Constitutional Court in a judgment issued in 2007 which assessed the constitutionality of LOEx 8/2000. International agree­ ments form part of national legal system and can only be modified, suspended, or repealed following the provisions established in the normative texts themselves

Deportations without the right to complaint 45 (Art. 96 SC). It is not necessary for each piece of domestic legislation to make reference to international and EU law, since the binding character of the latter derive from the above-mentioned constitutional provisions. Mentioning the need to respect international human rights law in the Sixth Additional Provision1 (regu­ lating readmission agreements) or in the second paragraph of the Tenth Additional Provision (devoted to the special regime of Ceuta and Melilla) of the LOEx is an unnecessary reiteration. With the only exception of internment in a CIE (which is authorised by a criminal investigation judge), in Spain border control and deportation procedures takes place exclusively within the administrative-police system. One of the pecu­ liarities of these procedures is that, in comparison with other administrative or judicial proceedings, they feature a low number of procedural guarantees. Pro­ vision of the right to defence and seek remedies constitutes the general rule in proceedings involving the imposition of administrative sanctions. According to Article 22.2 LOEx, The foreigners who are in Spain have the right to legal aid in administrative procedures that may lead to the refusal of entry, return or deportation from the Spanish territory and in all procedures in the matter of international protec­ tion, as well as to the assistance of an interpreter if they do not understand or speak the official language being used. The foundation of this specific defence right in administrative proceedings rests on the severity of the sanction imposed (i.e. the deportation to the country of origin or of transit). However, as we will see in this chapter, in some cases the police deportation procedures restrict, limit, or ignore this right. We argue that such restrictions and limitations represent a clear violation of a person’s defence right in deportation procedures, as well as of the right to access remedies against abuses suffered while being detained or deported. Formally, there is an administrative oversight body called the ‘Inspection of Personnel and Security Services,’ which is included in the organisational chart of the Ministry for Home Affairs.2 This is the body competent for address­ ing and receiving reports and complaints made by citizens regarding the Secu­ rity and Police Forces, as well as examining the actions of its members.3 It has been described as the ‘first independent body which deals with reports and com­ plaints of mistreatment . . . of any police action.’ However, Amnesty International believes that this body ‘does not meet the requirements established by human rights bodies, both of the UN and regional organisations, to carry out independent investigations into all allegations of human rights violations by law enforcement officers.’ Amnesty International notes that ‘the body lacks the functions and skills that an independent monitoring mechanism of police activity should have; nor is it an independent body, or autonomous or publicly accountable for its actions’ (Amnesty International 2017, p. 4). Amnesty also pointed out that ‘in cases related to National Police Bodies (The National Police Force and the Guardia Civil), the Secretary of State may order an investigation, but the purpose of this is to prevent

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the occurrence from happening again, rather than provide restitution to the victim or punish misconduct in that particular case’ (Amnesty International 2007, p. 16). Since there is no specific complaint procedure against deportation operations at the borders, only ordinary redress procedures are left to redress violations com­ mitted by Spanish authorities in the context of border or immigration enforcement operations. On the one hand, there are channels of administrative redress, which include the possibility to file an official complaint with the Public Ombudsman. The Ombudsman represents the national mechanism for the prevention of torture, and it has powers of investigation and control over executive actions of Span­ ish authorities. The Ombudsman’s regional counterparts (e.g. Síndic de Greuges, Ararteko, Valedor do Pobo) can participate in the exercise of oversight powers in the areas falling within their responsibility. NGOs or Bar Associations can receive complaints and refer them to the public prosecution office. Furthermore, the police should also be able to receive and process fundamental rights complaints. On the other hand, there are administrative and judicial measures such as the ordinary administrative appeal (Art. 112 and following of Administrative Procedure Law 39/2015), the ordinary appeal for the protection of fundamental rights (Art. 114.1 Administrative Jurisdiction Law 29/1998), or the appeal for the protection before the Constitutional Court that foreigners subject to a deportation measure can pre­ sent, after having exhausted internal routes and only if Articles 14 to 29 and 30.2 SC have, presumably, been violated. In the following sections, we will make reference to several specific cases of detention, internment, or deportation in the context of which the exercise of the right to file a complaint and even to access legal defence result difficult or impos­ sible. First, we refer to the so-called ‘pushbacks’ performed at the border fences of Ceuta and Melilla, where people are violently restrained from physically enter­ ing the Spanish territory and at the same time deprived of any possibility to apply for asylum, access legal defence, or complain about abuses.4 Secondly, we will scrutinise the police practices of ‘border readmissions’ to another EU member state and highlight how the provisions of the bilateral agreements under which such operations take place undermine the effectiveness of third-country nation­ als’ rights to judicial and administrative remedies. Thirdly, we will refer to the possibilities of lodging complaints at the Foreigner’s Detention Centres. Finally, we will analyse the so-called ‘express deportations’ which are carried out in just 24–72 hours from the moment of detention. We will describe how the expeditious process followed for these deportations barely allows time to prepare a decent defence against the return decisions or to complain about abuses committed dur­ ing their implementation.

2.2 Does the ECtHR judgment change legislation on pushbacks? It is estimated that 325 people jumped the fence into Melilla in 2016, either indi­ vidually or in small groups. There were, however, 15 significant crossings where around 2,500 third-country nationals attempted to enter the Spanish enclave. In

Deportations without the right to complaint 47 Ceuta, 1,771 people jumped the fence individually or in small groups. On 14 occa­ sions, there were larger group crossing attempts, with a total of approximately 4,000 participants (APDHA 2017, pp. 140–141). Those individuals who do man­ age to enter the territory by climbing over the fence are returned to Morocco immediately. Returns are executed even in cases in which medical care is needed.5 These practices were strongly criticised by the General Council of Lawyers, the Public Ombudsman, judges’ and prosecutors’ associations, and the Euro­ pean Commissioners for Home Affairs, among others. Such criticisms were expressed when the ‘pushbacks’ were being practised ‘outside the law’ (i.e. without being regulated), but also after a draft bill was presented to amend the LOEx and therefore ‘legalise’ such operations. For example, after their visit to Melilla in January 2015, the Commissioner of Human Rights stated that the proposals for the amendment of the LOEx that would regulate pushbacks in Ceuta and Melilla were clearly contrary to human rights. The Commissioner urged a reconsideration of such initiatives, and restated that all legislative texts must be in full conformity with international obligations, especially those that guarantee full access to an effective asylum procedure, protection against refoulement, or prevention of the implementation of collective deportations. In line with these observations, the Spanish authorities were requested to cease the pushbacks and to replace them with practices that would reconcile border control with human rights.6 That notwithstanding, Spain adopted the aforemen­ tioned reform which reads, Special regime of Ceuta and Melilla 1

2 3

Foreigners who are detected on the border lines of the territorial demarcation of Ceuta or Melilla when trying to pass the border’s con­ tainment elements to illegally cross the border, can be turned back in order to prevent their illegal entry into Spain. In any case, the return shall be carried out in accordance with inter­ national human rights and international protection regulations which Spain is party to. Applications for international protection will be formalised in the places authorised for this purpose at border crossings and will be pro­ cessed in accordance with the rules on international protection7.

As Arce Jiménez points out, ‘When it comes to these matters, concepts such as “exceptional” or “speciality” should warn those who defend a progressive vision of Human Rights, given that these terms are often accompanied by a restrictive intention’ (Arce Jiménez 2017, p. 55). As for the exceptionality, the said provision entered into force as an emergency measure on the day following its official pub­ lication (1 April 2015) and anticipated the entry into force of the rest of the regula­ tion (1 July 2015). Regarding the speciality, it emerges as a standard characteristic that governs all Spanish regulations affecting fundamental rights, especially those of irregular migrants and asylum seekers.

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On 3 October 2017, the European Court of Human Rights (ECtHR) issued a decision that could be decisive in the practice of so-called ‘pushbacks’ practiced by Spain at the border fences of Ceuta and Melilla.8 The Kingdom of Spain has since appealed the judgment before the Grand Chamber, which held a hearing on 26 September 2018. Beside the submissions of the parties, comments were submitted on the matter by the Commissioner for Human Rights of the Council of Europe, the United Nations High Commissioner for Refugees, the United Nations High Commissioner for Human Rights, the Spanish Commission for Refugee Aid (hereinafter CEAR), and joint support was submitted from the Advisory Cen­ tre on People’s Rights in Europe, Amnesty International, the European Council for Refugees and Exiles, and the International Commission of Jurists. All these organisations agree on condemning the actions of the Spanish authorities. The facts considered by the Court date back to 13 August 2014, when a group of people, including the plaintiffs, tried to enter Spain through the border post in Melilla. As they set foot on Spanish land (i.e. after having crossed the border fence), the third-country nationals were intercepted by the Spanish authorities and immediately pushed back, without being able to present any form of international protection claim, or appeal against the refusal of entry decision. The ECtHR’s Third Chamber ruled in favour of the plaintiffs, unanimously declaring that the pushback amounted to a violation of Article 4 of Protocol No. 4, and by this con­ firming that the operation consisted of a collective deportation. The Court also found Spain to be in violation of Article 13 of the ECHR for having impeded third-country nationals from presenting an effective appeal before a competent Spanish authority (before being sent back to Morocco). The Court did not accept the allegations concerning violation of Article 3 of the Convention. There are several notable aspects of the Court’s verdict which we will explain in a concise way (Castilla 2018; Moya 2018; Sánchez Tomás 2018). Firstly, in terms of jurisdiction, the Court considered that while pushback operations are primarily territorial, Spanish agents remain obliged to also ensure the rights and freedoms recognised by the ECHR when they operate outside their country’s terri­ tory. The Court, in fact, stated that ‘from the point at which the applicants climbed down from the border fences they were under the continuous and exclusive con­ trol, at least de facto, of the Spanish authorities.’9 Secondly, the Court does not accept the arguments of the Kingdom of Spain alleging that the plaintiffs were unable to prove their victim status. The failure to prove victim status, the Court found, was partly due to the absence of an iden­ tification procedure by the competent authorities. In substance, this summary deportation prevented the plaintiffs from presenting any appeals and made them defenceless. The failure to identify persons and to treat them as individuals seek­ ing international protection constitutes a violation of international law and of the principle of non-refoulement. The Court confirmed that such violation cannot be justified by the argument of the difficulties of managing migration flows. Thirdly, the ECtHR considers that the procedure followed by the Spanish author­ ities ‘is incapable of casting doubt on the collective nature of the expulsions com­ plained of.’10 The plaintiffs, which were under the continued and exclusive control

Deportations without the right to complaint 49 of the Spanish authorities, were deported and returned to Morocco against their will. No consideration was given to the particular circumstances of the affected persons, each of whom had the right to have his/her claims and case assessed indi­ vidually. By recalling its own jurisprudence on the matter, the ECtHR excluded that, merely because several foreigners are subject to similar decisions, pushback operations cannot amount to a form of collective deportation. The latter, instead, subsists when deported individuals have been prevented from expounding their arguments individually (Solanes Corella 2017). To defend its position, the Spanish government alleged that the operations were implemented in line with the previously cited Tenth Additional Provision of the LOEx, which includes a special regime for Ceuta and Melilla. In this regard, CEAR believes, however, that there is no justification for applying an exceptional legal regime in these border areas, also because legitimising pushbacks in Ceuta and Melilla would be contrary to the principle of legal certainty. It was also noted that simply referring to respect for international human rights and international protection obligations (see paragraph 2 of the cited LOEx provision) ‘did not in itself equate to actual respect for human rights.’11 One might wonder why this paragraph 2 has been included: is it simply to give pushback operations an appear­ ance of legality? As Arce Jiménez (2017, p. 58) says, ‘people are either pushed back . . . or the international treaties on human rights are respected. Both actions happening simultaneously is impossible.’ At the time when the provision under scrutiny was adopted, the decision was, in fact, made not to specify the exact rights or guarantees it was intended to protect. Neither guidelines were included to clarify how to act in order to activate the protection referred to in the provision itself. It has been argued that this normative design strategy was aimed at allow­ ing the practice of refusals at the border to continue in absence of any meaning­ ful accountability procedure that would effectively guarantee the rights of people subject to pushbacks (Martínez Escamilla et al. 2015). To address such a gap, Nils Muiznieks (former Commissioner of the Council of Europe) addressed a letter to Fernández Díaz (at the time Spanish Minister for Home Affairs) requesting the latter to provide the security forces conducing pushbacks with instructions on how they should implement these operations in a fundamental rights-compliant way. Such instructions could clarify the content of the second paragraph of the LOEx, in particular, which points out the obligation to respect international commitments regarding respect for human rights.12 This is an aspect that, although not dealt with in the ECtHR judgment, should not be forgot­ ten. Pushback operations affect migrants and asylum seekers who struggle to live in appalling conditions on Mount Gurugú in Morocco. When they are sent back after having crossed the fence, they may suffer inhuman and degrading treatments (Lasagabaster 2016, para. 5–6). As Lasagabaster (2016, p. 131) notes referring to Article 3 of the ECHR, ‘the deportation of a foreigner cannot be the cause of the violation of rights guaranteed by the ECHR.’ Spain is responsible for analysing the consequences of the deportation by taking into account the situation of the country of destination (in the case of Morocco the existence of the risk of inhu­ man and degrading treatment is evident from NGOs reports (Lasagabaster, 2016,

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p. 138)), as well as the circumstances of the person being deported. Complying with this specific colligation is inherently difficult because one of the characteris­ tics of the pushbacks is the absence of identification. Finally, the Court pointed out that as a consequence of Article 13 of the Conven­ tion ‘to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief . . . the remedy required by Article 13 must be “effective” in practice as well as in law.’13 Through these considerations and the characteristics of the reported facts, the Court concludes that the de facto deportation has deprived the plaintiffs of a form of appeal. In the same vein, with regard to the Tenth Additional Provision to the LOEx, various specialists have stated that it enables authorities to ‘treat humans like packages.’ The effect of such provision is to deny in principle and practice the possibility of deported people being able to make even the ‘slightest allegation against the Spanish authorities, once they are subject to police interven­ tion and beyond the specific location at which this occurs is not only immoral but an illegal practice’ (Martínez Escamilla et al. 2015). The Court decision was adopted unanimously by the seven members of the Chamber. However, the vote of Judge Dedov against awarding economic com­ pensation is notable as it considers that the Court’s declaration of the violation and the recognition of the moral prejudice are sufficient. To support his argument, he stresses that the ECtHR ‘in a situation of unlawful conduct or even violence, maintains (albeit not in all cases) the high standards it requires of the authorities.’ He then proceeds by questioning: who is more vulnerable in such a situation, the immigrants or the border guards? Given such consideration, we would like to ask: is the act of jumping a fence really a violent attack? Does a situation of illegality and violence justify the abandoning of principles and procedures that guarantee the rights of foreigners? Solanes Corella (2017, p. 215) believes that changing the perception of who is most vulnerable would reverse the very understanding of the law as an instrument for protecting the weakest and most vulnerable. In addition, accepting that illegality and violence can lead to a normalisation of practices that violate human rights signifies in fact we are depriving individuals from constitu­ tionally recognised rights and guarantees. Despite the fact that the ECtHR judgment did not declare that the amendment of the Additional Provision is in contrast to the Convention, it is still doubtful whether such provision can remain in force. In our opinion, pushback operations cannot continue to be legally practised. They are collective deportations which do not offer effective judicial or administrative protection. We are waiting for the ECtHR Grand Chamber sentence but also counting on the ECtHR decisions in two new cases (Doumbe Nnabuchi n° 19420/15, Balde y Abel n° 20351/17) to fully confirm our opinion. As Soler García points out (2018, p. 148), the Court will presumably follow its large jurisprudence. Also pending against the Additional Provision is the appeal of unconstitutionality before the Constitutional Court.14 Referring to the Constitutional Court, Lasagabaster (2016, p. 124) pointed out that: Rights cannot be interpreted in contradiction with the decision of the Euro­ pean Convention on Human Rights, the Court stating that the content that

Deportations without the right to complaint 51 the Constitution approves of human rights is that which is established by the European Court of Human Rights [. . .], the interpretation given by the Constitutional Court is clearly receptive of the jurisprudence of the European Court of Human Rights.

2.3 Readmissions on the French-Spanish border A specific type of deportation is the one constituted of readmissions of foreigners detained for illegal residence. These procedures have been one of the pillars of the EU and its member states’ border control policy at least since the European Council in Seville of June 2002. However, these agreements have been analysed in depth only with regards to their external aspect, that is to say, with third states (Schieffer 2003; Strik 2010; Carrera 2016, 2018). A lack of knowledge instead exists as to their operationalisation between member states. We are going to focus our analysis on the bilateral agreement for the readmis­ sion of undocumented migrants between Spain and France. The agreement was signed ‘ad referendum’ in Málaga on 26 November 2002, and came into force on 21 December 2003. Specifically, we will focus on the context in which it is applied, and on its content, as well as on the mechanisms for its implementation and the possibilities of defence and appeal in the case of violation of any funda­ mental rights (Barbero 2018). The border between Spain and France extends for more than 656 kilometres along the mountain range of the Pyrenees from the Cantabrian Sea to the Medi­ terranean. Currently, there are 23 border crossings points, with Irun-Hendaia and La Jonquera-Le Perthus being the most important ones. The generic regulation of cooperation in these border areas dates back to the Agreement between Spain and France relating to the juxtaposed National Controls Offices and on Route Controls, of 7 July 1965. This agreement laid down the main rules for setting up border offices, carrying out checks, the legal status of civil servants, and the carrying out of day-to-day cooperation. Under such agreement (and in line with national laws assigning border control competences), the authorities responsible for the control of foreigners in the area are, on the French side, the agents assigned to the Airport and Border Police Stations, and on the Spanish side the agents of the Immigration and Border Brigades of the National Police. As to the content of the Readmission Agreement between Spain and France, it covers both the readmission of the signatory countries’ own nationals (Art. 1 and following), as well as of third-country nationals arrested in one of the signatory countries and who had transited through the other signatory country (Art. 5 and following). Article 6 of the Agreement provides some exceptions when it states that ‘the obligation to readmit will not exist’ when a) those being readmitted come from countries with a common border with the State that is making the readmis­ sion; b) they already have a visa or resident’s permit in the requesting state; c) they have resided for more than six months in the requesting State; d) the request­ ing State has recognised their refugee status or e) they are due to make the first examination of their application for asylum; f) they have already been deported by the requested state; and g) they have a provisional permit in any Schengen state.

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The third part of the Agreement (Arts. 10 to 21) covers situations of ‘Crossing due to deportation or a crossing subsequent to the decision to refuse entry in the territory.’ These provisions regulate conduct by security officials and their iden­ tification, the status of ‘regulatory weapons,’ the situations where the readmitted person commits offences and the coverage of the travel expenses incurred in the implementation of return operations. In any case, the general term for respond­ ing to applications (i.e. requests to readmit by one of the parties) is ‘as soon as possible after the application,’ although it is generally said to be of ’48 hours, extendible by another 24 hours.’ In principle, this period of three days is in line with the Spanish law since the Spanish Constitution marks a limit of 72 hours for detention without judicial intervention. The articles of the agreement, however, do not contain any reference to the rights of readmitted persons, neither during their detention prior to readmission, nor during the procedure nor after they are handed over to another member state. Similarly, there is no mechanism for appeal or com­ plaint in the event that a fundamental right is violated during the implementation of the readmission. According to the Spanish Ministry for Home Affairs, between 2003 and 2015 more than 300,000 people have been the readmitted between the signatory par­ ties under this Agreement. Specifically, France has sent 54,053 people back to Spain, while Spain has sent 251,898 people back to France. The French authori­ ties affirmed that in 2017 they carried out 9,175 ‘no admissions’ operations. Data provided by the Spanish Ministry of the Interior in response to the parliamentary question of the senator of EH Bildu, Jon Iñarritu (684 / 33397), indicate that for the same year ‘only’ 2,690 readmissions were operated from France to Spain. It therefore seems that the rest of returns were operated as pushbacks without sur­ render to the Spanish authorities. It is also interesting to note that in the first nine months of 2018, almost as many returns (9,038) were recorded as in the entire previous year (9,175). The workings of the detention mechanism and subsequent deportation pro­ cesses foreseen by this agreement are also worth examining. Such examination also requires the analysis of the legal status of rights technically attributed to these readmitted people. According to the jurisprudence of the CJEU, checks carried out in border areas must have a non-permanent and random nature, and cannot have an equivalent effect on border checks. Checks must be conducted on the basis of general information, and their aim is justified when functional to the prevention or detection of possible and intended threats to public safety, to combat cross-border crime, or ensure third-country nationals’ compliance with the obligation to carry immigration documents (Illamola Dausà 2012; Mangas 2012). It is also true that Articles 13, 16, and 17 of the current Spanish Citizen Security Law, allow for some control of identity and documentation. The Constitutional Court admitted in its judgment 13/2001 (Case Rosalind Williams) that ‘certain physical or ethnic characteristics can be taken into consideration,’ provided that the identification is carried out ‘in a proportionate, respectful, courteous manner and, ultimately, in a manner that generates less incidence in the sphere of the individual.’ Failure to comply with these guidelines would otherwise result in border checks being

Deportations without the right to complaint 53 conducted for ‘a racist and xenophobic motive.’ International institutions such as the European Commission against Racism and Intolerance in 2006 and 2011, or the United Nations Committee on the Elimination of Racial Discrimination in 2011, have explicitly highlighted the need to eradicate such police practices. We also need to notice that Article 5 of the Readmission Agreement says that the contracting States undertake to readmit to their territory, at the request of the other Contracting Party and without the need of any formalities, a native of a third State who does not comply or has ceased to comply with the conditions of entry or for residence, applicable in the territory of the requesting Contracting Party, provided it can be proven that the person entered the territory of that Party after having resided or travelled through the territory of the requested Contract­ ing Party. The concept of ‘without the need of any formalities’ enshrined in the Agreement appears to run counter to the constitutional traditions of both member states. It also produces results contrary to the fundamental good administration principle according to which all public actions that can cause a fundamental right impact (such as deportation – readmission) must take place according to a precise legal procedure. The right to information, defence, and appeal should be always granted to the individual who is subject to the procedure. However, these rights are not granted under the Agreement. Furthermore, it seems that those ‘detained for readmission’ do not have the basic right to free legal aid, which is instead expressly granted by Art. 24.2 of the SC. Deportation ‘without the need of any formalities’ under the Agreement are therefore much like the ‘pushbacks’ which Spain has been carrying out on the fences of Ceuta and Melilla. The only difference is that in case of ‘readmission’ at the French-Spanish border, there is no violence and no fences are being used. The deportations ‘without the need of any formalities’ that occur between Spain and France fall within the category of ‘pushbacks’ because of both the speed in which they are carried out, and the practical suspension of the normally applicable rules of the administrative procedure. Under Spanish Law, however, legal assistance should be provided in all types of deportation (deportations for refusal of entry 60.1 LOEx, deportation 57.1 LOEx, returns 58.3 LOEx). The only requirement for the application of such guarantee is that foreigners ‘are in Spain’ (Art. 22 LOEx). Furthermore, according to the Sixth Additional Provision LOEx 4/2000, according to the reform introduced by Law 2/2009, [F]oreigners that must be handed over or sent back to their native countries or those which they have travelled through until reaching Spanish territory under the agreements signed by Spain governing the readmission of undocu­ mented migrants shall be subject to the provisions of the above agreements as well as its implementing regulations. . . . Such agreements shall contain clauses regarding the respect of human rights in virtue of what is laid down in the international treaties and conventions. However, as denounced by practitioners and lawyers (Chueca et al. 2006; Puig Pellicer 2006), the common police practice followed by Spanish authorities along

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the border with France is to not notify the Bar Associations of the arrest for read­ mission. This strategy appears directed at preventing the on duty lawyer at the legal assistance department for immigrants from actually providing legal assis­ tance. In the face of these practices, it is worth remembering that a bilateral agree­ ment between two member states cannot be applied in disregard of obligations deriving from the SC, international human rights law (Arts. 1 and 6 of the ECHR), nor EU law (Art. 47 of the Charter of Fundamental Rights).

2.4 Detention pending deportation or return In Spain, there are eight ‘foreigner detention centres’where third-country nationals are held while the administrative inquiry for their deportation is being conducted, and where they are detained prior to the execution of the deportation or return. Some of these centres are used as pre-deportation facilities, but others function more as first reception detention zones. Records exist of ‘temporarily’ converting atypical facilities into fully fledged foreign detention centres. The prison centre in Archidona (Málaga) being used as a CIE is an example in this respect. These are places which, according to the law, are ‘non-prison sites,’ although in reality foreigners are detained there under the custody of the General Commission for Immigration and Borders, which is directed and managed by the National Police Force under the authority of the Ministry for Home Affairs. There is a new version of these centres called Temporary Attention Centres or CATEs, which are located at seaports. Migrants can be detained at these CATEs up to 72 hours, while police and Frontex carry out identification and screening procedures. According to the reports from the NPM-Omb, in 2015, 6,930 foreigners were detained (6,475 men and 455 women), and this figure rose in 2016 to 7,597 deten­ tions (7,084 men and 513 women). One of the main criticisms expressed with regard to these centres is linked with the (in)effectiveness of Spain’s return poli­ cies. In recent years, the global rate of the possibility of deportation fluctuated between 30–40%. Of the 6,930 foreigners detained in 2015, ‘only’ 2,871 were deported (41.43%); this overall figure fell to 30% in 2016 (NPM-Omb 2016). The CIEs with the highest occupancy in 2016 were those of Algeciras (3,101 people), Madrid (1,526), and Valencia (829); Murcia (654), Las Palmas (633), and Barcelona (639 despite being closed temporarily) have a moderate volume; and Tenerife (215) has a smaller volume. Numerous institutions and organisations (the European Parliament, the Aso­ ciación Pro-Derechos Humanos APDHA (Association for Human Rights), the Spanish Public Ombudsman, the Síndic de Greuges, CEAR, Ferrocarril Clandes­ tino, Pueblos Unidos, Migreurop, Women’s Link Worldwide, among others) have submitted reports on the conditions of the CIEs in Spain. These reports point out the deplorable conditions to which the immigrants are subjected, including prison con­ finement in cells; overcrowding, unsanitary conditions, extreme temperatures; lack of the general well-being of the inmates, and torture and ill-treatment. Reports also refer to the lack of interpreters, absence of medical and legal assistance services, and the arbitrariness of the authorities and guards in the imposition of sanctions.

Deportations without the right to complaint 55 Each CIE has its own grim record. In the Aluche CIE, Samba Martine died on 19 December 2011 as a result of lack of sufficient care for pneumonia. In Barcelona, Ibrahim Sissé (Republic of Guinea) died on 6 January 2012 from a heart attack for which he was not treated until it was too late. In the same CIE, the Armenian Aramis Manukyan committed suicide on 3 December 2013 under circumstances which to date remain unclarified. In the CIE in Málaga, African women were forced to participate in sex parties organised by the police who were on guard during the night shift. Nine years after the event, during the trial, only one of the women com­ plainants could make a declaration, as the rest had since been deported. As a result, the five national police officers were acquitted by the Provincial Court of Málaga (sentence 276/2015, issued on 15 June) because the sexual abuse reported by a group of women held at the Centre could not be proved. As we have already men­ tioned in the introduction, on 29 December 2017, the Algerian inmate Mohammed Bouderbala was found hanged in the Archidona CIE. The case was quickly closed. According to many accounts, the degrading conditions to which the detained immigrants are exposed to are due to both the lack of meaningful independent over­ sight supervision in the centres and the excessive discretionary powers exerted by the police in such facilities (Jarrín Morán, Rodríguez & Lucas 2012; Manzanedo 2013; Martínez Escamilla 2014; Revenga Sánchez & Fernández Alles 2015; Sil­ veira 2002; Solanes 2016; Tomé García 2014). For many years, the few rules relating to the detention regime have been provided exclusively by instruments such as ministerial orders or police instructions and internal guidelines developed ad hoc for each centre and characterised by limited publicity and unclear legal value.15 Given the officially ‘non-penitential’ nature of the CIE, their governance and running has become a police-dominated domain. Finally, in March 2014, the Royal Decree 162/2014 was approved to adopt the Operation and Internal System Regulation for the Foreigner’s Internment Centres (CIE). This piece of legislation was introduced with a four-year delay. In fact, the Third Additional Provision of the LOEx 2/2009 gave the government a period of six months to regulate the CIEs. Various scholars’ and migrants’ rights associations denounced, however, that this regulation de facto maintains the correctional status quo of the CIEs. The CIE Regulation (RCIE) provides for a series of mechanisms to guarantee the rights of the inmates. It foresees the possibility to file complaints, petitions, and appeals to the Supervisory Judge or the CIE guards and management struc­ tures (Barbero 2017). As stated in Article 16.n of the regulation, the rights of inmates (who must be informed accordingly upon entering the centre) include the right to ‘complain and make a petition to defend their rights and legitimate interests, which will be forwarded to the recipient immediately whilst maintaining confidentiality.’ Likewise, under Article 19, they may formulate petitions or complaints, or file the corresponding appeals to the competent administrative or judicial bodies or the Public Prosecutor. In addition, detained foreigners can address their petitions and complaints to the Ombudsman and to the bodies and institutions that they may consider appro­ priate. In both cases they may also submit them to the director of the centre.

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According to the CIE Regulation, complaints, requests, or appeals should be filed in standardised forms which should be duly numbered and made available to the inmates. All complaints shall be recorded in the centre’s own registry and pro­ cessed ‘with the utmost urgency.’ The detainee has the right to receive a sealed copy of his/her complaint (Art. 19.2 RCIE). Finally, decisions adopted to address the complaint should be swiftly executed/followed up, and the parties concerned shall be notified about them. Notification shall include information related to the relevant appeal procedures, the time scale for filing appeals, and the indication of the bodies before which the appeals should be presented (Art. 19.3). The CIE Supervisory Judge is the judicial authority of the territory where the competent CIE is located. The Supervisory Judge is responsible for overseeing the conditions of the foreigners detained at the centre. The judge is also required to ‘be informed about petitions and complaints raised by inmates when their fun­ damental rights are affected and to visit the centres when they are made aware of a serious breach or when they consider it appropriate’ (Art. 2 RCIE). If the police want to transfer the inmate to another centre, and the person has a pending complaint regarding the violation of fundamental rights before the supervisory judge, the police unit must obtain authorisation from the judge in advance (Art. 33 RCIE). The CIE Coordinating Board – formed by the centre’s director (who also act at chair), the administrator and the health and safety and social care services unit managers, as well as by the management secretary – is instead responsible for advisory functions, including the ‘preparation of reports that are necessary to resolve the petitions and complaints that the inmates make’ (Art. 10 RCIE). Some of these complaints have motivated the supervisory judges such as those in Madrid to issue judicial orders addressed to the management of the CIE, for example, to adjust the temperatures of the heating and hot water to the optimal heat tem­ peratures in all the areas of the centre including the cells/rooms, to prevent cold, to ensure the availability of hot water in the showers . . . and the provi­ sion of sufficient clothing and footwear. (an order dictated the 18 January, 2017 by magistrate’s Court No. 6 of Madrid) In July 2017, inmates of the Barcelona CIE presented a complaint about assaults on inmates during a hunger strike protest.

2.5 Express deportations An express deportation is a police procedure involving the detention and depor­ tation of a foreigner which is carried out in less than 72 hours. Such operations do not entail detention in a CIE and, therefore, they can be implemented without being subject to any form of judicial control. Express deportations are executed on the basis of a deportation order issued against third-country nationals who either remained in Spain after the expiry of the period given to voluntarily leave

Deportations without the right to complaint 57 the territory, or who did not file an appeal against the expulsion decision within a given time. Contrarily to claims made by the Spanish government, the people who are expelled through express deportation are not always undocumented migrants or criminals. Often, they are family members of Spanish nationals or EU citizens, or permanent residents in Spain with job offers and social networks but wait­ ing for their administrative/legal stay documents to be processed. These circum­ stances lend credit to the hypothesis that a precise strategy is in place to construct a particular type of ‘immigrant to be deported’ (Barbero 2016). People are no longer (only) being stopped randomly or in large police patrol operations but are being asked to present themselves to the police as a precaution­ ary measure or for regularisation procedures, or they are visited in their home, place of work, or where they study. This system is cheaper than detaining for 60 days in a CIE, because the person remains at the police station (without any judi­ cial oversight and validation being necessary). It is also more effective because in most cases it warrants deportation since the execution occurs within the short period of two or three days and avoids the delays that legal assistance or filing of appeals and precautionary suspension measures could produce. Express depor­ tation can be enforced in police cars and even in sea lines that make the trip to Morocco or Algeria, or in flights arranged and organised by Spanish authorities or by Frontex. The list of passengers to be deported is completed with selective detentions, such as those described in the book Paremos los vuelos (Let’s stop the flights) (Campaña Estatal por el Cierre de los CIE 2014). According to data provided by the Spanish government in a written parliamen­ tary response to the parliamentary group Amaiur, in 2013 the police carried out 4,726 deportations from the CIEs and 6,462 from police custody. If during 2016 there were 5,051 expulsions and 4,190 deportations of foreign citizens (9,241 in total), and ‘only’ 2,205 were deported from CIEs, this means that 7,036 people were deported directly from police custody or border detention facilities. There has, therefore, been a large increase in police deportations. Even so, it is virtually impossible to quantify them accurately, for several rea­ sons. First, because the administration itself (whether it be the National Police or the Ministry for Home Affairs) does not supply the data, either because they don’t want to or because they do not quantify the data in a systematic way. Second, the statistics from the administration of the Justice Department on applications for internments are not reliable enough, so data provided by the Home Office, Justice, or Prosecution applications (concessions and refusals) for internment and depor­ tations cannot be cross-referenced. Third, on many occasions, purely administra­ tive deportations are mixed together or confused with what Home Affairs calls ‘qualified’ for criminal deportations or those that involve people who have served prison sentences. Fourth, in many cases they are not considered detentions but mere police procedures or execution of deportation orders and therefore are not recorded in the police detainees’ book or by the Immigration Department which should adjudicate them a lawyer. In spite of the enormous efforts on the part of the legal aid lawyers and the Sub­ committee on Immigration of the General Bar Council, which even has developed

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a specific protocol of legal action in the field of express deportations,16 there is still some way to go. First, there are lawyers who are still unaware of the exist­ ence of the Subcommittee’s Protocol. Second, although there is a protocol and it is known, the absence of communication or insufficient notifications to the legal aid lawyers on duty at the Immigration Departments of the Bar Associations means that a high number of cases have no defence or a total lack of legal counsel or this aid comes too late. Let us remember that there is legal obligation under the -520 Law of Criminal Procedure (and criminal responsibility of public officers -537 Criminal Code) to ensure the detainee immediately receives legal assistance by all means necessary. Third, it is necessary to state that express deportations are arrests in the strict sense, and not merely administrative acts. In any case, Navarro Manich (2016) makes it clear that even in deportations forced through administrative proce­ dures, such as the case of express deportations, formal requirements must be fulfilled, such as the existence of a reporting act (different from the deporta­ tion resolution), a previous warning, as well as the guarantee of the principle of proportionality of the measure with respect to the personal circumstances of the detainee and their families. Fourth, despite the use of the formula, ‘[W]e haven’t called a lawyer because their intervention is not necessary. There is nothing to be done here. We are carrying out a deportation verdict,’ there is still an obligation to provide a lawyer and to go through the legal route. As Sánchez Tomás (2016) points out, in cases of detention under the framework of the Citizen Security Law for people perfectly identified, controls for racial reasons, or for detainees tricked into going to or reporting to the police, this may be considered as an illegal arrest, which can only result in the immediate release or the filing of a Habeas Corpus.

2.6 Conclusions The complaint, as a formal mechanism of initiation of an administrative inquiry to investigate the possible violation of a fundamental right is practically absent formally and materially in police procedures and practices of detention, intern­ ment, and deportation of foreigners in Spain. The particularities of these proce­ dures mean that, even when the person concerned expressly manifests their desire to file the complaint, their vulnerable position causes any complaint mechanism to be useless or insufficient. Thus, we fully agree with Carrera and Stefan when they say, in the introductory chapter of this book that ‘administrative complaint mechanisms can be no substitute of an effective right to appeal before an inde­ pendent judge.’ Precisely, this means that judicial review or criminal proceedings (along with some institutional actions such as those through the Public Ombuds­ men) are the most effective in terms of constraints, punishments, and reparation of the violation. In this text we have mentioned both regulations and empirically listed several procedures that we have considered more serious when it comes to the violation of human rights and, as a result, the creation of the impossibility of filing a complaint.

Deportations without the right to complaint 59 The pushbacks were, and still are, practices which are contrary to international obligations. Their regulation and apparent legalisation through the adoption of the Tenth Additional Provision, however, in our view worsens the situation, espe­ cially considering that before and during the negotiation, voices had been raised against it. As Martínez Escamilla and Sánchez Tomás (2016, p. 1096) pointed out, ‘[O]ne day we will have to shamefully acknowledge that Spanish national sov­ ereignty acted against the most basic human rights recognised by civilised laws.’ We shall remain alert to see how Spain complies with the ruling of the sentence, especially considering that in July 2016, the Minister for Home Affairs, Fernández Díaz responded to the demands of the Commissioner for Human Rights by stat­ ing that he was awaiting the ruling for which he expressed his extreme respect.17 While we have seen that some complaints raised by inmates have sometimes been used to amend deficiencies of the inner workings of CIEs, generally, reports to the police and judicial complaints raised before the supervisory courts of the CIEs or the Prosecutor have a greater guaranteed effect. Thus, even as a tool to maintain and even reinforce, we consider it essential to defend certain mecha­ nisms such as not deporting whistleblowers, victims, or witnesses of possible vio­ lations of rights as long as they are not clarified through a judicial or impartial investigation. On the other hand, readmissions on the border and express deportations are phenomenons which are legally unsustainable because the timing and the tech­ nical intricacies they involve represent a systematic violation of guarantees that can help detainees, regardless of their documented administrative status; they are socially destructive as well, because they cut short the lives of people who have future projects as individuals or in families. Everyone has the right to rebuild their lives. The revocation of the deportation orders is a tool which, despite its arbitrary use by the administration, should be used to break down the wall of the firm verdict or legal precedent. The production of materials such as protocols or judgments in this area contributes positively to this breakdown process. In any case, acting (and getting involved) early in providing legal aid is also a determining factor in preventing the prophecy of the deportation from taking place. We conclude by agreeing with Solanes Corella (2017, pp. 196–197) who says that in certain aspects we are witnessing what might be considered as the stand­ ardisation of illegality. I.e. the continuous repetition of practices that are man­ ifestly inconsistent with the constitutionally renowned fundamental rights and minimum standards of the international law of human rights, but being on the border they are assumed to be necessary measures. This idea connects with that expressed by Martínez Escamilla and Sánchez Tomás (2016, p. 1081), who pointed out that in the fight against illegal immigration there is no expense spared when it comes to materials and legal instruments, ‘which sometimes cut as much or more than the knives do.’These are measures that should be neither standardised nor permitted even if they are considered exceptions.

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In this regard, human rights demand ‘particularly from jurists, to take a critical look against minimalist reinterpretations of the substance of the content’ (Mar­ tínez Escamilla et al. 2014, p. 2); the right to effective judicial protection is a fundamental right that must be preserved and which we must fight for, each of us with our own weapons, so that this may be so.

Notes 1 Such agreements shall contain clauses for the respect of Human Rights in virtue of what is set forth in the treaties and international conventions. 2 Under the Secretary of State for Security of the Ministry for Home Affairs art. 2.3 (b), Royal Decree 400/2012 of 17 February, which develops the basic organic structure of the Ministry of Home Affairs. 3 Article 3 of 5/2015 Instruction of the State Security Office, on the organisation and functions of the Security bodies and services. 4 The term ‘pushback’ refers to the returning of people to another country without following the legally established procedure or complying with the internationally recognised guar­ antees for foreign citizens detained by the Police and State Security Forces in an area of sovereignty through the use of de facto procedures by the Police and State Security Forces. 5 The NGO – PRODEIN – filmed how civil guard officers beat immigrants at the fence in Melilla; see www.youtube.com/watch?v=yFxc-r8kc0Y. 6 Council of Europe (2015), ‘Spain: Legislation and Practice on Immigration and Asy­ lum Must Adhere to Human Rights Standards’, Press – Commissioner for Human Rights, 16 January, www.coe.int/en/web/commissioner/-/spain-legislation-and-practiceon-immigration-and-asylum-must-adhere-to-human-rights-standards. 7 Included through the incorporation of the Tenth Additional Provision of the LOEx introduced in section 1 of the First Final Provision of the OL 4/2015. OL 4/2015 of 30th March Citizen Security Law n° 77, 31st June 2015 Spanish OJ, pp. 27216–27243(Ley Orgánica 4/2015, de 30 de marzo, de protección de la seguridad ciudadana, BOE núm. 77, de 31 de marzo de 2015, pp. 27216–27243). 8 ECtHR, N.D. and N.T. v. Spain, 03.10.2017 (application n° 8675/15 and 8697/15). 9 ECtHR, N.D. and N.T. v. Spain, para. 54. 10 ECtHR, N.D. and N.T. v. Spain, para. 107. 11 ECtHR, N.D. and N.T. v. Spain, para. 92. 12 Letter from the Commissioner for Human Rights to the Spanish Minister for Home Affairs, 1 July 2016, CommHR/NM/sf 033–2016. 13 ECtHR, N.D. and N.T. v. Spain, para. 114. 14 Appeal of unconstitutionality no. 2896–2015 admitted for processing on 9 June 2015, Spanish OJ 143 of 16 June 2015, p. 50083. 15 For example, see the Circular 8/2007 of 24 April, issued by the Commissioner General of Immigration and Documentation, which provides ‘instructions on the preparation of sanctioning proceedings for undocumented residence.’ 16 See Protocols of Legal Action in matters of Aliens of the Subcommission of Immigra­ tion CGAE, www.abogacia.es/wp-content/uploads/2015/05/ExpExpresF.pdf. 17 Response by the Spanish Minister for Home Affairs Mr. Fernández Díaz to the Commissioner for Human Rights of 7 July 2016, https://rm.coe.int/ref/CommDH/ GovRep(2016)15.

References Amnesty International (2007), ‘España – Sal en la herida. La impunidad efectiva de agen­ tes de policía en casos de tortura y otros malos tratos’, www.es.amnesty.org/uploads/ media/Sal_en_la_herida.pdf.

Deportations without the right to complaint 61 Amnesty International (2017), ‘España – Informe de seguimiento al Comité de Derechos Humanos de las Naciones Unidas’, www.amnesty.org/download/Documents/EUR416520 2017SPANISH.pdf. APDHA (2017), ‘Derechos Humanos en la Frontera Sur’, www.apdha.org/media/informefs2015-web.pdf. Arce Jiménez, C. (2017), ‘Dos años de devoluciones en caliente “legales” ’, in Derechos Humanos en la Frontera Sur, APDHA, pp. 54–63. Barbero, I. (2016), ‘Citizenship, Identity and Otherness: The Orientalisation of Immigrants in the Contemporary Spanish Legal Regime’, International Journal of Law in Context, Vol. 12, No. 3, pp. 361–376. Barbero, I. (2017), ‘El acceso a los centros de internamiento para extranjeros como control y garantía de derechos’, Revista Derechos y Libertades, No. 37, pp. 233–256. Barbero, I. (2018), ‘The European Union Never Got Rid of Its Internal Controls: A Case Study of Detention and Readmission in the French-Spanish Border’, European Journal of Migration and Law, Vol. 20, No. 1, pp. 1–27. Bertomeu Navarro, A. (2016), ‘La inclusión del rechazo en frontera en la legislación espa­ ñola de extranjería. Análisis de la legalidad de las “devoluciones en caliente” aconteci­ das en la frontera sur española’, in J.I. Ugartemendia Eceizabarrena & H. Labayle (eds.), La tutela judicial de los Derechos Fundamentales en el Espacio de Libertad, Seguridad y Justicia de la Unión Europea, San Sebastian: Instituto Vasco de Administraciones Públicas, European Inkilings (EUi), No. 8, pp. 338–402. Brigadas Vecinales de Observación de Derechos Humanos (2015), ‘Persecución y acoso policial. la persistencia de los controles de identidad por perfil étnico’, http://brigadas vecinales.org/wp-content/uploads/2015/05/Tercer-informe-BVODH.pdf. Campaña Estatal por el Cierre de los CIE (2014), Paremos los vuelos: Las deportaciones de inmigrantes y el boicot a Air Europa, Cambalache inmigración. Carrera, S. (2016), Implementation of EU Readmission Agreements: Identity Determina­ tion Dilemmas and the Blurring of Rights, Switzerland: Springer Briefs in Law, Springer International Publishers. https://link.springer.com/content/pdf/10.1007%2F978-3-319-4 2505-4.pdf Carrera, S. (2018), ‘On Policy Ghosts: Readmission Arrangements as Intersecting Policy Universes’, in S. Carrera, A.P.L. den Hertog, M. Panizzon & D. Kostakopoulou (eds.), EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Uni­ verses, Series Immigration and Asylum Law and Policy in Europe, Vol. 44, 10 Decem­ ber, Leiden: Brill Nijhoff Publishers, pp. 21–59. Castilla, K. (2018), ‘N.D y N.T contra España: más que las “devoluciones en caliente”, menos que un recurso con las máximas garantías’, 14 February, http://cermigracions. org/es/blog/devoluciones-en-caliente. Chueca, A., Aguelo, P., Almandoz, I., Puig Pellicer, J.R. & Batalla, M. (2006), Informe sobre la problemática de la asistencia letrada en las fronteras interiores Schengen, Sub­ comisión de Extranjería del Consejo General de la Abogacía. Council of Europe (2015), Spain: Legislation and practice on immigration and asylum must adhere to human rights standards, Press - Commissioner for Human Rights, 16 January, https://www.coe.int/en/web/commissioner/-/spain-legislation-and-practice-on­ immigration-and-asylum-must-adhere-to-human-rights-standards González García, I. (2017), ‘Rechazo en las fronteras exteriores europeas con Marruecos: inmigración y derechos humanos en las vallas de Ceuta y Melilla, 2005–2017’, Revista General de Derecho Europeo, No. 43, pp. 17–57. Illamola Dausà, M. (2012), ‘TJUE – Sentencia de 22.06.2010 (Gran Sala), Aziz Melki y Sélim Abdeli, C-188/10 y C-189/10’, Revista de Derecho Comunitario Europeo, No. 41, pp. 205–220.

62

Iker Barbero and Mariona Illamola-Dausà

Jarrín Morán, A., Rodríguez, D. & Lucas, J. (2012), ‘Los Centros de Internamiento para Extranjeros en España: una evaluación crítica’, Revista CIDOB d’Afers Internacionals, No. 99, pp. 201–220. Lasagabaster, I. (2016), ‘La regulación de la expulsión de extranjeros en la Ley de Seguri­ dad Ciudadana y la prohibición de tratos inhumanos y degradantes. Breve consideración sobre la situación en la frontera de Ceuta y Melilla’, in I. Barbero & N. Arese (eds.), Tensiones entre la política de extranjería y los Derechos Humanos, Tirant lo Blanch, pp. 117–142. Mangas, A. (2012), ‘Algunos desarrollos jurisprudenciales sobre asilo e inmigración irregular en la Unión Europea’, in J.M. Aznar Gómez (ed.), Estudios de Derecho Inter­ nacional y Derecho Europeo en Homenaje al Prof. Manuel Pérez González, Tirant lo Blanch, pp. 1629–1644. Manzanedo, C. (2013), ‘Resoluciones de los juzgados de control de los centros de inter­ namiento de extranjeros, CIE, 2009–2013’, Revista de derecho migratorio y extranjería, No. 34, pp. 249–259. Martínez Escamilla, M. (2014), ‘Expulsión e internamiento de extranjeros: ¿Quiénes están en los CIE?’ in I. Reig Fabado (ed.), Libertad de circulación, asilo y refugio en la Unión Europea, Valencia: Tirant lo Blanch, pp. 347–376. Martínez Escamilla, M. & Sánchez Tomás, J.M. (2016), ‘Devoluciones ilegales en la frontera sur. Análisis jurídico de las denominadas “devoluciones en caliente” ’, in M.L. Maqueda Abreu, M. Martín Lorenzo & A. Ventura Püschel (eds.), Derecho Penal para un estado social y democrático de derecho: estudios penales en homenaje al profesor Emilio Octavio de Toledo y Ubieto, Madrid: Servicio de Publicaciones de la Facultad de Derecho de la Universidad Complutense de Madrid, pp. 1081–1103. Martínez-Escamilla, M., Sánchez Tomas, J.M., Segovia Bernabé, J.L., Díez Ripollés, J.L., García España, E., Gimbernat Ordeig, E., González García, J.V., Pérez Alonso, E., Pérez Manzano, M., Pérez Tremps, P., Pérez Vera, E., Revenga Sánchez, M., Rey Martínez, F., Ríos Martín, J., Saíz Arnaiz, A. & Villaverde Menéndez, I. (2014), ‘Expulsiones en caliente”: cuando el estado actual al margen de la ley’, Informe jurídico de 27 de junio, http://eprints.ucm.es/25993/. Martínez-Escamilla, M., Sánchez Tomás, J.M., Segovia Bernabé, J.L., Díez Ripollés, J.L., García España, E., Gimbernat Ordeig, E., González García, J.V., Pérez Alonso, E., Pérez Manzano, M., Pérez Tremps, P., Revenga Sánchez, M., Rey Martínez, F., Ríos Martín, J. & Villaverde Menéndez, I. (2015), ‘Rechazos en frontera”: ¿Frontera sin derechos?’ Informe jurídico de 13 de abril, https://eprints.ucm.es/29379/. Moya, D. (2018), ‘El Tribunal Europeo de Derechos Humanos declara contrarias a los Derechos Humanos las devoluciones en caliente en Ceuta y Melilla’, 15 February, http:// cermigracions.org/es/blog/el-tribunal-europeo-de-derechos-humanos-declara-contrar ias-los-derechos-humanos-las. Navarro Manich, J.A. (2016), ‘La ejecución forzosa de las órdenes de la expulsión mediante detención, privación de libertad e inmediata expulsión: la necesaria habilitación previa mediante acto administrativo dictado de conformidad con el principio de proporcionali­ dad’, in M. Martinez Escamilla (ed.), Detención, internamiento y expulsión administra­ tiva de personas extranjeras, Madrid: Consejo General del Poder Judicial, pp. 139–156. NPM-Omb (2016), ‘Informe anual 2016 Mecanismo Nacional de Prevención de la Tortura’, Defensor del Pueblo, www.defensordelpueblo.es/informe-mnp/mecanismo­ nacional-prevencion-la-tortura-informe-anual-2016. Puig Pellicer, J.R. (2006), ‘Asistencia letrada en la frontera de La Jonquera’, Revista de derecho migratorio y extranjería, No. 13, pp. 279–282.

Deportations without the right to complaint 63 Revenga Sánchez, M. & Fernández Alles, J.J. (2015), Los Centros de Internamiento de Extranjeros. Régimen jurídico tras el Reglamento de 2014 y la STS de 10 de febrero de 2015, Tirant Lo Blanch. Sánchez Tomás, J.M. (2016), ‘Detención, internamiento y expulsión de ciudadanos extranjeros en situación irregular. Marco comunitario e internacional’, in M. Martinez Escamilla (ed.), Detención, internamiento y expulsión administrativa de personas extranjeras, Consejo General del Poder Judicial, pp. 51–80. Sánchez Tomás, J.M. (2018), ‘Las “devoluciones en caliente” en el Tribunal Europeo de Derechos Humanos (STEDH, AS. N.D. y N.T. vs España, de 03.10.2017)’, Revista Española de Derecho Europeo, No. 65, pp. 101–135. Schieffer, M. (2003), ‘Community Readmission Agreements with Third Countries – Objec­ tives, Substance and Current State of Negotiations’, European Journal of Migration and Law, Vol. 5, No. 3, pp. 343–357. Silveira, H. (2002), ‘Los Centros de Internamiento de Extranjeros y el futuro del Estado de Derecho’, Mientras tanto, pp. 93–102. SJME (Servicio Jesuita a Migrantes-España) (2017), ‘Informe Anual CIE’, http://sjme.org/ wp-content/uploads/2017/10/informecie16.pdf. Solanes Corella, Á. (2016), ‘Un análisis crítico de los centros de internamiento de extran­ jeros en España’, Revista Telemática de Filosofía del Derecho, No. 19, pp. 37–76. Solanes Corella, Á. (2017), ‘La protección judicial de los extranjeros frente a las expul­ siones colectivas y las devoluciones “en caliente” ’, Cuadernos Electrónicos de Filosofía del Derecho, No. 36. Soler García, C. (2018), ‘La prohibición de las expulsiones colectivas de extranjeros en la jurisprudencia del Tribunal Europeo de Derechos Humanos: especial referencia al caso de España’, Revista General de Derecho Europeo, No. 45, pp. 107–160. Strik, T. (2010), ‘Readmission Agreements: A Mechanism for Returning Irregular Migrants’, Parliamentary Assembly of the Council of Europe, Doc. 12168, 16 March. Tomé García, J.A. (2014), Internamiento Preventivo de Extranjeros Conforme al Nuevo Reglamento de los CIE, Colex.

3

Hungary at the border of populism and asylum Judit Tóth

3.1 Populism and facts A story about a family can show how difficult the situation of asylum seekers at the Hungarian border has become and show it better than a long legal analysis. In this article, I try to provide both the story and the analysis. On the night of 7 May 2019, Hungary takes action to expel two families of Afghan asylum-seekers from the country. Four adults and seven children who had been detained since January 2019 in a transit zone at the Hungarian-Serbian border are escorted to a border gate with Serbia. Two choices are offered to them: (i) entering Serbia or (ii) being deported to Afghanistan on a flight organised by Frontex. ‘The treatment of these families, including their removal from Hungar­ ian territory with no serious effort to look at their claims to refugee status, is deeply regrettable,’ said Filippo Grandi from the UNHCR. ‘Their case highlights our deep concerns about what is happening in Hungary, where asylum-seekers are rejected not on the merits of their claim, but because under Hungary’s legisla­ tion, their claims are automatically considered inadmissible coming from a safe third country.’ The UNHCR, which had learned that the families faced removal to Afghanistan, appealed on 6 May 2019 to the Hungarian authorities in an (unsuc­ cessful) attempt to prevent removal from Hungarian territory. The UNHCR staff, which have no access to the pre-removal part of the transit zone where the families were being held, were able to observe the Afghans forcibly crossing the border. They consequently alerted colleagues in Serbia who, in turn, informed the Serbian authorities of the Afghans’ arrival. The Serbian authorities have given the families accommodations in a reception centre, which the UNHCR and its partners have access to and where they can provide counselling. The families have told UNHCR that, prior to return, the Hungarian authorities did not give food to the adult members for five days, echoing previous reports of rejected asylum seekers, who were left without food in the transit zone. Based on such declara­ tions and evidences, the UNHCR has urged the Hungarian government to ensure that all asylum seekers in detention are provided with food, in compliance with human rights law and the government’s legal obligations. A third Afghan family composed of a mother with four children remained in the transit zone after the Euro­ pean Court of Human Rights granted an injunction preventing them from being removed. Despite the ECtHR requesting interim measures (by the Rule 39 of the

Hungary at the border of populism and asylum

65

Rules of Court), the fate of these family members remains a factor of concern for the UNHCR, since they are among the approximately 40 individuals, including Iraqi and Iranian nationals, held in the pre-removal area of the transit zone and at risk of either being returned to their country of origin or coerced to re-enter Serbia. UNHCR advised Frontex to refrain from supporting Hungary in the enforcement of return decisions which are not in line with international and EU law. Based on this story, the following question arises: does this type of treatment reserved to asylum seekers and migrants in Hungary depend on the populist poli­ cies adopted by the Hungarian government? Populism is a kind of political rhetoric and conviction, mostly expressing mistrust and hostility to political elites, and it is based on the people’s instincts as the main guiding principles of political action. Populist rhetoric ‘tends to be a collection of elements of both left and right think­ ing, placing high emphasis on the importance of leadership on the one hand and on popular equality, often in a highly illiberal and intolerant manner, with regard to traditional civil liberties.’ The populist leader stands out as having the intention to return power to ‘the masses,’ and therefore, the requirement that the whole nation or the ‘true, authentic part of the nation,’ the ‘silent, working and suffering majority of the nation’ shall be represented and defended by him (Robertson 1992). A first hint of how populism is shaping migration and asylum policies in Hun­ gary is provided by the specific language currently used in Hungarian law, official statistics, police instructions, and official reports for the public. There is no ref­ erence to irregular migration in these sources, which only use the terms ‘illegal migrant.’ Similarly, the word ‘deportation’ is used instead of return, expulsion, or removal. The term ‘mass migration/influx crisis’1 populates Hungarian asylum law. In substance, among the many available expressions, the legislators decided to choose the most offensive, dehumanising, and degrading expressions for migrants and asylum seekers (Tóth 2017). At the bureaucratic level, it is striking to note that there is no standard form available in foreign languages and informa­ tion on foreign (applicants’) rights. Furthermore, no legal advice, representation, or linguistic assistance is granted, save for a sort of authority-appointed free legal aid. Official decisions are delivered in Hungarian, and only communicated in another language orally and in abbreviated form. During hearings, interpretation services only assist the public authority and are not available at the request of the third-country national or the legal adviser. In any case, interpreters are by no means professional language assistants. Only a small part of Hungarian law is available in authentic translations,2 and, unfortunately, it does not include legis­ lation on migration or asylum. These facts are far from being merely anecdotal; they show how the law has progressively become a mere instrument for populist politics developed without transparency and democratic control. As for the way in which the government manipulated statistics, it is worth noting how there is no evidence that the increase in number of entries of migrants and asy­ lum seekers in Hungary in 2015–2016 was such as to cause ‘a crisis.’ The crisis rhet­ oric was instead artificially used by public authorities to strengthen the government’s social acceptance. This also means that legislative changes and the transformation of asylum management policies are not justified by actual facts.3 As Table 3.1 indicates, the number of beneficiaries of international protection has remained steadily low,

Asylum seekers (% of the main nationality distribution) 1,386 966 1,454 1,550 753 678

462

419

483

508 (146/356/6)

432 (154/271/7)

1,291 (106/1110/75)

379

2,521

1,053

508

386

653

43,387

13,325 (4.6% of the EU28)

n.d.

9,905 (2.6% of the EU28)

1,514

18,207

39,1 363

20,161

11,055 (3.5% of EU28)

11,505 (3.9% of the EU28)

5,495

Illegal border crossing across the external Schengen borders

9,240 (2.9% of EU28)

Recognised status Expulsion TCNs refused entry at the (refugee, subsidiary Hungarian borders protection or tolerated by the law enforcement by the court in (EUROSTAT) (IAO) final decision migrant)

Source: Compilation from the data: Ministry of the Interior – Immigration and Asylum Office www.bmbah.hu/index.php?option=com_k2&view=item&layout=item&id =177&Itemid=1232&lang=hu; Eurostat http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_eirfs&lang=en; Central Statistical Office www.ksh.hu/docs/hun/ xstadat/xstadat_evkozi/e_wnvn001.html and HQ of the Police www.police.hu/sites/default/files/Hatarrendeszet%20HK%202017.%2011.pdf

2012 2,157 (41% Afghan, 15% Pakistan, 10% Kosovar) 2013 18,900 (32% Kosovar, 17% Pakistan, 12% Afghan) 2014 42,777 (50% Kosovar, 21% Afghan, 15% Syrian) 2015 177,135 (37% Syrian, 26% Afghan, 14% Kosovar) 2016 29,432 (37% Afghan, 15% Pakistani, 15% Syrian) 2017 3,397 (42% Afghan, 24% Iraq, 17% Syrian)

Year

Table 3.1 Accession to the protection in Hungary

Hungary at the border of populism and asylum

67

while the numbers and composition of applicants have changed since 2012. Table 3.1 also shows that, for many years, Afghans, Syrians, and Pakistanis have formed an increasing proportion of applicants (‘Magyarországra érkezett menedékkérők és a nemzetközi védelemben részesülők száma’). Figures related to expelled people have steadily outnumbered those of indi­ viduals who have been granted some form of international protection, while the rate of recognition has remained constant at a five percent average (Kovács-Grád 2018). Third-country nationals have been consistently refused entry at the border, even at a time when they were massively fleeing through the Balkan route. Table 3.2 indicates that most of the claims are not substantively evaluated and assessed. Decisions on denial or recognition are not taken for the TCNs con­ tinuing their migration trajectories beyond Hungary. The capacity of the asylum authorities to process international protection claims is limited. Consequently, many pending cases take years to be decided upon. In the meantime, applicants go through different detention facilities, and no special protection needs of vulner­ able groups (families with children, elderly, pregnant women, and unaccompa­ nied minors [UAM]) are taken into account. Ninety percent of those who finally receive international protection are no longer in Hungary, because they did not have a residence address as a consequence of the weak integration and assis­ tance programs. This confirms that Hungary is not a destination but only a transit country. From Table 3.3, we can conclude that, even in the period of large-scale num­ bers of entries of asylum seekers, the amount of refusals of protection seekers at the Hungarian borders did not increase considerably. If asylum seekers were not refused at the borders, it appears, however, that the Hungarian the authority neither dealt with many potential applicants nor proceeded to identify them, or to receive their application. The first four grounds of refusal mainly concern forced migrants, although their rates are decreasing (going within five years from 21 to 12%). Some grounds for refusal are atypical for (potential) protection seekers (with motivations including, for instance, missing documentation justifying the Table 3.2 Share of applicants and applications Subgroup of authority cases

2015

2016

2017

Procedure is terminated Rejected applications Application is pending Detention of asylum seekers Detention by alien police Order to reside in a community (controlled) lodging Resident as recognised refugee in Hungary Resident as recognised subsidiary protected person in Hungary Resident as tolerant migrant in Hungary

152,260 2,917 35,594 2,393 1,545 12,092 1,804 1,366

49,700 4,675 3,700 2,621 1,073 949 1,830 1,540

2,049 2,880 754 (1 July) 391 455 388 1,781 1,774

n.d.

48

61

Source: Compilation from the data: Ministry of the Interior – Immigration and Asylum Office www. bmbah.hu/index.php?option=com_k2&view=item&layout=item&id=177&Itemid=1232&lang=hu

99,240 11,055 13,325 11,505 9905

2012 2013 2014 2015 2016

4405 1130 1170 135 325

1100 1185 2215 235 100

1,430 1,600 1,540 1,270 775

50 55 45 25 35

2,205 2,865 3,040 2,110 935

11,665 11,665 33,795 33,370 33,945

620 1,420 840 410 225

22,755 33,085 33,560 33,915 33,555

110 555 1115 335 115

No valid False travel No valid visa False visa No proper doc. to Has already No sufficient Alert has Threat travel doc. doc. or residence or residence justify the purpose stayed 3 means of been issued to public permit permit of stay months subsistence order, security or health

Source: Eurostat http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_eirfs&lang=en

Total

Year

Table 3.3 Refused entry at the Hungarian external borders and reasons as the Schengen Border Code determines

Hungary at the border of populism and asylum

69

purpose and conditions of stay, or the circumstance that the TCN already has stayed for 90 days within 180 days, as well as the absence of sufficient means), although their rate has been overall stable. Only the number of refusal of entry for circular migrants and refusals undertaken on the basis of alerts issued on TCNs are growing. However, if we look at the Police statistics of refused entries at the border,4 a different picture is presented, as other reasons appear to be used to uphold decisions of denial of entry (e.g. the foreigner is listed in the national registration/alert system, which included 961 foreigners in 2016 and 1020 in 2017). The total number of people refused per year also differs from Eurostat data in each of the categories of the Schengen Borders Code. In 2016, the total number of people was 12,526, and in 2017, it was 14,055, while the number of asylum seekers decreased (Eurostat, ‘Enforcement of Immigration Legislation Statistics’). Police and soldiers were patrolling the fence along the 175 km section of the border in 2016–2018. As of 2019, only the police are patrolling the border zone to prevent foreigners from entering, especially at the two entry points where asylum applications can be submitted. Such applications can only be filed after a long wait, and authorities may still refuse TCNs entry. People denied entry are returned to the neighbouring country, while some are being sanctioned under a minor offence pro­ cedure. Based on the data in Table 3.4, it is difficult to draw a different conclusion than that, despite the fences, sanctions, and limited access to protection, irregular migration has not decreased. By 2019, the number of asylum seekers has instead Table 3.4 Border police data on measures related to irregular migration Prevented entry

Escort (for designated gate)

Refused entry

Minor offence for illegal entry or its attempt

Jan–May 2017

4,936

5,384

896 (among them Afghan: 224, Syrian 110, Iranian 11)

Jan–May 2018

1,051

7,254

Jan–May 2019

453

3,274 (among them Afghan 1263, Syrian 283, Iraqi 146, Iranian 16) 1,584 (among them Afghan 598, Syrian 30, Iraqi 64, Iranian 59) 3,911 (among them Afghan 2,554, Syrian 175, Iraqi 287, Iranian 434)

610 (among them Afghan: 69, Syrian: 26, Iranian: 23) 495 (among them Afghan: 92, Syrian: 12, Iranian: 10)

6,288

Source: Compilation from the data: HQ of the Police www.police.hu/hu/a-rendorsegrol/statisztikak/ hatarrendeszet

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Judit Tóth

increased slightly, while people of the same nationality appear among those in need of protection and those who have been sanctioned (i.e. who are expelled). Current legislation establishes that the simple crossing of the border area where the fence has been erected constitutes a crime (potentially leading to imprison­ ment). In 2016, there have been 2,968 cases of third-country nationals incrimi­ nated for such an offence. In 2017, no cases of this type have been recorded, but the rules have remained. As for expulsions and return policies from such border zones, data from May 2019 can be taken as an example of how Hungarian immi­ gration enforcement works. During that month, the border police took at least 7,500 measures directed at tackling ‘illegal migration,’ which included actions directed at the expulsions of third-country nationals. Among the total number of apprehended people (150 to 200 estimated individuals, including a significant number of Afghan nationals), it appears that about 100 people were expelled in total. From the limited information available regarding the procedures followed to expel the concerned individuals, we can see that three to five have been handed over to foreign authorities based on readmission agreements, five to seven have been expelled through the so-called ‘Dublin procedure transfers,’ and 20 to 30 (including Afghan nationals) have been expelled on non-specified grounds.5 These figures appear even more concerning in light of the fact that thorough examining of individual circumstances at the border is impossible, and this remark even applies to nationals from countries with high recognition rates of interna­ tional protection claims, such as Afghans. Third-country nationals irregularly staying in Hungary can also be returned by virtue of bilateral readmission agree­ ments concluded by the country with another EU member state. A foreigner can file a complaint within 24 hours from the moment when he or she receives notice of return decisions issued on the basis of such instruments. The complaint has no suspensive effect. The readmission agreements foresee the transfer (deportation) to be carried out by an ‘official escort.’ No expulsion can, however, be ordered if the alien has lodged an international protection application in the transit zone des­ ignated at the Schengen external borders (at two entry points), or submitted after the imposition of emergency measures due to a large scale immigration situation (Third, Article 45/B and C as amended by Act XX of 2017). In 2015, about half a million people went through Hungary. Most of the entrants moved towards Austria on foot, on board of police managed buses, or in trains. In many cases, no prior registration and fingerprinting were performed by Hungarian authorities. Only 177,000 persons accessed the registration process and requested protection. Many were pushed back to Serbia. These numbers and remarks show how the Hungarian government increasingly attempted, and in fact managed, to transfer the burden to deal with refugees to other EU and non-EU countries. The anti-immigration policies put in place (including the criminalisation of migration) and the harsh treatments of asylum seekers since 2014 severely violate domes­ tic and European law as well as the principles of solidarity and responsibilitysharing for refugees. Rejection of any EU proposal concerning the introduction of a stable relocation and reception mechanism based on quota and the admission of ‘zero applicants’ from other member states led to the infringement procedure

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in 2017. Although the Asylum Act (Article 77 in Act LXXX of 2007) has been introduced to regulate temporary protection for prima facie recognition and mass influx of refugees (Article 19), it has been completely neglected. In the meantime, the dominance of a militant security discourse created an increasingly hostile pub­ lic attitude towards migrants (Lazaridis & Wadia 2015). Public media, under the direction of the government, continuously proclaimed in news and on posters that the ‘migrant is dangerous, terrorist and enemy of the Hungarians.’ Although the number of protection seekers dropped due to the draconian physical barriers created at the Hungarian borders, efforts of further externali­ sation and securitisation of migration control (Nagy 2016) have been pursued (in the form of emergency measures) for years (at least from 15 September 2015 to 7 March 2020). This led to a continuous violation of the law as well as of the constitutional guarantees that should still apply, even in cases of emergency. Moreover, the amendment of the Act on Asylum in 2015 gave the government an extensive mandate to introduce exceptional rules without having to pass constitu­ tional revisions. Furthermore, such extended mandate was granted to the govern­ ment without a prior and genuine risk-and-need assessment (Mészáros 2017; Tóth 2015). The amendment of the Act introduced, in particular, provisions concerning the introduction of ‘emergency measures in mass immigration crisis’ (Act CXL of 2015). The powers of the police are enhanced and expanded: they may limit the operation of public institutions, police officers can enter and remain in a private home ‘to monitor and secure the premises’ without the need to provide a writ­ ten notice to owners or residents; they can even prevent residents from entering or leaving the building. The Hungarian army is now entitled to perform border control and surveillance tasks, to execute the ‘necessary measures’ to manage ‘the conflict situation and mass migration’ directly threatening the state border and to combat ‘violent acts against the state border’ (Act CXLII of 2015). The government wants to prevent the arrival of refugees to Hungary through the transformation of asylum rules, the restriction and impediment of legal remedies, the establishment of a four-meter-high fence along the 175-km-long Hungarian­ Serbian-Croatian border, together with the criminalisation and sanctioning of unlawful entry and stay. In 2015 alone, the government spent 280 million EUR on ‘crisis management’ initiatives. It is estimated that this amount of money could have covered costs related to the accommodation of 40,000 asylum seekers for a whole year.6 One might legitimately wonder whether these expensive border con­ trol, patrolling, and deportation policies are really successful or ‘cost-effective.’ OECD research on well-being shows that, despite all the government efforts, only half of the population feel safe in public places after dark, and that Hungarians are among the most discontented citizens in Europe.7 The OECD survey also shows that demand for ‘public safety’ is higher in Hungary than anywhere else in Europe. It reasonable to question whether such results constitute a by-product of the govern­ mental anti-migrant propaganda. A Pew Research Center study revealed that 66% of Hungary’s population fear migrants, the greatest share compared to that of the other 37 states polled in the study. At the same time, the country has among one of the lowest migrant or refugee populations in Europe (Poushter & Manevich 2017).

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3.2 Criminalisation of entry and residence In 2015, climbing/crossing the border fence had been introduced as an autono­ mous criminal offense into the Penal Code of Hungary. Perpetrators of such acts might be sentenced to imprisonment periods of up to three years. Damaging and destruction of the fence also became punishable according to a provision also included in the Penal Code. In addition to imprisonment (or suspension of proba­ tion), the offender’s expulsion from Hungary must always be ordered. If the expul­ sion is ordered for a definite period of time, this period shall not be shorter than twice the term of imprisonment (Act CXL of 2015). In practice, only one-third of investigated migrants (3,180 people in 2016 and 0 in 2017) were sentenced, while the majority of sentenced migrants only received a fixed term expulsion. The number of appeals at court was below 2% of all cases (Janecsko 2016; Orszá­ gos Rendőrfőkapitányság – ‘Határrendészeti Helyzetkép’ 2017). Since 2012, fines may be imposed to third-country nationals in different cir­ cumstances, including when he or she violated the rules on foreigners’ entry, registration, and residence in Hungary (e.g. is found with irregular travel docu­ ments, or contravened border control orders, including the entry ban issued by border authority) (Act II of 2012). Since 2017, short-term imprisonment may be imposed on migrants and asylum seekers under administrative custody or deten­ tion who are not in the designated location (Act XX of 2017). Within one year, the number of detected minor offences for illegal entry decreased by 86% (in 2016: 18,706, in 2017: 2,627), although, over the same period, the composition of the offenders by nationality (60% from Iraq, Afghanistan, Syria, and Pakistan) has not changed. In 2016, the number of people arrested within the 8 km border zone and further in the country was 7,248. It went up to 8,604 people in 2017 (Országos Rendőrfőkapitányság – ‘Határrendészeti Helyzetkép’ 2017). All these punitive measures fall within the competence of the police. Their decision may be challenged by a foreigner within eight days. If the amount of the fine is determined by a separate law, the complaint cannot concern the amount of the fine. The complaint has to be lodged before the very same police authority that undertook the decision. If, upon the reception of the complaint, the police do not change its own decision, it will have to forward the complaint to the local court. The court shall hold a hearing if the claimant has specifically requested so in his or her complaint or (in the absence of such request) if the court deems it neces­ sary. The court may change the police’s decision to the benefit of the foreigner if the foreigner puts forward a new fact or evidence that the police was not aware of when making its decision, or if the police misapplied the law (Article 106–116).

3.3 Denied access to protection and unfair asylum procedures Given the policies of containment and criminalisation adopted by Hungary in the course of the past several years, it is important to verify how migrants and per­ sons seeking international protection in that country can obtain redress of abuses

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suffered at the hands of those performing border management and expulsions operations. To what extent is access to a fair trial secured? Is there the possibility to obtain effective remedies against fundamental rights violations? What kind of obstacles hinder the attainment of such remedies? Despite migrants and asylum seekers being refused entry into the country in large numbers (see Table 3.1), no reference is included in any domestic law as to the type of remedies available to challenge a rejection decision. Despite the obli­ gation deriving from Article 14 and Annex V, part B of the EU Schengen Border Code (Reg. 2016/399/EU), the country does not seem to have in place a policy requiring its border authorities to communicate refusals of entry in writing, with the inclusion of reasoning regarding grounds for refusal. The country has also not created standardised forms to provide third-country nationals with specific indi­ cations as to how and within which deadline a remedy must be sought. Thus, the right to seek and obtains legal remedy against refusal of entry decisions, which is formally provided for under EU law, remains a purely virtual form of protection in Hungary. Although references to requirements to cooperate with Frontex appear in staff regulations and financial regulations, the form and extent of the actual coopera­ tion with the EBCG is not well defined in Hungarian law and police instructions.8 One of the few exceptional examples in this respect is represented by provisions which establish that Hungarian border police officers shall interact and cooperate with the Agency in the context of deportation by air (joint return operation). Prior to such operational cooperation, Hungarian authorities shall conduct a ‘risk analy­ sis,’ which is aimed at determining the number of escorts involved in deportation, in order to ensure a ‘professional, legal, and safe enforcement.’ The performance of the risk analysis and participation in Frontex joint operations is entrusted upon the Office for Immigration and Asylum – the Central Directorate for Foreign Law Enforcement, which has been replaced as of 1 July 2019. A person may submit a complaint to the Frontex Fundamental Rights Officer (FRO) if s/he believes that s/he is directly affected by the actions of staff involved in a Frontex activ­ ity, and s/he considers that one or more of her/his fundamental rights have been violated due to those actions. In order to forward the applicant’s personal data to the relevant authorities by the FRO, consent is required (Article 34 and 72 of Reg. 2016/1624/EU). However, these rules are not mentioned in prospectuses or police instructions in Hungary. This suggests that not only third-country nationals but also officials are prevented from knowing that a complaint may be submitted to Frontex where a person, whose fundamental rights are directly affected in joint operations, wishes to do so.9 Paragraph 290 of the Police Instructions specifies how the tasks of the passport controller as well as of the investigating officers shall be performed. A scrutiny of this provision reveals that security and surveillance logic prevails over the objective of guaranteeing adequate forms of legal or administrative protection to third-country national.10 There is no reference to legal remedies or information for passengers on how to submit complaints. Random screenings are prescribed for use involving unaccompanied minors. Thorough controls, including checks of the third-country

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nationals’ data in police records, are to be activated only in ‘extraordinary and unforeseen circumstances,’ i.e. when the entry of a foreigner might represent a real and direct threat to public order, internal security, public health, or international relations of the member states. In all other cases, ‘the third-country national must be subject to a thorough check on the basis of the Schengen Borders Code and the Schengen Handbook.’ Based on this check, the following decisions are possible: (a) admission in the country; (b) further checks in a separate venue (e.g. for per­ sons applying for international protection). Checks at a stand-alone location lasts until suspicious causes have been confirmed or excluded. Decisions should be taken within a maximum of six hours, and third-country nationals are supposed to be informed of this decision by means of a ‘Prospectus,’ translated into a foreign language. On the basis of such decisions, the foreigner can either be allowed or refused entry in the country. In the case of an SIS hit, authorities should proceed as specified in the relevant legislation and instructions, and undertake further pro­ cedures required by provisions on criminal or minor offense, alien policing, or asylum. Hungarian asylum law provides a specific procedure for international protec­ tion seekers at the state border (Article 71/A and 72 in the AsylA). If a thirdcountry national submits an application ‘before entering Hungary’11 – s/he does not have the right to stay in Hungary; instead, s/he would need to obtain per­ mission, as determined by special legislation. The asylum authority decides on the admissibility of the claim within eight days. If the claim is admissible, the immigration authority will decide on entry authorisation within four weeks of submission of the application. If the application is ‘not inadmissible,’ entry is permitted under the law on aliens and the asylum authority proceeds according to the general rules. A personal hearing is held by the court within the transit zone through a telecommunications network, and the applicant is accommodated in a transit zone container. The aforementioned transit zone is an area where foreigners arrive during the ‘crisis caused by mass immigration.’ If, before the end of the asylum procedure, the third-country national leaves this fenced and police-guarded area, and for instance returns to Serbia, the asylum procedure will be terminated. The only civil organisations that can enter the two transit zones (in Tompa and Röszke) are those that have contracts with the Office (i.e. the UNHCR, the Hungarian Helsinki Committee, the Hungarian Red Cross, and the Maltese Charity Service). Civilians are generally not authorised to enter the border fence area. The amend­ ment of the Penal Code has led to the distribution of booklets or other materi­ als informing applicants of their rights to be considered as support for illegal migration or as a form of smuggling of human beings. This type of policy led to a concerning situation of inaccessibility of remedies against possible abuses at Hungary’s southern border. The ECtHR has stated that keeping third-country nationals, and asylum seekers in particular, in the transit zone (for an indefinite period) constitutes a form of unlawful detention which violate Articles 3 and 5 of the ECHR.12

Hungary at the border of populism and asylum

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Menedék – Hungarian Association for Migrants together with and the Hungar­ ian Helsinki Committee passed a Joint Declaration on refugee rules and practices adopted by Hungarian authorities since September 2015. The declaration refers to the Hungarian Supreme Court’s Opinion of 10 December 2012, according to which Serbia is not a safe transit country for those seeking protection.13 However, the Hungarian Government Decree created a list of safe countries of origin and transit, which includes ‘the candidate countries to the EU, the member states of EU and EEA, Switzerland, Bosnia and Herzegovina, Kosovo, Canada, New Zealand, Australia and the states of USA without capital punishment.’14 Therefore, interna­ tional protection applicants who come from or have transited through such coun­ tries must prove that it is not safe for them to be sent back there. Failure to prove so results in their applications being declared inadmissible (AsylA, Article 9). It is a matter of constitutional concern that asylum authorities are exempted from conducting individual assessments of their claims (Article 2 in AsylA) when international protection applicants come from one of the countries included in the list of the Hungarian government, and that in such cases the burden of proof is on the applicants. The procedural rules are even stricter when ‘immigration crisis for mass inva­ sion measures’ are introduced (Article 80H-K in AsylA). Asylum applications can only be filed in person and in the transit zone, and applicants cannot enter the country until a decision is made, except when the applicant is below the age of 14. An appeal against inadmissibility decisions or a refusal in an accelerated procedure may be submitted to the court within three days. In the meantime, the applicant is forced to remain in the transit zone. If s/he leaves the transit zone before the decision (to Serbia or Croatia), the procedure will be terminated, and there will be no remedy against the decision. Thus, the applicant cannot formally enter the country, even though the transit zone also belongs to the Hungarian jurisdiction and to territory of the state. The accelerated asylum procedure applies to a variety of cases, including cases which are a priori considered to be inadmissible or unfounded (e.g. when the applicant comes from a country considered as safe); when the applicant has entered the territory unlawfully; or when he or she has illegally extended his/ her stay and has not submitted a request for protection within a reasonable time, and has not justified the delay. If the request for protection is declared inadmis­ sible or unfounded in an accelerated procedure, the decision may be reviewed upon request within seven days at the administrative court without any suspensive effect (Article 53 in AsylA). Deprivation of personal liberty in the form of asylum detention may be ordered for many reasons. These reasons are so numerous and broad that they appear in contravention of Hungary’s obligations under Article 5 of the ECHR. They may be ordered after a third-country national has been escorted to the transit zone in order to prevent his/her entry in the country, but also to clarify the identity of the applicant or, if possible, to secure the expulsion that has been already ordered, to order custody in an airport procedure or, even more generally, to defend the national security or public order. Decisions on asylum detention shall be enforced

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immediately. Within 72 hours of detention, a court review shall be provided. However, it seems that the purpose of the court review is mainly to decide on prolongation of detention of up to six months. This term is reduced when the order concerns a member of family with a minor. In this case, detention can be extended up to 30 days. The detention order adopted by the asylum authority is reviewed in a single, one-judge procedure, in the context of which the hearing of the per­ son concerned by the order is not obligatory. Detention can be carried out in any facility considered ‘appropriate’ by the authority issuing the order. The applicant must be always available to appear before the authority responsible to assess his/ her claim. The asylum authority may order a regular appearance, and decide upon the deposit of a bail, or the assignment to a designated place for residence/accom­ modation. A different form of detention is the so called ‘Alien police detention,’ which constitutes part of the wider strategy adopted by the government to tackle irregular migration. Asylum authorities’ decisions concerning inter alia reception conditions may be subject to judicial review by a single judge. Remedies sought against asy­ lum authorities’ decisions do not have a suspending effect.15 This is a concerning provision, given that assistance to applicants (e.g. accommodations, meals) are available during the asylum procedure and up to 30 days after the recognition, while basic medical care is supplied for up to six months. During asylum proce­ dures, applicants are instead not entitled to receive psychiatric or psychological assistance. This means that, instead of being rehabilitated, tortured people who seek protection in Hungary are destined to systematic and prolonged detention in barracks surrounded by barbed wire. Unfortunately, the Cordelia Foundation,16 an NGO established in 1996 with the aim to assist torture survivors and severely traumatised asylum seekers, refugees, and their family members arriving in Hun­ gary, does not currently benefit from any state subsidies. Since 2017, provision of psychiatric, psychotherapeutic, or psychological treatment and psycho-social counselling by NGOs has only been possible thanks to support from organisations such as the UNHCR and the Open Society Institute. The main question that asylum authorities have to address during the asylum procedures (Article 33 in AsylA) is whether a third-country national seeking pro­ tection has any legal entitlement to reside in Hungary, whether he or she can be removed, and whether the removal would lead to a violation of the non-refoulement principle. If the result of the application is that the asylum seeker is ‘remova­ ble,’ the forced execution of his/her removal and a ban of entry and residence may also be ordered. A decision to reject a claim for international protection can be reviewed by the administrative court. The review request shall be submitted within eight days from refusal, and it has no suspensive effect with some excep­ tions. In the meantime, a removal order may be issued. The removal is enacted based on an expulsion order that can be issued by either the alien police or the asylum authority, and transfers can be arranged under readmission agreements. Asylum authorities may also order asylum detention for a third-country national who has not submitted an asylum claim in Hungary but who is eligible for return on the basis of the Dublin Regulation. In such cases, an order for transfer may

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be challenged within three days before the administrative court. The request for review must be submitted personally to the asylum authority. When asylum is instead granted, the status of refugee in Hungary only consists of an entitlement to reside in the country and benefit from protection against refoulement, expulsion, and extradition.

3.4 Right to formal remedies only The Universal Declaration of Human Rights (Article 8) states that ‘[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’ The right to remedy is also recognised in the International Covenant on Civil and Political Rights (Article 2(3)) and in the EU Charter of Fundamental Rights (Article 47), which provides for a right to an effective remedy. The European Court of Human Rights has stated that individuals must ‘be able to appeal to the courts against any decision, act, or omission where they consider that their interests or their comments have not been given sufficient weight in the deci­ sion-making process’ (Article 13 of the ECHR). The ECtHR requires a domestic remedy to be available to deal with the substance of an ‘arguable complaint’ under the Convention. Article 13 does not require a domestic remedy in respect of any supposed grievance, as the claim of a violation must be an arguable one. The question of whether the claim is arguable should be determined in the light of the particular facts and the nature of the legal issue or issues raised. Likewise, the domestic remedy should be able to grant appropriate relief (Kuijer 2014, p. 20). The New York Declaration for Refugees and Migrants includes guaran­ tees for both refugees and migrants.17 Based on the existing body of relevant international and regional law and related jurisprudence, it is safe to claim that the right to an effective remedy con­ stitutes a human and fundamental right which shall be ensured to third-country nationals (migrants and asylum seekers), regardless of their legal status. Such a right consists of the following elements: a) access to a court and processing of a case within a reasonable time; b) access to reasoning of the decision, which must be issued in writing, in a language that the applicant can understand, and which should have a suspensive effect; and c) preventive or compensatory competence of the reviewing authority (cassation or reformative power over the challenged decision). Can any of these elements be detected in the remedies provided to migrants and asylum seekers by the Hungarian legal system? The Code of Public Administrative Procedure (Act CL of 2016 as the newest legislative generation on the public administration) provides for numerous pro­ cedural guarantees to individuals, including the right of non-Hungarian native speakers to use their own language in proceedings, the right to have access to and review the case file, the right to request a provisional measure to reduce or pre­ vent damage, and the right to claim judicial review of an administrative decision. This Code (and the protection it guarantees against abuses committed by public authorities) does not apply, however, to asylum and alien policing procedures, nor

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to decisions concerning entry and residence of third-country nationals in Hungary (Article 8). These matters are instead covered by the AsylA, under which: • Access to the case file is granted only in the presence of an authorisation given by the asylum authorities. When accessing the file, applicants or their legal representatives may make a copy and extract. The copy and the extract shall be certified by the asylum authority upon request (Article 32/V). Asy­ lum authorities are entitled to refuse access to the case file containing ‘secu­ rity information’. Asylum applicants requesting access to the case file may at that point complaint against the asylum authorities’ decision to refuse access. The complaint must be lodged within fifteen days from the date when the applicant becomes aware of the decision to refuse access. Complaint should be received no later than 45 days from the date of communication of the decision, i.e. posting to a changed or interim address (Article 32/S). Clearly, these rules render difficult the appeal for applicants who are not established in Hungary, but who happen to move from one shelter (place of residence) to another; • The administrative decision of asylum authorities within the Immigration and Asylum Office (IAO) may be reviewed only by the administrative court. In case of negative decisions, the appeal does not have suspensive effect (with exception for ‘illegally entered applicant, if he unlawfully delayed’ and ‘applicant from a safe county’ since 2018) and the appeal shall be personally lodged within three or eight days from the issuance of the decision to deny recognition of the international protection status (Article 35/B and 53 §); • An asylum seeker may ask to communicate in writing or orally with Hun­ garian asylum authorities in his or her own native language, or in another language she or he understands. However, the authority decision must be communicated in writing only in Hungarian (Article 36); • Legal assistance must be requested. It shall be free of charge, but the appli­ cant must prove she or he is in need of such assistance and cannot cover the related costs at his or her own expense. Under the Free Legal Aid Act, a per­ son seeking asylum is considered a person eligible for legal assistance only when he or she cannot cover the costs through his or her own means. The applicant must also accept the free legal assistance provided by a registered NGO dealing with legal protection (Article 37[3]). • Legal counselling by the applicant’s attorney and a representative of the UNHCR may occur at the personal hearing of the applicant. They shall have access to the documents of the proceedings and are allowed to make copies of them (Article 37[4]). Any procedural guarantee provided by the law will only apply as from the moment when a request for international protection to the asylum authority is made, or with the registration of the application by the asylum authority (Article 35). Hungarian law foresees a few remedies in cases concerning violations of a human right (e.g. prohibition of torture and degrading or discriminating treatment). For

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example, a foreigner in a detention centre may complain to the head of the insti­ tution if he or she cannot use his or her mother tongue or does not receive infor­ mation on his or her legal status. According to the Police Act, the complaint is assessed by the head of the police unit (county captain). Complaints can, however, also be submitted by third-country nationals to the Public Prosecutor’s Office, the Equal Treatment Authority, the Independent Police Complaint Committee in the Parliament, or to the Ombudsman if his or her fundamental right is violated during his or her stay in Hungary or during the asylum proceedings. Their common fea­ ture is that none of the complaints/applications has a suspensive effect, and there is no compensation for the infringement (Tóth 2016, p. 356). Table 3.5 gives an overview of the available remedies as defined in different legal sources. The system is incoherent, and applicants and family members who are unfamiliar with Hungarian law or language would have to choose from the par­ allel remedies. There is no institutional cooperation between oversight authorities, Table 3.5 Remedy mechanisms in border issues Responsible authority Reason

(Entitlement for) remedy

Legal basis

Police or Immigration Refusal of entry or and Asylum Office return in absence of (IAO) as alien entry and residence policing authority Refusal on the basis of the Schengen Border Code [Annex V SBC is completed and given to the TCN and his/her name is entered into SIS alert system for refused entry] Returns or transfer on the grounds of bilateral readmission agreement Expulsion order (where removal within 72 hours – or 8 days if arrival by means of air transport – is not possible) Asylum seekers

No appeal for refusal/ sending back from the border Refusal of entry pursuant to SBC (and notified as per Annex V SBC) is subject to right of appeal (a judicial review) without suspensive effect. However, in practice, this is not known by concerned individuals nor the authorities Complaint against transfer on the ground of bilateral readmission agreement within 24 hours (no suspensive effect) Appeal and judicial review against expulsion order (submission within 8 days and decision

ThirdA, ThirdD, IRMD, bilateral readmission agreements BordA AsylA

(Continued)

Table 3.5 (Continued) Responsible authority Reason

Independent Police Complaint Body in the Parliament

(Severe) violation of the provisions in Police Act by law-enforcement authorities

Police

Violation of the rules in the Act on Police

Police

Decision imposing penalties on individuals for violation of the rules in the Act on Minor Offences

(Entitlement for) remedy within 15 days, no suspensive effect), transfer and deportation is organised as determined in bilateral readmission agreement Where non­ refoulement precludes refusal of entry and the asylum seeker is granted entry to the transit zone for asylum procedure: remedy only inside the asylum procedure Optional complaint within 20 days (no suspensive effect); Procedure within 90 days and determination of violation, proposal to the HQ of the Police to remedy within 30 days, judicial revision on its decision (no suspensive effect) Complaint within 30 days; Director of the proceeding police unit investigates the case within 30 days, appeal and judicial review (no suspensive effect) Complaint to be submitted within 3–8 days; Director of county police or public prosecutor office may modify the ordered measure within 3–8 days or forward it to the local court

Legal basis

PolA, OmbA

PolA, PubA

MinoA

Responsible authority Reason

(Entitlement for) remedy

Legal basis

Governmental Office

Nomination of an attorney-at-law, interpreter to the applicant TCN for a fixed tariff that is covered by the GO

AssisA

Equal Treatment Authority

Ombudsman

Public Prosecutor’s Office

All authorities

Request for free legal assistance at appeal/ judicial review if a refused international protection or expulsion order (no suspensive effect) Violation of equal treatment by law enforcement

Complaint to Equal Treatment Authority within 3–12 months; Imposing fine and publication of the decision (no suspensive effect) after investigation within 45–75 days Complaint to (Imminent danger Ombudsman within of) violation of 12 months; fundamental right by law enforcement Investigation and proposal to the (e.g. right to responsible/higher remedy, right to fair authority for remedy, procedure, right to compensation be represented) or change the maladministration (no suspensive effect) (Unlawful) restriction Complaint for unlawful restriction of (free) movement of (free) movement and liberty by and liberty to Public law-enforcement Prosecutor’s Office authorities (legality review); Investigation and control in situ (detention of police and asylum procedure) with no suspensive effect Directly affected Proposal for action persons may or for amending submit a complaint legislation due to or a petition of abuse, dysfunction, public interest to a or misuse of power competent public body; Competent public body or authority must respond within 30 days

EquA

OmbA

ProsA

ProsO

PeticA

(Continued)

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Table 3.5 (Continued) Responsible authority Reason

(Entitlement for) remedy

Legal basis

Court

Non-litigation procedure; investigation of legality of decision; Court to decide on prolongation or annulment of the decision; Litigation upon request and judge may change the decision of the police;

PubA, CivA ThirdA, AsylA MinoA Civil Code Penal Code

Judicial review of – denial of international protection – expulsion and detention order Judicial review of detention or fine imposed for minor offence violating alien policing rules Lawsuit for violation of privacy Trial for unlawful crossing the border through climbing/ damaging the fence

Legend: AssisA = Act LXXX of 2003 on legal assistance service (providing free legal aid for persons in need) AsylA = Act LXXX of 2007 on asylum BordA = Act LXXXIX of 2007 on the state borders CivA = Act III of 1952 on civil (and administrative) judicial procedures Civil Code of Hungary = Act V of 2013 EquA = Act CXXV of 2003 on equal treatment IRMD = Ministerial Decree No.26 of 2007, 31 May on deportation proceedings OmbA = Act CXI of 2011 on the ombudsman and its procedure Penal Code = Act C of 2012 on Criminal Offences PeticA = Act CLV of 2013 on petitions and public proposals PolA = Act XXXIV of 1994 on the Police ProsA = Act CLXIII of 2011 on public prosecutors ProsO = Order issued by the Chief Public Prosecutor No.20 of 2014, 23 Dec on legal protection in deprivation of personal freedom PubA = Act CXL of 2004 on public administration procedure, from 2018 the Act CL of 2016 ThirdA = Act II of 2007 on entry and residence of TCN in Hungary ThirdD = Government Decree No.114 of 2007, 24 May on procedural rules of the ThirdA MinoA = Act II of 2012 on minor offences

particularly those responsible for child protection, prevention of non-refoulement and for the actual protection and rehabilitation of victims. More generally, asylum seekers have a lower legal protection standard, since the rules on border crossing, alien policing, asylum, and removal have been separated from the general provi­ sions in the administrative procedure.

3.5 Conclusions The increase in the arrival of migrants and asylum seekers has been used by the Hungarian government to strengthen its own political acceptance. For years, the

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issue of refugees and migratory pressure has been misrepresented a security threat in order to create fear among the public. Migration is now perceived as one of the main threats to the community in Hungary, regardless of actual numbers of third-country nationals’ entries into the country. This strategy has allowed diver­ sion of public opinion from issues such as mass emigration of nationals, massive corruption, and worsening of public services. According to the government’s antimigration campaign, Hungary protects Europe’s undefended borders. In order to do so, it uses EU funds without following public procurement rules and increases law enforcement headcount and budget. Exceptional emergency measures were introduced in 2015–2017, contrary to the TFEU’s solidarity and responsibility rules, the obligation to ensure minimum human rights standards to migrants and asylum seekers, and the idea of a European Union governed by common basic values. Through these measures, the government has moved from populism to racism and from asylum to the ‘criminal law against enemies’ eroding the rule of law (Nagy 2006). Strict admission and reception conditions of protection seekers and measures aimed at deterring migrants’ entry costs hundreds of millions of EUR. They will only help to increase smugglers’ income, which in turn will be used to bribe Hun­ garian border authorities and officials. Treasury expenditure for border security has constantly increased since 2015. In 2017 alone, the Ministry of the Interior set the expenditures related to the objective of tackling ‘extraordinary migration pres­ sure’ to a minimum of 503 million EUR.18 Regardless of the additional resources needed, the Ministry of the Interior recently withdrew calls for proposals that would be financed from the EU Home Affairs Funds. These also included the call for proposals on legal assistance for refugees and asylum applicants at all stages of the proceedings, involving lawyers and NGOs in the free legal aid.19 The politics of externalisation and securitisation are taking place instead of reception and relocation of refugees. The physical presence of protection seekers is separated from their legal entry. This separation is based on the border fence, the transit zone for apprehended migrants, informal pushbacks to Serbia, refus­ als of entry, and the reduction of procedural guarantees. Thus, the right to a fair procedure, effective remedies, and social security are violated, and those in need of protection at the border do not even have access to the asylum procedure. There are no decent reception conditions and a lack of interpreters, and no access to legal aid. It is therefore necessary to refer to universal and regional binding rules (e.g. Schengen Border Code, ECHR and UN human rights on refugees, children, and stateless persons). In order to protect the rights of migrants, the representa­ tives of the CoE, the UN, and EU, and the ombudsman have examined the south­ ern borders on several occasions. A number of concerns have been raised by these monitoring bodies, such as the issues raised by FRA in November 2017:20 ‘Migrant smuggling, sometimes involving inhumane travel conditions, was on the rise in Hungary. The authorities detected five major migrant smug­ gling networks. Some members of local communities expressed fear of migrants and xenophobic attitudes, although most citizens have never met

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Judit Tóth asylum seekers or irregular migrants. No improvement could be reported on the situation in the transit zones at Hungary’s southern borders (Röszke and Tompa). Police continued to escort all irregular migrants apprehended in the country, without fingerprinting or registering them and not allowing them to go anywhere else but back to Serbia. In November 2017 authorities in Hungary apprehended 1,114 people (compared to 682 in October) trying to cross the border from Serbia and Croatia, the National Headquarters of the Police reported. Police violence against people attempting to cross or hav­ ing crossed the border fence continued, as reported by the NGO MigSzol. UNHCR registered several complaints in Hungary regarding the lack of proper translation and interpretation services in the transit zones. Similarly, the Hungarian Helsinki Committee reported that authorities had discharged many interpreters and, as a result, the lack of quality interpretation might undermine the impartiality and effectiveness of the asylum procedures. The rejected asylum seekers subject to a return decision stayed either in the transit zones or in a closed detention centre pending their removal.’

Concerns and refugee complaints are not effectively handled as long as national priority, unilateralism, and externalisation dominate instead of shared European solutions and standards. The transit zone along the southern border separates asy­ lum seekers, and the police escort them from the country to the gate and forcibly return them to Serbia, which has been classified as a safe transit country. Such approaches build on the principle of extraterritoriality and externalisation of refu­ gee issues, even though the essence of portable justice and portable responsibility would be a guarantee of a common European minima and solidarity. Hungary is an example of bordering and (un)justness in a perverse dualism.

Notes 1 See the homepage of the Immigration and Asylum Office, www.bmbah.hu/index. php?option=com_k2&view=item&layout=item&id=1128&Itemid=1717&lang=en. 2 Nemzeti Jogszabálytár, www.njt.hu/njt.php?translated. 3 See Ministry of the Interior – Immigration and Asylum Office, www.bmbah.hu/index. php?option=com_k2&view=item&layout=item&id=177&Itemid=1232&lang=hu; Central Statistical Office, www.ksh.hu/docs/hun/xstadat/xstadat_evkozi/e_wnvn001. html; Police Headquarter, www.police.hu/sites/default/files/Hatarrendeszet%20HK%20 2017.%2011.pdf; Hungarian Helsinki Committee, www.helsinki.hu/wp-content/uploads/ Magyar-menekultugy-a-szamok-tukreben-2017-oktober-1.pdf; Eurostat, https://ec.euro pa.eu/eurostat/statistics-explained/index.php?title=Enforcement_of_immigration_ legislation_statistics and http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_ eirfs&lang=en. 4 HQ of the Police, www.police.hu/sites/default/files/HatarrendeszetSK%202019_05.pdf. 5 Ibid. 6 Kerítésharcban a kormány, https://adtplus.arcanum.hu/hu/view/Nepszava_2016_05/. 7 S. Anthony, ‘OECD Survey Depicts Rising Discontent and Fear’, Budapest Business Journal, 17 November 2017, https://bbj.hu/analysis/oecd-survey-depicts-rising-discontent­ and-fear_141676.

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8 For instance, HQ of the Police Instruction No. 15 of 2017, March 24 on keeping inter­ national relations, Minister of the Interior’s Instruction No. 10 of 2015, June 8 on participation in agencies of the EU relating to the member state actions. 9 For instance, HQ of the Police Instruction No. 29 of 2016, November 10 on execution of foreigners’ deportation by air (amended by the Instruction No. 27 of 2019, June 28). 10 HQ of the Police Instruction on Border Controlling Tasks No. 24 of 2015, October 15 as modified by No. 17 of 2017, April 6 and No. 27 of 2019, June 28. 11 At the international border crossing point or ‘in the territory of Hungary within the 8-km band, within the boundary of the Schengen Borders Code (Article 2 (2) of Reg.), after s/he has been apprehended near the fence after passing, inside the transit zone’. 12 ECtHR, Ilias and Ahmed v Hungary, Application No. 47287/15, 14 March 2017. 13 www.helsinki.hu/nyilatkozat-uj-menekultugyi-szabalyozas-es-gyakorlat-botranyarol/. 14 Government Decree No. 191 of 2015, 21 July. 15 The restrictive conditions for protection seekers are obvious in light of the limited entry to the border zone through the gates. It means that persons standing in a queue in front of the gates cannot enjoy any assistance or accommodation during the waiting period of some months while the daily quota of entry Hungary from 50 was reduced to two applicants; see M. Szabó, ‘Migráns az égből’, Magyar Nemzet, 26 January 2018, https://magyarnemzet.hu/archivum/magyar-nemzet-magazin-ajanlo/migrans-az­ egbol-3864781/. 16 See Cordelia Foundation for the Rehabilitation of Torture Victims, https://cordelia.hu/ en/ongoing-projects/. 17 Draft resolution referred to the high-level plenary meeting on addressing large move­ ments of refugees and migrants by the General Assembly at its seventieth session, point (i) of Chapter III, 13 September 2016, A/71/L.1. 18 See the Governmental Resolution No.1863 29 November 2017 and Nemzetgazdasági Minisztérium tájékoztatója az államháztartás központi alrendszerének 2017 október végi helyzetéről, Budapest, November 2017. 19 G. Kardos, ‘A migránskrízisről a tények tükrében’, Mandiner Press, 25 January 2018, https://mandiner.hu/cikk/20180125_kardos_gabor_a_migranskrizisrol_a_tenyek_ tukreben. 20 See FRA’s monthly data collection on the migration situation in the EU for the period of 1–30 November 2017, https://fra.europa.eu/sites/default/files/fra_uploads/ fra-2017-december-monthly-migration-report-highlights_en.pdf.

References Anthony, S. (2017), ‘OECD Survey Depicts Rising Discontent and Fear”, Budapest Business Journal, 17 November, https://bbj.hu/analysis/oecd-survey-depicts-rising-dis content-and-fear_141676. Eurostat, ‘Enforcement of Immigration Legislation Statistics’, http://ec.europa.eu/eurostat/ statistics-explained/index.php/Statistics_on_enforcement_of_immigration_legislation. FRA (2017), ‘Monthly Data Collection’, December. This report covers the period 1–30 November 2017, http://fra.europa.eu/en/theme/asylum-migration-borders/overviews/ december-2017. Janecsko, K. (2016), ‘Ezer fölé kúszott a kerítésmászásért elítélt migránsok száma’, Index, 8 February, https://index.hu/belfold/2016/02/08/atlepte_az_ezret_a_keritesmasza sert_elitelt_migransok_szama/. Kovács-Grád, M. (2018), ‘Dehogyis fogad be menekülteket a kormány’, 24.hu, 18 January, https://24.hu/kozelet/2018/01/18/dehogyis-fogad-be-menekulteket-a-kormany/.

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Kuijer, M. (2014), ‘Effective Remedies as a Fundamental Right: Seminar on Human Rights and Access to Justice in the EU’, 28–29 April, Barcelona Escuela Judicial Española & European Judicial Training Network. Lazaridis, G. & Wadia, K. (eds.) (2015), The Securitisation of Migration in the EU: Debates Since 9/11, The European Union in International Affairs, London: Palgrave Macmillan. ‘Magyarországra érkezett menedékkérők és a nemzetközi védelemben részesülők száma’, www.ksh.hu/docs/hun/xstadat/xstadat_evkozi/e_wnvn001.html. Mészáros, G. (2017), ‘Alkotmány, válságban – a különleges helyzetek kezelésének dimen­ ziói az Alaptörvény elfogadásától napjainkig’, JURA, Vol. 2, pp. 118–133. Nagy, F. (2006), ‘Über das Feindstrafrecht als die Erosion des Rechsstaatlichen Strafre­ chts’, Acta Juridica et Politica, Vol. 17, pp. 1–21. Nagy, B. (2016), ‘Hungarian Asylum Law and Policy in 2015–2016: Securitization Instead of Loyal Cooperation’, German Law Journal, Vol. 17. No. 6, November. ‘Országos Rendőrfőkapitányság – Határrendészeti Helyzetkép’, 2017, www.police.hu/ sites/default/files/Hatarrendeszet%20HK%202017.%2011.pdf. Poushter, J. & Manevich, D. (2017), Globally, People Point to ISIS and Climate Change as Leading Security Threats – Concern About Cyberattacks, World Economy also Wide­ spread, Washington, DC: Pew Research Center, 1 August. Robertson, R. (1992), Globalization: Social Theory and Global Culture, London: Sage Publications. Tóth, J. (2015), ‘. . . a hazájukat elhagyni kényszerülők emberi jogainak és alapvető szabadságainak védelmére’, Fundamentum, No. 4, pp. 61–66. Tóth, J. (2016), Migration Law in Hungary, 2nd revised edition, Kluwer Law International. Tóth, J. (2017), ‘Mi fán terem a (kényszer)betelepítés?’ Magyar Jogi Nyelv, No. 1, pp. 14–20.

4 Access to effective remedies for foreigners affected by decisions, actions, and inactions of the

Polish Border Guard1

Maja Łysienia 4.1 Introduction In 2017, Poland was entered by almost 16.5 million third-country nationals, with neighbouring Ukraine accounting for over ten million. More than 72,000 deci­ sions on a refusal of entry were issued, which represents a decline compared to the previous year (more than 118,000 refusals were reported then). Moreover, in 2017, over 23,300 third-country nationals were transferred from Poland to another country compared to 19,600 foreigners in 2016 (Komenda Główna Straży Granic­ znej 2018).2 All those migration flows are dealt with by one Polish authority: the Border Guard (Straż Graniczna). As defined in Polish law, the Border Guard is a uniformed and armed formation responsible for protection of the state border, border traffic control, and prevention and counteraction of illegal migration. In practice, officers of the Border Guard have extensive competences, starting with border management, deciding on for­ eigners’ entry to Poland through the control of the legality of their stay, managing the detention centres for foreigners, and ending with issuing return decisions and enforcing them. A third-country national’s stay in Poland starts and ends up with the Border Guard, whether it is a legal stay or not. Entrusting such extensive competences in the area particularly prone to human rights violations to only one administrative authority that is a subordinate of the Ministry of Interior and Administration (Minister Spraw Wewnętrznych i Admin­ istracji) makes the access to effective remedies for foreigners affected by deci­ sions, actions, and inactions of the Border Guard even more indispensable. In particular, remedies before a court or tribunal should be guaranteed in accordance with Article 47 of the EU Charter of Fundamental Rights (EUCFR). In this chapter, the remedies available to foreigners in Poland are analysed firstly as regards decisions issued by the Border Guard (concerning a refusal of entry and return) and secondly as regards actions and inactions of the Bor­ der Guard’s officers (such as e.g. mistreatment, unlawful conduct, or displaying disproportionate use of force). At first glance, the right to appeal against the above-mentioned decisions as well as complaint mechanisms and judicial rem­ edies in regard to officers’ actions and inactions seem well-developed and settled in Polish law. However, in practice those remedies are hardly accessible. This

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chapter aims at providing the insight into both the legal framework and practice regarding appeals and complaints available in Poland to foreigners affected by decisions, actions, and inactions of the Border Guard, with a particular focus on their compliance with the right to an effective remedy enshrined in the EUCFR and the Convention for the Protection of Human Rights and Fundamental Free­ doms (ECHR).

4.2 Right to appeal 4.2.1 Decision on a refusal of entry 4.2.1.1 Procedure Decisions on a refusal of entry are issued by the Chief of the Border Guard’s local or regional unit. They can be appealed: firstly, to the administrative author­ ity of second instance – the Chief Commander of the Border Guard (Komendant Główny Straży Granicznej), and afterwards to the administrative courts. The first appeal is free of charge and has to be lodged within 14 calendar days. It does not entail a suspensive effect. The body of second instance can uphold a decision or repeal it and decide on the substance of the matter or submit it to reconsideration by a body of first instance. If a third-country national is unsatisfied with a decision of the Chief Com­ mander of the Border Guard, within 30 days he or she is entitled to lodge a further appeal to the Provincial Administrative Court in Warsaw (Wojewódzki Sąd Admin­ istracyjny w Warszawie, PAC, in Warsaw). As a rule, only points of law can be adjudicated at this stage. An appeal will be considered if a foreigner pays an offi­ cial fixed fee (300 PLN). Indigent appellants can be released from this obligation by the court. When the court decides to repeal a decision of the body of second instance (and occasionally also a first-instance decision), the case is forwarded to be reconsidered by the administrative authorities again. Foreigners are entitled to lodge once more a further appeal to the court against a new administrative deci­ sion issued after the court proceedings. Moreover, a foreigner is entitled to lodge within 30 days a cassation appeal against the PAC’s judgment to the Supreme Administrative Court in Warsaw (Naczelny Sąd Administracyjny, SAC). It has to be prepared by an attorney (radca prawny or adwokat), as it can be based only on strictly specified violations of law. If the court dismisses a cassation appeal, there is no other remedy available. 4.2.1.2 Accessibility of remedies It may seem that in Poland the right to appeal against decisions on a refusal of entry is well established, as it is offering multiple chances for a foreigner’s case to be considered by both administrative bodies and the judiciary. In practice, though, third-country nationals face numerous obstacles in accessing those remedies, both of a legal and practical nature.

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First of all, decisions on a refusal of entry are enforced immediately and an appeal entails no suspensive effect. Even if a foreigner decides to appeal, he or she must wait for an outcome of the appeal proceedings abroad. Meanwhile, administrative and court proceedings may last months or even years. While a nonsuspensive remedy in proceedings regarding a refusal of entry is in compliance with Article 14(3) of the Schengen Borders Code, it cannot be considered as an effective remedy under Article 13 of the ECHR when a foreigner who was refused entry has an arguable claim that after his removal he would face a treatment con­ trary to the Convention, in particular Article 3. The European Court of Human Rights (ECtHR) reiterated that, to be considered an effective remedy, an appeal against a decision on a refusal of entry should entail automatic suspensive effect.3 A foreigner refused entry to Poland has to appoint a proxy for a postal delivery if he does not have another proxy based in Poland (i.e. an attorney, a representa­ tive from a NGO) and he or she is not acting through a Polish consul. If he or she presents in appeal proceedings only a foreign address, a decision and other letters issued during the appeal procedure will not be sent to him or her4 but will be left in a case file with the presumption of delivery. Not knowing that a secondinstance decision was issued, a foreigner might not be able to lodge a further appeal in time. Second, foreigners face obstacles resulting from their lack of knowledge of the Polish language. The information about a right to appeal is placed in deci­ sions on a refusal of entry, but only in Polish. Under established jurisprudence of the administrative courts, the lack of knowledge of the Polish language, and consequently the lack of understanding of a decision and instructions placed in it is not a reason justifying late lodging of an appeal.5 Foreigners, just like Poles, are expected to take care of their own interests with a due diligence, so in case of the lack of an understanding of a decision they should immediately find a translator or a proxy.6 However, under the Polish law, the Border Guard in particular circumstances should inform a foreigner in writing in an understandable language about a proce­ dure as well as his or her rights and obligations. In practice, foreigners receiving a decision on a refusal of entry are additionally given the information in writing in their national language about time limits, procedure, and legal assistance in the appeal proceedings.7 Although this is not always the case, especially at the border crossing point in Terespol (see section 4.2.1.3). Moreover, receiving com­ prehensive information in this regard may be particularly problematic in case of languages rarely used on the Polish border. Furthermore, all appeals have to be written in Polish, and any evidence in for­ eign language has to be accompanied with a sworn translation to Polish. Mean­ while, finding dependable translators during a stay abroad may be difficult and costly. Accessibility of a remedy to entry refusal decisions is also hindered by a lim­ ited possibility of obtaining free legal assistance in border cases. Since 2016, Polish law provides for a public system of free legal aid, but it has limited per­ sonal scope and requires a foreigner’s presence in Poland. However, in court

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proceedings, the law provides for free legal aid for indigent appellants. It is granted upon a foreigner’s request that has to be lodged on an official form, which is written and should be filled out in Polish. In consequence, an indigent third-country national wishing to appeal against a decision on a refusal of entry has to rely on NGOs that are providing linguistic and legal assistance to for­ eigners free of charge. Currently, though, the nongovernmental sector assisting foreigners in Poland is in crisis as a result of the government policy hindering or precluding NGOs from receiving the EU funding.8 In consequence, some organisations (e.g. the Helsinki Foundation for Human Rights [HFHR]), had to limit their support for foreigners (FRA 2019, p. 12; Klaus, Ostaszewska-Żuk & Szczepanik 2017, pp. 15–16). Lastly, officers of the Border Guard conducting a second-line check usually make only a short (up to three sentences) formal note regarding declared reasons of entry. They do not prepare a detailed protocol. The Commissioner for Human Rights considers this practice as limiting the efficiency of appeals against deci­ sions on a refusal of entry. In practice, Border Guards’ notes are so scarce that neither a foreigner nor an officer of the Border Guard can prove in the appeal procedure what was really said during the border check. Moreover, the Commis­ sioner found – during the monitoring he conducted in 2016 – that not all reasons of entry declared by the foreigners were written down by the Border Guard in the notes (Commissioner for Human Rights 2018a). According to Polish law, the Border Guard can exceptionally limit the border control to checking documents and not conduct an interview. However, it is allowed only when the circumstances of a case indicate without doubt that a foreigner does not fulfil all entry conditions. According to the recent judgments of the SAC,9 the Border Guard has to conduct at least a basic inquiry in order to conclude that there are no such doubts. This ‘inquiry’ should be documented by a protocol. Despite that the case-law in this regard seems uniform and well established, at least in cases regarding refusals of entry to foreigners declaring during a border check that they want to seek asylum (Białas, Górczyńska & Witko 2019, p. 35), the Ministry of Interior and Admin­ istration announced that the current practice of the Border Guard will not change (Commissioner for Human Rights 2018b). All those impediments hinder foreigners’ access to a remedy in proceedings regarding a refusal of entry to a great extent. The statistics may confirm foreign­ ers’ difficulties in this regard. In the period from January to June 2018, appeals from a decision on a refusal of entry concerning only 172 persons were lodged (in comparison to 38,305 foreigners who received such decisions then), and the Chief Commander of the Border Guard decided on appeals concerning 132 per­ sons. None of the appeals was considered justified.10 The courts are approached in those cases even more rarely. In 2017, only 34 further appeals on the Border Guard’s decisions were registered in the PAC in Warsaw.11 In the period from January to June 2018, the court received 20 further appeals in this regard.12 In recent years, the PAC in Warsaw adjudicated 59 cases concerning a refusal of entry; in 33 cases a cassation appeal was lodged (Białas, Górczyńska & Witko 2019, p. 31).

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The situation at the border crossing point in Terespol shows even more that lodging appeals in the proceedings regarding a refusal of entry is impeded in practice. 4.2.1.3 Case study – border crossing point in Terespol The crossing point on Polish-Belarusian border in Terespol is one of the main border points in Poland. It is especially popular amongst foreigners who aim to apply for asylum.13 By law, if a foreigner asks for asylum on the border, his or her application should be admitted by the Border Guard and forwarded to the Head of the Office for Foreigners, who is responsible for making decisions in asylum cases. When a foreigner applies for asylum, a decision on a refusal of entry cannot be issued. In practice, though, for many years, asylum seekers face pushbacks at the border crossing point in Terespol (Chrzanowska et al. 2016, p. 35). The situ­ ation has worsened since 2015–2016 (Białas, Górczyńska & Witko 2019, p. 3; Rusiłowicz, Ostaszewska-Żuk & Łysienia 2018, p. 14). Despite repeating and incontestable declarations of the intention to apply for international protection in Poland, some asylum seekers are refused entry in Terespol. The recent reports concerning the situation at this border crossing point14 offer some interesting insight into the Border Guard’s practice concerning decisions on a refusal of entry and the access to appeal proceedings. Firstly, after issuance of a decision concerning a refusal of entry, foreigners were asked to sign it (as well as the instruction about appeal proceedings) as a confirmation of the delivery of these documents. As reported by the NGOs, for­ eigners were not informed what they were signing (the documents were mostly written in Polish) (Kozliuk et al. 2017, p. 12), even though they asked for a trans­ lation (Chrzanowska et al. 2016, p. 78). Some of them received faulty information about the content of the documents. As a result, some of foreigners were not aware that a decision on a refusal of entry had been issued and that they could appeal it (Chrzanowska et al. 2016, p. 78). Moreover, foreigners did not receive copies of a decision and instruction,15 even if they explicitly asked for those documents. The Border Guard’s representatives in Terespol explained that foreigners were not interested in these documents and refused to take them. Some foreigners claimed, though, that they had been informed by the Border Guard’s officers that the copy of their decision would not be given in order to preclude appealing against it (Chr­ zanowska et al. 2016, pp. 77–78). Furthermore, the Border Guard’s officers do not allow foreigners’ lawyers or other representatives to accompany them during a procedure conducted on the border.16 For example, in March 2017 a group of Polish attorneys with NGOs’ representatives approached the border crossing point in Terespol in order to pro­ vide legal assistance to foreigners attempting to apply for asylum. Despite having proper power of attorney, they were denied access to their clients (Kozliuk et al. 2017, pp. 15–16; Rusiłowicz, Ostaszewska-Żuk & Łysienia 2018, p. 14). In such circumstances, it is not surprising that NGOs report that none (Human Rights Watch 2017) or only a small number of interviewed foreigners decided to

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appeal against a decision on a refusal of entry.17 One NGO observed that some for­ eigners are reluctant to appeal, because they are afraid of negative consequences if they decide to approach the border crossing point in Terespol again. In two cases reported by this NGO, when a foreigner intended to lodge an appeal there, the Border Guard took additional actions in order to prevent access to the appeal pro­ cedure. Officers either declined accepting the appeal or they accepted the appeal, but they refused to confirm this fact in writing. Afterwards, the appeal disappeared from the foreigner’s file (Chrzanowska et al. 2016, p. 80). The Polish authorities also disregard interim measures granted by the ECtHR and the United Nations High Commissioner for Human Rights (UN HCHR) in cases regarding a refusal of entry. In 2017, the ECtHR indicated in four cases concerning the situation at the border crossing point in Terespol that the applicants should not be removed to Belarus.18 Poland did not comply with these provisional measures (Białas, Górczyńska & Witko 2019, p. 37; HFHR 2017a; Rusiłowicz, Ostaszewska-Żuk & Łysienia 2018, p. 15). Additionally, the interim measure issued by the UN HCHR was ignored by the Polish authorities (HFHR 2017b). 4.2.2 Return decision 4.2.2.1 Procedure Return proceedings in Poland are also conducted by the Border Guard. It is responsible for issuing an administrative first-instance decision on a foreigner’s obligation to return (a return decision) as well as its enforcement. Return proceed­ ings are the administrative procedure similar to previously discussed proceedings regarding a refusal of entry. Thus, I will focus herein only on the most important differences within those two procedures. Firstly, a return decision may be appealed against to the Head of the Office for Foreigners (Szef Urzędu do Spraw Cudzoziemców). Thus, those appeals are considered outside of the Border Guard’s organisational structure. Both authori­ ties are subordinates of the Ministry of Interior and Administration. Secondly, as a rule, a first appeal against a return decision entails automatic suspensive effect. Although when it is required for reasons of national security, etc., a decision is enforced immediately (see section 4.2.2.3). As for court proceedings, when a further appeal is accompanied with a request for an interim measure, a return decision cannot be enforced until the PAC considers this request.19 Until 2018, the requests in this regard were usually accepted. Lately, the practice of the administrative courts has changed and some foreigners have been refused the interim protection for the duration of the court return proceedings. Taking into account the recent judgments of the SAC,20 the stay of removal is justified not in all return cases but only when there are individual and specific circumstances concerning a particular foreigner that are proven before the court. It is not enough to generally claim that a removal will entail a risk of a treatment contrary to Article 3 or 8 of the ECHR (Jaźwińska 2019, p. 33).

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Moreover, the law leaves some possibilities for the Border Guard to enforce a return decision before or during court proceedings, even when a foreigner claims that his or her removal would violate Article 3 of the ECHR or Article 4 of the EUCFR. Firstly, the above-mentioned rule on a suspensive request for interim measure in court proceedings is not applicable if a return decision was issued without a period for a voluntary return because of the security considerations (see section 4.2.2.3). Secondly, the protection against removal is activated by lodging of a further appeal. A foreigner is entitled to do it within 30 calendar days, but a second-instance decision on return is enforceable from the moment of its delivery to a foreigner. As a result, a foreigner is not protected from a removal in those time frames if the decision does not grant him or her a period of 30 days for a voluntary departure (it is a decision without such a period at all or with a period shorter than 30 days) (Chlebny 2014a). A third-country national can be expelled before he or she manages to lodge a further appeal to the court, which happened in practice (Białas 2015, p. 34). Finally, the law provides for a suspensive effect of a remedy only until the PAC’s ruling. If the court refuses to grant an interim measure, a return decision is enforceable, even if this refusal is appealed to the SAC. If the latter decides to grant an interim measure, it can be too late, as a foreigner may be already expelled. Thus, the automatic suspensive effect of a remedy in return proceedings is guar­ anteed under Polish law, but the provisions in this regard are allowing for excep­ tions and have loopholes that enable the enforcement of removals before the court decides on the merits of a further appeal. Meanwhile, pursuant to Article 47 of the EUCFR a foreigner should have access to a judicial remedy (the administrative proceedings before the Office for Foreigners cannot be considered as sufficient). Taking into account the jurisprudence of the ECtHR and the Court of Justice of the European Union (CJEU) reiterating that automatic suspensive effect of a rem­ edy is required in return proceedings,21 it has to be concluded that Polish law may be considered as not affording a sufficient protection of a right to an effective remedy in those proceedings. 4.2.2.2 Accessibility According to Polish law, the informative obligations of the Border Guard in return proceedings are more expanded than in the case of decisions issued on the border. Moreover, a return decision has to be translated (in writing or orally) to a language understandable for a foreigner, although only in some parts (concerning the legal basis, resolution, and instruction on appeal proceedings). However, the obstacles to the access to a remedy from the Border Guard’s decision mentioned before remain valid in relation to return proceedings. A return decision is translated only partly, and the whole justification is written in Polish, so a foreigner has to find a translator or a proxy to fully understand why he or she is obliged to depart from Poland. An appeal has to be written in Polish and proofs in a foreign language have to be presented with a sworn translation to Polish. If a foreigner is expelled before the conclusion of the proceedings, he or she has to

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appoint a proxy for delivery purposes. Despite the complexity of the law regard­ ing returns, Poland does not guarantee access to free legal aid for all foreign­ ers in administrative proceedings concerning returns. Indigent foreigners have to depend on the NGOs providing this aid free of charge. The most significant impediments to accessing remedies in return proceedings are observed in case of a foreigner who is considered as a security threat in Poland. 4.2.2.3 Case study – security considerations A return decision is issued by the Border Guard inter alia if it is required for reasons of defence, national security, protection of the public safety and order, or the interest of Poland (hereinafter: security considerations). The decision does not provide for a period for a voluntary departure. In those circumstances, return decisions are enforced immediately. A foreigner has a right to appeal against such decision, although the appeal does not entail a suspensive effect. A return decision is enforceable even if a foreigner claims that a removal would violate Articles 2 or 3 of the ECHR22 or Article 4 of the Protocol No. 4 to the ECHR. It poses a risk that a protection offered by the ECHR will be irrelevant, as it may be applied after a removal from which it should have been protecting a foreigner (Szklanna 2010, p. 203). The enforcement of a return decision in such case may lead to an irreparable harm, and Polish law does not offer any protec­ tion against it. Meanwhile, the ECtHR emphasised on numerous occasions that ‘the notion of an effective remedy under Article 13 requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible.’23 A rushed expulsion may render appeal proceedings ineffective and in consequence inaccessible (Mananashvili 2016, p. 722). In case of a possibility that a removal would violate the above-mentioned provisions of the ECHR, automatic suspensive effect of an appeal lodged in return proceedings is considered a must.24 Polish law does not meet this requirement in the case of a return justified by the security considerations. Appealing a return decision issued because of the security considerations is not only hindered by its immediate enforcement but also by the lack of a justification of a decision. By law, authorities may refrain from giving reasons of a return, if it is required by the security considerations. In consequence, a foreigner receives a return decision in which he or she is considered a security threat, but no factual justification is offered. Grounds of a foreigner’s return are also not made available in any form to his proxy (Chlebny 2018, p. 129). The possibility to refrain from a justification in a return decision does not release authorities from the obligation to collect comprehensive evidence (WojnowskaRadzińska 2017, pp. 66–67) that confirms the existence of the security consid­ erations. However, this evidence is predominantly made secret and a foreigner as well as his or her proxy have no access to a part of a return case file that is classified.25 Polish law does not provide for a special proxy who would be entitled to look through a classified file and prepare an appeal on this basis. As a result, currently, in accordance with Polish law, neither a foreigner who is considered a

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security threat in Poland nor his or her proxy have legal possibility to get to know the reasoning of a return decision and challenge the evidence gathered in a case. In consequence, they do not have ‘fair and reasonable opportunity of refuting facts’ that are the basis of the Border Guard’s decision.26 The SAC considered the foreigner’s lack of access to a classified case file in return proceedings as being in compliance with the ECHR as well as EU law.27 In the court’s view, solutions provided in Poland are ensuring the same level of for­ eigner’s protection as the institution of a special proxy. This institution is justified in the legal systems in which judicial analysis is limited to arguments provided by the parties in a further appeal, which is not a case in Poland.28 In the court’s opin­ ion, the fact that Polish authorities considering remedies in return proceedings have full access to a foreigner’s case file (including a classified part) and take into consideration ex officio any violation of law occurring during administra­ tive proceedings ensures a sufficient protection of foreigners’ rights. The abovementioned reasoning is also a basis of the courts’ judgments concerning the lack of a justification in return decisions.29 The compliance of Polish law in this regard with the international and EU human rights law is contested. Kamiński assessed that the fact that Polish authori­ ties had full access to a classified case file was not enough from the ECHR’s perspective (Kamiński 2016, p. 234). The Commissioner for Human Rights (Rzecznik Praw Obywatelskich) expressed an opinion that the lack of access to a case file is compatible with Article 13 of the ECHR and Article 47 of the EUCFR, only if there are additional protective mechanisms which would mitigate negative consequences of a refusal of access (like a special proxy mentioned before). The Commissioner did not find such mitigating mechanisms in Polish law (Commis­ sioner for Human Rights 2016b). Chlebny considered provisions in this regard as anachronistic in a view of the CJEU’s judgment in the case of ZZ (Chlebny 2014b, pp. 105–110). In this ruling, the court allowed for national legislations that enable not disclosing evidence and full reasoning of a decision to a foreigner due to the security considerations but only when ‘an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection’ is stricken ‘whilst limiting any interference with the exercise of that right to that which is strictly necessary.’ Moreover, the court emphasised that ‘in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence.’30 Independently from the assessment of whether the institution of a securitycleared counsel is necessary or not, it must be concluded that the access to rem­ edies in return proceedings in Poland in the case of foreigners considered as a security threat is significantly hindered. The ECtHR’s requirement of ‘some form of adversarial proceedings’ is not satisfied (Wojnowska-Radzińska 2017, p. 68).31 Neither is the CJEU’s adversarial principle complied with. The right to a defence

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is limited and a foreigner is forced to depend on the authorities’ scrutiny (Chlebny 2007). There is no mechanism that would reconcile public interest of keeping some information secret with a right of a party to the proceedings to be protected against arbitrary interference of Polish authorities (Chlebny 2014b, p. 105).

4.3 Complaint mechanisms and judicial remedies When a violation of human rights results from an action or inaction of a Border Guard officer, in connection with a performance of his or her professional duties, Polish law provides for some forms of complaint mechanisms (i.e. the internal supervision; disciplinary, criminal, and civil proceedings). Judicial and nonjudi­ cial remedies are made available to foreigners, although they are not eagerly used in practice. 4.3.1 Internal supervision and disciplinary proceedings Foreigners are entitled to lodge a complaint on actions and inactions of Border Guard officers within the context of the internal supervision proceedings at any time. Complaints may concern negligence or improper performance of the Border Guard’s duties, a violation of the rule of law or the interests of complainants, as well as a long-lasting or bureaucratic performance of the duties. Complaints may be lodged in any form (also by e-mail), but they cannot be anonymous, and they have to be written in Polish (Commissioner for Human Rights 2016a). Complaints are processed by the special supervision departments in the Border Guard. The complaint proceedings end with a notice send to the complainant in which he or she is informed about the outcome of a procedure. In the case where a complaint is considered unjustified, a notice should contain a legal and factual explanation. There is no possibility to appeal such a notice. In 2016, the Border Guard considered 268 complaints. The largest num­ ber of complaints concerned border control (128). Only 8% of the complaints were considered justified (Biuro Kontroli Komendy Głównej Straży Granicznej 2017). Concerning the situation at the border crossing point in Terespol (see sec­ tion 4.2.1.3), it is helpful to analyse the data regarding the number of complaints in this part of Poland (Nadbużański unit). In 2016, this unit considered 39 com­ plaints; 41 were left without consideration, as they were anonymous. Of the 39 complaints, 26 of them concerned border control, and only one was considered justified.32 From January to August 2016, only three complaints were registered directly at the border crossing point in Terespol (Commissioner for Human Rights 2016a). A complaint lodged as described above can lead to an initiation of a disciplinary procedure against a specified officer. The disciplinary proceedings are initiated by the entitled authority (Chiefs of the Border Guard’s units or the Ministry of Inte­ rior and Administration) in the case of a violation of professional discipline, noncompliance with the rules of professional ethics, especially with respect to the honour, dignity, and good name of the Border Guard, or in others cases specified

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in the law. Various penalties may be imposed, such as different kinds of repri­ mand, an appointment to a lower position, lowering of a rank, a warning about an incomplete suitability for service, or an expulsion from the Border Guard. A foreigner whose rights were violated cannot initiate the disciplinary proceed­ ings by himself or herself, and he or she is not a party to those proceedings (at most, he or she is a witness). He or she may not even be informed about an out­ come of the disciplinary procedure. A foreigner has no right to appeal from a deci­ sion imposing a penalty on an officer. His or her role in this procedure is limited to providing needed information about any mistreatment, unlawful conduct, or disproportionate use of force by the officer. How this information is used depends entirely on a decision of the appropriate nonjudicial authorities. 4.3.2 Criminal proceedings Officers of the Border Guard are as criminally liable as any other person in Pol­ ish territory, but because they are in a position of public trust, they are obliged to use special diligence in the performance of their duties (Szczęsny 2014, p. 111). Concerning the Border Guard’s role in removals, it is especially important to note that public officers are criminally liable for crimes committed abroad that are in connection with performance of their duties, even if the specific act in question is not a crime in the country in which it was committed.33 A public officer who by abusing his or her authority or not fulfilling his or her duties acts to the detriment of a public or private interest is subject to imprison­ ment of up to three years. If he or she acts this way in order to obtain a financial or personal gain, he or she is subject to imprisonment for up to ten years. An act to the detriment of a public or private interest may have pecuniary as well as nonpecuniary character (Szczęsny 2014, p. 111), but it is necessary for there to be the allegation of a crime. An officer abusing his or her authority or not fulfilling his or her duties but not causing such detriment is only subject to internal disciplinary action (Dziwisz 2016, p. 127; Szczęsny 2014, p. 111). The crime of an abuse of power described above is prosecuted ex officio, but some other crimes which may be committed during a performance of the Bor­ der Guard’s duties are not. For example, crimes of insult or violation of physical integrity (e.g. when performing a strip search) are prosecuted privately. Thus, a victim has to independently prepare an indictment and support it in court proceed­ ings. The role of the Police and the Prosecutors’ Office is restricted to accepting a complaint and securing of evidence if it is needed.34 If a victim does not know the Polish language sufficiently, linguistic assistance is guaranteed free of charge by law during interrogation and examination of any evidence. A translation to a mother tongue is not required, but a language used has to be understandable for a foreigner at a basic communicative level (Makar­ ska 2017, p. 609). A twofold translation (from a language known by a foreigner to a second foreign language and afterwards to Polish) is admissible (Makarska 2017, p. 610; Płończyk 2017, p. 622). A victim having the status of an auxiliary or private prosecutor is also entitled to receive a judgment with a translation if a

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judgment is subject to an appeal or is ending the proceedings.35 Additional free linguistic assistance may be granted by a court upon a foreigner’s request. Legal assistance in cases where a foreigner is a victim seems indispensable, considering the problems with languages, the lack of support from law enforce­ ment authorities in cases initiated by a private prosecutor, and the complexity of the criminal law and procedure. A victim may ask a court for free legal aid if he or she proves that he or she is not able to pay for a proxy without a detriment to the essential maintenance of himself or herself and any dependants. A victim staying abroad is obliged to point out a recipient for deliveries in Poland. If he or she does not provide such information, court letters are sent to the last known address in Poland or left in a case file with the presumption of delivery. In criminal proceedings, an obligation to repair damage caused by a crime or to monetarily compensate for a suffered harm may be ordered. A court adjudicates in this regard only upon a victim’s or other entitled person’s request, which has to be lodged before a conclusion of court proceedings. If a victim does not request repair of damage or compensation in criminal proceedings, he or she can still demand it in the civil procedure (see below). As a rule, a court’s judgment delivered in a first instance in criminal proceed­ ings may be appealed to a court of second-instance by a victim, but only if he or she has the status of an auxiliary or private prosecutor. An appeal from a district court’s judgment has to be prepared and signed by an attorney. 4.3.3 Civil proceedings The right to be compensated in case of an unlawful action of a public authority is guaranteed in the Polish Constitution and it is specified in the Polish Civil Code. If the Border Guard’s action or inaction leads to an injury, a foreigner con­ cerned is entitled to bring a lawsuit to a court requesting repair of the damage or compensation for harm. In some special circumstances, proper performance of public duties may result in damage and an obligation to repair it or compensate for harm. If a foreigner does not know the Polish language sufficiently, linguistic assis­ tance is guaranteed free of charge by law only during his or her interrogation as a witness. Failure to provide the assistance of a translator in such case is considered as a reason for the invalidity of the proceedings.36 Additional free linguistic assis­ tance may be granted by a court upon a foreigner’s request. Moreover, a foreigner who is a party to civil proceedings can ask a court for free legal aid if he or she proves that he or she is not able to pay for a proxy without a detriment to the essential maintenance of himself or herself and any dependants. According to the Polish Code of Civil Proceedings, a foreigner staying in a third country (non-EU) who is a party to civil proceedings and is not represented by an attorney in Poland is obliged to appoint a proxy for delivery purposes. If he or she does not appoint such a proxy, court letters (except the first one with an instruction about the obligation to appoint a proxy) are left in a case file with the presumption of delivery.

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The remedies available in the proceedings are of a judicial nature. A court’s judgment made in a first instance may be appealed by a foreigner who is a party to the proceedings. 4.3.4 Accessibility Regarding the complaint mechanisms available in Poland on the Border Guard’s actions and inactions, foreigners face similar difficulties as in administrative pro­ ceedings concerning a refusal of entry and return. Letters to the Polish authorities, including those initiating the internal supervision, criminal proceedings, and civil proceedings, have to be formulated in Polish. All the proceedings are conducted in Polish and judgments are as a rule issued in this language. The access to free linguistic assistance is insufficient and – in the civil and criminal proceedings – dependant on a foreigner’s request and a court’s decision., Legal aid is guaranteed in criminal and civil proceedings for indigent individuals. Legal aid and linguistic aid are not available at all in internal supervision proceedings. Individuals living abroad have to provide an address for deliveries in Poland. The biggest obstacle in civil, criminal, disciplinary and internal supervision proceedings is though evidentiary difficulties. Most of the Border Guard’s actions or inactions involve only foreigners and officers. If a foreigner accuses a Border Guard officer of committing, for example, mistreatment, unlawful conduct, or disproportionate use of force, very often he or she cannot present any other proof than his own statement. The problem is duly illustrated by the situation at the bor­ der crossing point in Terespol. Foreigners who received a decision on a refusal of entry are often claiming that they explicitly asked for refugee status on the Polish border. Officers of the Border Guard state that the same foreigners declared only family or work reasons of entry.37 It is a ‘word against word’ situation. Witnesses may be difficult to trace and afraid to testify about the Border Guard’s misconduct. In practice, foreigners’ representatives are not allowed to participate in the pro­ cedures conducted on the Polish border. Only some authorities, e.g. the Commis­ sioner for Human Rights, the Ombudsman for Children (Rzecznik Praw Dziecka), are entitled to take part in those activities. However, such monitoring is in practice rare. In consequence, there are often no witnesses to the contested Border Guard’s action or inaction other than the person claiming wrongdoing. Some remedy to the evidentiary difficulties – at least in case of return opera­ tions – could be a monitoring of forced returns conducted by NGOs. The law ena­ bling such monitoring came into force in May 2014. In practice, some monitoring activities took place from 2014 through 2015 (HFHR 2015c; Przybysławska 2015). Since 2016, NGOs have been facing financial difficulties as a result of a suspension of EU funds (FRA 2019, p. 12; Klaus, Ostaszewska-Żuk & Szc­ zepanik 2017, pp. 15–16). By law, costs of the NGO’s participation in a return operation are covered by the state, if a return involves at least five foreigners (a rare situation) and it is conducted on a sea ship or a chartered airplane. Such strict regulation of the coverage of costs of the monitoring contributed to the decreasing participation of NGOs in those operations.38

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Even when the monitoring was conducted by NGOs more often than currently, it could not be considered effective. The Border Guard was not informing NGOs about all returns,39 there was no translator present during operations (HFHR 2015c, pp. 3–4; Przybysławska 2015, p. 6) and the NGOs’ representatives were refused access to the foreigners’ case files (despite the foreigners’ consent) (Demi­ aniuk & Kochanowicz 2015, p. 24; HFHR 2015c, pp. 4–5; Przybysławska 2015, pp. 3–4). Moreover, during removals carried out by land, NGOs’ representatives were not allowed to travel in the same car in which a foreigner was transported (HFHR 2015d), which undermined the purposefulness of such monitoring at all.

4.4 Conclusions Polish law provides for diverse remedies of a judicial nature to foreigners affected by decisions, actions, and inactions of the Border Guard, being in this regard in compliance with Article 47 of the EUCFR. Third-country nationals can appeal to the administrative courts against return and refusal of entry decisions. When they are victims of mistreatment, unlawful conduct, disproportionate use of force, or any other action or inaction committed by officers of the Border Guard that violates their rights, they can choose between nonjudicial and judicial remedies, including initiating criminal or civil proceedings before a court. The list of remedies available to foreigners in Poland is considerable, but in practice, they are not easily accessible for third-country nationals. Piling up legal as well as practical obstacles to benefiting from those remedies may efficiently discourage foreigners from lodging appeals against decisions regarding a refusal of entry or return and from initiating internal supervision, criminal proceedings, or civil proceedings. Foreigners face such problems as the lack of sufficient – and provided in an understandable language – information about available remedies; the requirement to prepare all motions, appeals, and other letters in Polish and provide a proxy for delivery purposes in case of staying abroad; and the lack of sufficient linguistic and legal aid as well as evidentiary difficulties. In the circum­ stances of a particular case, an accumulation of all these impediments may render the remedies that are available by law inaccessible in practice. Meanwhile, under the well-established case law of the ECtHR and CJEU, remedies – to be consid­ ered effective – have to be available not only in law but also in practice.40 Moreover, under the requirements of the right to an effective remedy, national authorities cannot hinder access to remedies in an unjustified manner.41 Mean­ while, it was reported by Polish NGOs that the Border Guard’s officers in Ter­ espol did hinder access to the appeal procedure against decisions on a refusal of entry.42 In addition, some provisions of the Polish law hamper in unjustified manner the exercise of the right to an effective remedy. The access to remedies in return proceedings is especially difficult due to the lack of a justification in a decision ordering a removal and limited access to a case file that is being justi­ fied by security considerations. Those procedural shortcomings are controversial from the human rights perspective, in particular because the law does not offer any other measure which would constitute some form of adversarial proceedings.

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Moreover, Polish law hinders access to a remedy by enabling – in some circum­ stances – the enforcement of a return decision before it is considered by the court and by not providing for a suspensive effect of a remedy in proceedings regarding a refusal of entry. In conclusion, the commitment of Polish authorities to guaranteeing a right to an effective remedy in accordance with Article 47 of the EUCFR and Article 13 of the ECHR to third-country nationals affected by decisions, actions, and inac­ tions of officers of the Border Guard is not sufficient. The number of legal and practical obstacles that foreigners have to face is overwhelming and effectively discourages them from profiting from remedies. Some of the legal provisions and practices of the Border Guard directly hinder access to the remedies guaranteed by law. There is no political will to reinforce a right to an effective remedy in pro­ cedures concerning border management and returns, and change in this approach is unlikely given the current government’s negative attitude towards asylum seek­ ers and migrants. While the accountability instruments and bodies that are internal to the authori­ ties responsible for border management and returns are not sufficient, external supervisory and accountability structures are of even greater importance. Mean­ while, the nongovernmental sector that assists foreigners in Poland faces finan­ cial difficulties due to the government’s policy hindering or precluding NGOs from receiving EU funding. Despite the necessity to diminish the scope of their activities, also as regards legal aid, some NGOs supported by lawyers acting pro bono continue to assist foreigners in enforcing the right to an effective remedy in Poland. They provide essential legal and linguistic assistance, offer an address for a postal delivery for foreigners forced to stay abroad or monitor border cross­ ings and return operations whenever it is possible. In particular, they assist in lodging applications to the ECtHR and try to persuade national courts to initiate a preliminary ruling procedure in the CJEU.43 The forthcoming judgments of the Strasbourg Court concerning foreigners’ access to an effective remedy in Poland give some hope for the improvement in this regard.44 This hope, however, is small, taking into account the recent lack of compliance of the Polish authorities with the interim measures granted by the ECtHR in the case of asylum seekers pushed back in Terespol.

Notes 1 The author thanks attorneys Daniel Witko and Ewa Ostaszewska-Żuk from the Hel­ sinki Foundation for Human Rights in Warsaw for information and helpful sugges­ tions. All errors remain the author’s own. 2 The data including voluntary and forced returns, Dublin transfers, transfers on a basis of readmission agreements, etc. 3 E.g. ECtHR, M.A. and Others v. Lithuania, no. 59793/17, 2018, para. 119; ECtHR, Kebe and Others v. Ukraine, no. 12552/12, 2017, para. 106–107. 4 Only one letter is received, in which a request is made to appoint a proxy for delivery purposes. 5 E.g. PAC in Warsaw, judgment of 18 April 2016, no. IV SA/Wa 3283/15. 6 Ibid.

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7 Ibid. See also Chrzanowska et al. 2016, p. 76. 8 Funding from the Asylum Migration and Integration Fund (AMIF) has been in practice suspended in Poland since 2016. See Rusiłowicz, Ostaszewska-Żuk & Łysienia 2018, p. 21; FRA 2019, p. 12. 9 E.g. SAC, judgment of 17 May 2018, no. II OSK 2766/17 and two judgments of 20 September 2018, no. II OSK 345/18 and no. II OSK 890/18. See also Białas, Górczyńska & Witko 2019, pp. 33–35. 10 Information from the HFHR based on the statistics of the Border Guard. 11 Rusiłowicz, Ostaszewska-Żuk & Łysienia 2018, p. 14. 12 See endnote n. 10. 13 In 2016, 8,305 foreigners applied for asylum in Terespol (out of 11,285 in total) and in 2017 it was 1,903 out of 4,430 in total (Komenda Główna Straży Granicznej 2018). 14 Commissioner for Human Rights 2016a; Górczyńska & Szczepanik 2016; Chrzanow­ ska et al. 2016; Human Rights Watch 2017; Kozliuk et al. 2017; Biuro Rzecznika Praw Dziecka 2017; Commissioner for Human Rights 2018a. 15 Chrzanowska et al. 2016, pp. 77–78; Kozliuk et al. 2017, pp. 11–12, on a contrary observation: Biuro Rzecznika Praw Dziecka 2017, p. 20. 16 Kozliuk et al. 2017, p. 12; Białas, Górczyńska & Witko 2019, p. 21. This practice was considered a violation of law by the PAC in Warsaw (judgment of 21 November 2017, no. IV SA/Wa 1829/17, cited Rusiłowicz, Ostaszewska-Żuk & Łysienia 2018, p. 15) and SAC (e.g. judgment of 20 September 2018, no. II OSK 445/18). 17 Only three foreigners (Chrzanowska et al. 2016, p. 80). However, according to data from the Border Guard, 142 foreigners lodged appeals between January and June 2018 against a decision on a refusal of entry issued in Terespol. 18 ECtHR, M.K. v. Poland, no. 40503/17; M.A. and Others v. Poland, no. 42902/17; M.K. and Others v. Poland, no. 43643/17; D.A. and Others v. Poland, no. 51246/17. 19 In a case of a return decision granting a period for a voluntary departure, this period is extended until the court considers a motion for an interim measure. 20 E.g. SAC, decision of 11 January 2018, no. II OZ 1621/17. 21 E.g. ECtHR, Gebremedhin [Gaberamadhien] v. France, no. 25389/05, 2007, para. 66; ECtHR (GC), M.S.S. v. Belgium and Greece, no. 30696/09, 2011, para. 290– 293; ECtHR, A.A.M. v. Sweden, no. 68519/10, 2014, para. 44–46; CJEU (GC), case C-562/13 Abdida, 2014, para. 50; CJEU, case C-239/14 Tall, 2015, para. 58; CJEU (GC), case C-181/16 Gnandi, 2018, para. 56. 22 However, by law, in those circumstances a return decision should not be issued, but a tolerated stay should be granted – even in case of security considerations. 23 ECtHR, Ĉonka v. Belgium, no. 51564/99, 2002, para. 79. 24 See cases listed in endnote n. 20. See also Lambert 2007, p. 62; Szklanna 2010, pp. 203–205; Nowicki 2014, pp. 88, 90–91. 25 See also Chlebny 2018, p. 129; FRA 2019, p. 3. 26 ECtHR, C.G. and others v. Bulgaria, no. 1365/07, 2008, para. 60. 27 E.g. SAC, two judgments of 29 June 2016, no. II OSK 2586/14 and no. II OSK 2554/14. 28 However, the SAC’s analysis is in fact limited to arguments provided in a cassation appeal. The court did not consider it as a problem, because in its view the fact that this appeal is always written by an attorney should guarantee that a court would be able to consider any possible violation (See SAC, two judgments of 29 June 2016, no. II OSK 2586/14 and no. II OSK 2554/14). 29 SAC, judgment of 9 September 2016, no. II OSK 61/15; PAC in Warsaw, judgment of 12 April 2018, no. IV SA/Wa 2672/17 described in HFHR 2018a, 2018b. 30 CJEU (GC), case C-300/11 Z.Z., 2013, para. 64–65. 31 ECtHR, Al-Nashif v. Bulgaria, App no. 50963/99, 2002, para. 137. 32 Biuro Kontroli Komendy Głównej Straży Granicznej 2017, data concerning the whole unit, not only the border crossing point in Terespol.

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33 This is an exception from the general rule, namely, that liability for crimes committed abroad is dependent on the fact that a committed act is considered a crime in a country where it has taken place. 34 It is reported that notifications about crimes sometimes are not accepted by authorities, even in the case of serious crimes like human trafficking, which is prosecuted ex officio (Klaus 2017, p. 377). 35 A victim becomes an auxiliary prosecutor in the case of a crime prosecuted ex officio, if he or she states a willingness to become one before the commencement of court pro­ ceedings. He or she will be informed about such right after sending an indictment to a court by a prosecutor. However, victims (both foreigners and Poles) receive the com­ prehensive information concerning their rights and obligations in criminal proceedings with a difficulty (Klaus 2017, pp. 390–391). 36 Supreme Court (Sąd Najwyższy), judgment of 31 May 2017, no. V CSK 506/16. 37 The Ombudsman for Children compared foreigners’ statements about reasons of entry to Poland received by his representatives during monitoring in Terespol and the con­ tent of the decisions on a refusal of entry issued in case of the same foreigners. He found significant differences (Biuro Rzecznika Praw Dziecka 2017, pp. 9–11, 15–17). 38 In 2014, HFHR took part in 11 return operations, but only in two cases did it observe the whole operation. In other cases, due to the inability to cover costs, the HFHR’s representatives monitored only part of the operation taking place at the airport (HFHR 2015c, pp. 2–3). Other NGOs from June 2014 to June 2015 took part in nine opera­ tions, but only in two cases were flights monitored (Przybysławska 2015, p. 4). In 2017, HFHR’s representatives took part only in two operations. Other NGOs were not monitoring returns then (information from the HFHR from 26 April 2018). 39 E.g. in January 2015, 34 return flights took place but HFHR was informed only about five of them. HFHR was also not informed about returns carried out by land (see HFHR 2015b, p. 2; information note in English: HFHR 2015a. Afterwards the Border Guard agreed to inform NGOs about all returns (see HFHR 2015d). 40 E.g. ECtHR (GC), M.S.S. v. Belgium and Greece, no. 30696/09, 2011, para. 290; ECtHR (GC), De Souza Ribeiro v. France, no. 22689/07, 2012, para. 80; ECtHR, Kebe and Others v. Ukraine, no. 12552/12, 2017, para. 100; CJEU, case C-403/16 El Has­ sani, 2017, para. 30; CJEU, case 3/16 Aquino, 2017, para. 48. 41 E.g. ECtHR, Kebe and Others v. Ukraine, no. 12552/12, 2017, para. 100. 42 See reports listed in endnote n. 14. 43 E.g. CJEU, case C-403/16 El Hassani, 2017. 44 Cases listed in Endnote n. 18.

References Białas, J. (2015), ‘Możliwość wykonania decyzji powrotowej przed złożeniem przez cud­ zoziemca skargi do sądu’, in J. Białas, M. Górczyńska, M. Jaźwińska, M. Łysienia, E. Ostaszewska-Żuk & D. Witko (eds.), Powroty: Obserwacje Programu Pomocy Prawnej dla Uchodźców i Migrantów Helsińskiej Fundacji Praw Człowieka dotyczące przestrzegania praw cudzoziemców powracających do kraju pochodzenia, Warsaw: HFHR, pp. 33–34. Białas, J., Górczyńska, M. & Witko, D. (2019), Dostęp do procedury azylowej na zewnętrznych granicach Polski. Stan obecny i wyzwania na przyszłość, April, Warsaw: HFHR, www.hfhr.pl/wp-content/uploads/2019/04/Dost%C4%99p-do-procedury-azylowejv2.pdf?fbclid=IwAR0FfmoamHT6cysZ6YW-KWssHELeEFo6qdk5TP3PzksyhdCIIZ AxLl2JiTI. Biuro Kontroli Komendy Głównej Straży Granicznej (2017), ‘Okresowa ocena przyjmow­ ania i załatwiania skarg i wniosków przez organy Straży Granicznej w 2016 roku’, 2

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June, www.bip.kgsg.strazgraniczna.pl/s01/skargi-i-wnioski/3962,Ocena-przyjmowaniai-zalatwiania-skarg-i-wnioskow.html. Biuro Rzecznika Praw Dziecka (2017), Informacja o wynikach kontroli przeprowad­ zonej w dniu 10 stycznia 2017 r. na kolejowym przejściu granicznym Terespol – Brześć, obsługiwanym przez Placówkę Straży Granicznej w Terespolu, Warsaw, http://brpd.gov. pl/sites/default/files/informacja_o_wynikach_kontroli_przejscie_graniczne_terespolbrzesc.pdf. Chlebny, J. (2007), ‘Striking a Balance Between Protecting National Security and Ensur­ ing Public Order on the One Side and Human Rights on the Other’, speech delivered at the Annual Meeting and Workshop of the Working Party for Asylum and Immigration, European Association of Administrative Judges, 28–29 June, Ljubljana, www.aeaj.org/ page/-Striking-a-balance-between-protecting-national-security-and-ensuring-public­ order-on-the-one-side-and-human-ri. Chlebny, J. (2014a), ‘Suspensive Effect of the Complaint to the Court’, speech delivered at the Seminar of the ACA-EUROPE, 9 May, Brussels, www.aca-europe.eu/seminars/ Brussels2014/Table2_Chlebny.pdf. Chlebny, J. (2014b), ‘Odmowa dostępu do akt w sprawie administracyjnej’, Państwo i Prawo 10/2014, Warsaw, pp. 98–110. Chlebny, J. (2018), ‘Public Order, National Security and the Rights of Third-Country Nationals in Immigration Cases’, European Journal of Migration and Law, Vol. 20, No. 2, pp. 115–134. Chrzanowska, A., Mickiewicz, P., Słubik, K., Subko, J. & Trylińska, A. (2016), At the Bor­ der: Report on Monitoring of Access to the Procedure for Granting International Protec­ tion at Border Crossings in Terespol, Medyka, and Warszawa-Okęcie Airport, Warsaw: Legal Intervention Association, https://interwencjaprawna.pl/en/files/at-the-border.pdf. Commissioner for Human Rights (2016a), ‘Inspection of the Railway Border Crossing in Terespol’, 21 September, www.rpo.gov.pl/en/content/inspection-railway-border-crossingterespol. Commissioner for Human Rights (2016b), Letter to Poland’s Ministry of Interior, August, No. XI.533.2.2016.MS, www.rpo.gov.pl/pl/content/wystapienie-do-ministra-sprawwewnetrznych-i-administracji-w-sprawie-dostepu-do-informacji. Commissioner for Human Rights (2018a), ‘Zapewnić realną możliwość ubiegania się o sta­ tus uchodźcy. RPO pisze do MSWiA’, 3 October, www.rpo.gov.pl/pl/content/zapewnicskuteczna-procedure-skladania-wnioskow-o-status-uchodzcy-rpo-pisze-do-mswia. Commissioner for Human Rights (2018b), ‘Rozmowy Straży Granicznej z cudzoziemcami na granicy nie będą protokołowane. Odpowiedź MSWiA dla Rzecznika’, 9 November, www.rpo.gov.pl/pl/content/rozmowy-strazy-granicznej-z-cudzoziemcami-na-granicynie-b%C4%99d%C4%85-protokolowane-odpowied%C5%BA-mswia-dla-RPO. Demianiuk, J. & Kochanowicz, R. (2015), ‘Monitoring powrotów przymusowych cudzoz­ iemców’, in A.M. Kosińska & P. Wojtasik (eds.), Acquis Return. Doświadczenia imple­ mentacji i rozwój polityki powrotowej Unii Europejskiej, Lublin: Fundacja Instutut na rzecz Państwa Prawa, pp. 13–26, http://panstwoprawa.org/wp-content/uploads/2015/10/ Acquis-return.pdf. Dziwisz, S. (2016), ‘Odpowiedzialność karna osób pełniących funkcje publiczne – uwzględnienie statusu pracownika Najwyzszej Izby Kontroli’, Kontrola Państwowa, Vol. 61, No. 3 (368), Warsaw. FRA (2019), ‘Migration: Key Fundamental Rights Concerns. 1.11.2018–31.12.2018. Quarterly Bulletin’, Luxembourg, https://fra.europa.eu/sites/default/files/fra_uploads/ fra-2019-migration-bulletin-1_en.pdf.

Remedies for acts of the Polish Border Guard

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Górczyńska, M. & Szczepanik, M. (2016), A Road to Nowhere: The Account of a Monitor­ ing Visit at the Brest-Terespol Border Crossing Between Poland and Belarus, October, Warsaw: HFHR, www.hfhr.pl/wp-content/uploads/2016/11/raport-droga-donikad-ENweb.pdf. HFHR (2015a), ‘Forced Returns – Monitoring Still Ineffective’, 18 March, www.hfhr.pl/ en/forced-returns-monitoring-still-ineffective/. HFHR (2015b), Letter to the Chief of the Border Guard’s Headquarters, 11 March, No. 676/2015/MJ, http://beta.hfhr.pl/wp-content/uploads/2015/03/hfpc_wystapienie_1103 2015.pdf. HFHR (2015c), Report of the Helsinki Foundation for Human Rights on the Monitoring of Forced Returns of Foreigners in the Period May-December 2014, No. 81/2015, 15 January, Warsaw, www.hfhr.pl/wp-content/uploads/2015/01/hfhr_report_15012015.pdf. HFHR (2015d), ‘Forced Returns Monitoring: No Observers Allowed?’, 4 May, www.hfhr. pl/en/forced-returns-monitoring-no-observers-allowed/. HFHR (2017a), ‘Attorneys at Border: Poland Failed to Implement ECtHR Judgment’, 9 June, www.hfhr.pl/en/attorneys-at-border-poland-failed-to-implement-ecthr-judgment/. HFHR (2017b), ‘Zarządzenie tymczasowe Wysokiego Komisarza ONZ ds. Praw Człowieka w sprawie rodziny uchodźców z Czeczenii’, 5 September, http://programy. hfhr.pl/uchodzcy/zarzadzenie-tymczasowe-wysokiego-komisarza-onz-ds-praw-czlow ieka-w-sprawie-rodziny-uchodzcow-z-czeczenii/ (last accessed: 25 April 2018). HFHR (2018a), ‘Charges? Secret: Right to Defence in Cases Built on Sealed Evidence’, 15 March, www.hfhr.pl/en/charges-secret-right-to-defence-in-cases-built-on-sealed-evi dence/. HFHR (2018b), ‘HFHR’s Complaint Against Compulsory Return of Iraqi PhD Student Dismissed’, 12 April, www.hfhr.pl/en/hfhrs-complaint-against-compulsory-return-ofiraqi-phd-student-dismissed/. Human Rights Watch (2017), ‘Poland: Asylum Seekers Blocked at the Border’, 1 March, www.hrw.org/news/2017/03/01/poland-asylum-seekers-blocked-border. Jaźwińska, M. (2019), ‘Wstrzymanie wykonania decyzji o zobowiązaniu do powrotu’, in O. Dobrowolska, O. Hilik, M. Jaźwińska, P. Mickiewicz, A. Pulchny, M. Sadowska & K. Słubik (eds.), SIP w działaniu. Prawa cudzoziemców w Polsce w 2018 r., War­ saw, Stowarzyszenie Interwencji Prawnej, pp. 32–35, https://interwencjaprawna.pl/ sip-w-dzialaniu-raport-2018-r-pobierz/. Kamiński, I.C. (2016), ‘Decyzje w sprawach cudzoziemców a ochrona informacji nie­ jawnych’, in D. Pudzianowska (ed.), Status cudzoziemca w Polsce wobec współczesnych wyzwań międzynarodowych, Warsaw: Wolters Kluwer, pp. 230–246. Klaus, W. (2017), ‘Doświadczenia pokrzywdzonych przestępstwem handlu ludźmi w kontakcie z organami ścigania’, in W. Klaus, K. Laskowska & I. Rzeplińska (eds.), Przestępczość cudzoziemców. Aspekty prawne, kryminologiczne i praktyczne, Warsaw: Scholar. Klaus, W., Ostaszewska-Żuk, E. & Szczepanik, M. (2017), ‘The Role of European Funds in Supporting the Integration of Migrants in Poland’, September, www.hfhr.pl/wp-content/ uploads/2017/11/Po-FAMI-raport_EN.pdf. Komenda Główna Straży Granicznej (2018), ‘Biuletyn statystyczny Straży Granicznej za 2017 rok’, January, Warsaw, www.strazgraniczna.pl/pl/granica/statystyki-sg/2206, Statystyki-SG.html. Kozliuk, A., Badzika, H., Matsiushchankau, M. & Lojka, N. (2017), Invisible Refugees on the Border of Belarus and Poland 2016–2017, Minsk: Human Constanta, https://docs. wixstatic.com/ugd/ce31b5_f58ebcce71594504b8539f4ea7e3ce07.pdf.

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Lambert, H. (2007), The Position of Aliens in Relation to the European Convention on Human Rights, Strasbourg: Council of Europe Publishing. Makarska, M. (2017), ‘Dobre praktyki w prowadzeniu postępowań przygotowawczych przez Straż Graniczną’, in W. Klaus, K. Laskowska & I. Rzeplińska (eds.), Przestępczość Cudzoziemców Aspekty Prawne Kryminologiczne I Praktyczne, Warsaw: Scholar. Mananashvili, S. (2016), ‘Return Directive 2008/115/EC: Article 13’, in K. Hailbronner & D. Thym (eds.), EU Immigration and Asylum Law: A Commentary, 2nd ed., München: C.H. Beck. Nowicki, M.A. (2014), ‘Prawo cudzoziemców do skutecznej ochrony prawnej w systemie Europejskiej Konwencji Praw Człowieka’, Palestra, Vol. 3–4, Warsaw, pp. 82–94. Płończyk, K. (2017), ‘Dobre praktyki w prowadzeniu działań operacyjno-śledczych oraz w przygotowywaniu materiału procesowego w sprawach karnych z udziałem cudzoz­ iemców’, in W. Klaus, K. Laskowska & I. Rzeplińska (eds.), Przestępczość Cudzoziem­ ców Aspekty Prawne Kryminologiczne I Praktyczne, Warsaw: Wydawnictwo Naukowe Scholar. Przybysławska, K. (ed.) (2015), ‘Report: Monitoring of Third Country Nationals’ Forced Returns from Poland July 2014 – June 2015’, 30 June, Krakow, Halina Nieć Legal Aid Cen­ tre, https://docs.wixstatic.com/ugd/1fb8cf_052c0852318847cc9a3d41bb3d2e3111.pdf. Rusiłowicz, K., Ostaszewska-Żuk, E. & Łysienia, M. (2018), Asylum Information Data­ base. Country Report: Poland. Update for 2017, February, HFHR, European Council on Refugees and Exiles, www.asylumineurope.org/sites/default/files/report-download/ aida_pl_2017update.pdf. Szczęsny, M. (2014), ‘Z problematyki odpowiedzialności funkcjonariusza Policji’, Studia Ekonomiczne, Vol. 200, Katowice, pp. 109–123. Szklanna, A. (2010), Ochrona prawna cudzoziemca w świetle orzecznictwa Europejskiego Trybunału Praw Człowieka, Warsaw: Instytut Wydawniczy EuroPrawo. Wojnowska-Radzińska, J. (2017), ‘Zakaz arbitralnego wydalania cudzoziemców w świetle art. 1 Protokołu nr 7 do EKPC i jego realizacja w polskim prawie i praktyce – wybrane problemy’, Ruch Prawniczy, Ekonomiczny i Socjologiczny, Vol. 79, No. 1, Poznań, pp. 59–71.

5 Human rights violations in expulsion cases and during

enforced returns

The Austrian law and reality1 Ulrike Brandl 5.1 Introduction Austria established a system of supervision and monitoring of deportations in 1999 and reorganised its institutional affiliation in 2012. On 1 May 1999, the Nigerian national Marcus Omofuma died during his escorted deportation to Nige­ ria.2 This tragic death due to suffocation led to amendments of the laws and to the establishment of new institutions mandated with the control of human rights standards in places where persons are deprived of their liberty.3 These institutions are also in charge of supervising enforced removals. In 2012, the administrative affiliation of the institutions was transferred from the Ministry of the Interior to the organisational structure of the Austrian Ombudsman Board.4 This chapter deals with the legal remedies against return decisions and depor­ tation orders as well as against alleged violations of human rights during forced returns. Whereas a vast jurisprudence exists regarding the first two categories, there are very few remedies filed against human rights violations during the enforcement of deportations. Such enforcement acts are qualified as ‘exercise of direct administrative power or compulsion’ (Article 130(1)2. and 132(2) Austrian Constitution).5 This chapter analyses whether this is a result of the legal safe­ guards applicable during deportations, a result of the fact that persons already outside the country do not exercise their right to bring remedies to courts, or for other reasons. The chapter also discusses the efficiency and independence of the supervisory mechanism in place to avoid human rights violations during enforced return by air.

5.2 Legal basis for return decisions and remedies against return decisions The Asylum Act6 and the Aliens Police Act7 provide the legal basis for return deci­ sions.8 A return decision is a decision containing the obligation of a third-country national to leave the country. This definition corresponds to the definition in the Return Directive.9 Article 52 of the Aliens Police Act is the legal basis for the issu­ ance of return decisions for third-country nationals in general. Return decisions have to be issued if the persons concerned are staying illegally in the territory.

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Article 52 enumerates a number of reasons obliging the Office for Aliens Affairs and Asylum to issue return decisions. It also foresees some exceptions to such an obligation. Return decisions must also be issued for persons staying legally in Austria, but were granted their legal residence status despite the existence of grounds which would have led to a denial of a permit. The return decision has to specify the state(s) to which the person may be returned (Article 52 paragraph 9, Aliens Police Act). Article 10 of the Asylum Act contains the obligation to issue return decisions in asylum procedures, when neither asylum nor subsidiary protection is granted.10 The administrative act combines both the decision not to grant asylum or sub­ sidiary protection and the return decision. The authority also has to issue a return decision if the application for international protection is declared inadmissible based on the safe third-country clause, if asylum or subsidiary protection is with­ drawn, and if no other residence permit based on the Asylum Act is issued.11 The return decision has to grant permission to depart voluntarily within the time limit of 14 days.12 The authorities may grant a longer period if certain cir­ cumstances require the extension of the time limit.13 The initial decisions (administrative rulings) are issued by the Federal Office for Aliens Affairs and Asylum. The persons have the possibility to file remedies against the denial of asylum and subsidiary protection to the Federal Administra­ tive Court.14 The remedy is also directed against the return decision. According to Austrian legal terminology, requests for remedies against such decisions are called complaints.15 In other cases, requests for remedies are only directed against the return decision. In such cases, the remedy must be claimed before the Office. The Office has to submit the requests for remedy and the related files to the Fed­ eral Administrative Court. If the court does not decide in favour of the applicant, the person has the possibility to file a complaint to the High Administrative Court or the Federal Constitutional Court. In complaints brought before the Constitutional Court, infringements of consti­ tutionally guaranteed rights are alleged.16 Constitutionally guaranteed rights are rights contained in the Austrian Federal Constitution, in other constitutional laws, or in provisions in other laws having the rank of constitutional law, such as the ECHR and the Protocols. In many cases Articles 2, 3, and 8 of the ECHR are invoked, as well as Article 13 in combination with one of the other enumerated rights. There is a vast jurisprudence with regard to alleged violations of the pro­ hibition of refoulement, as well as with regard to the question whether an alleged interference into the right to family or private life is justified according to Arti­ cle 8, paragraph 2 ECHR. The decisions regularly cite the jurisprudence of the ECtHR. Austrian courts accept the ECtHR’s jurisprudence and the reasons elabo­ rated in the judgments and constantly refer to them. In cases where the authorities and courts decide whether a return or forced removal to a state is admissible, they have to make a forecast decision about the risk a person is facing in the country of return.17 Deportations to states where there would be a risk of death penalty (Protocols 6 and 13 of the ECHR), torture or ill treatment or punishment (Article 3 of the

Human rights violations in expulsion cases 109 ECHR), treatment contrary to Article 33 of the 1951 Refugee Convention,18 or a risk of an individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (Article 15 Quali­ fication Directive)19 are generally prohibited. The non-refoulement obligations have to be respected in each phase of procedures relating to the return, departure, or deportation of non-nationals. Thus, remedies against return decisions and rem­ edies against deportations grant the possibility to allege a risk in the country of return. Article 46a of the Aliens Police Act determines that persons who may not be deported because of these reasons are tolerated in Austria.20 The authorities have the obligation to issue a ‘tolerated status’ card. This card does not serve as a residence permit; it just shows that the person may not be deported. The card is only issued for persons who fulfil the obligation to cooperate in facilitating the return.21 The Human Rights Commission in Salzburg also reported that though this requirement was met, in some cases the authorities have still refused to issue such cards.22 The Constitutional Court developed a constant jurisprudence with regard to procedural guarantees applicable in asylum proceedings and procedures where a return decision is rendered.23 In 2017 and 2018, the Constitutional Court decided in a remarkable number of cases that procedural standards in asylum procedures were violated. The reasons for the increase of cases brought before the Con­ stitutional Court are, among others, that since the establishment of the Federal Administrative Court in 2014, access to the High Administrative Court has been restricted. This led to a lack of corrective jurisdiction of superior courts control­ ling the Federal Administrative Court. Furthermore, the Constitutional Court reacted with regard to the practice of the Federal Administrative Court to issue inadequately lengthy decisions and formulate the reasoning by using too many unconnected standard text modules.24 The Constitutional Court stressed that the Federal Office for Aliens Affairs and Asylum and the Federal Administrative Court have to base their decision about the return on actual country reports.25 This is especially important for states where the security situation changes quite quickly. The Court decided that a reasoning concerning the situation in Somalia based on reports from 2014 is violating con­ stitutional law. In another case, the religious conversion from Islam to Christianity was seen as credible and based on the conviction of the applicant, but the country reports about the situation of Christians were outdated.26 The Court also decided that country reports about the situation of minor girls and access to education for them have to reflect the actual situation.27 The authorities and the Federal Administrative Court have to refer to these reports in connection with the facts of the individual case, including those stated during the personal hearing and includ­ ing proofs and evidence submitted.28 Medical statements and opinions have to be taken into account in a sufficient way.29 According to Article 24, paragraph 1, Act on Procedures before the Admin­ istrative Courts, the court has to conduct a public hearing if the case requires such a hearing or if the person applies for it.30 A public hearing is not required in cases where the facts are completely clear, based on the content of the files

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and the wording of the remedy.31 Both the High Administrative Court and the Constitutional Court interpreted this provision and clarified that all facts neces­ sary for the final decision have to be investigated in a procedure following all procedural standards. The facts and the result of the investigation have still to be up to date when the court decides.32 A reason for the necessity to conduct a hearing could be that the court has to get a personal impression about the cred­ ibility of the person, e.g. with regard to the conversion of the religion.33 The denial of the right to a public hearing violates Article 47 of the EU Charter of Fundamental Rights.34 In cases where a decision about the safety in a certain area of the state of return has to be rendered, the same procedural standards apply. In 2018, the Constitutional Court changed the jurisprudence with regard to the situation in certain areas of Afghanistan (mainly Kabul) and the question of internal protec­ tion in these areas. Starting with a decision from December 2017, the Court saw the situation in Kabul as an area where persons are safe and may be returned.35 The decision concerned a young man who was originally from Iran and had never lived in Kabul. He had, however, worked as an unskilled worker and would therefore – according to the decision – be able to find work and live in Kabul. The detailed reasoning refers to the specific situation of a young single man who would be able to find a basis to live in Kabul. The Court’s jurispru­ dence in other cases takes the specific situations of persons and families into account. The Court decided e.g. that a family with minor children may not be returned to Afghanistan.36 Jurisprudence refers to UNHCR guidelines for Afghanistan. Remedies against return decisions to the High Administrative Court are pos­ sible as well. The Federal Administrative Court has to decide whether an ordinary petition for review is admissible. The court has to grant permission to file such a remedy if the decision requires the clarification of a legal question of fundamental importance. Fundamental importance comprises cases where no consistent juris­ prudence or any jurisprudence at all exists, or the contested court ruling departs from relevant previous jurisprudence of the Supreme Administrative Court. If no ordinary remedy is admissible, an extraordinary petition for review may be filed. The High Administrative Court either annuls the decision under review or dis­ misses the review as unfounded. Under certain circumstances, however, the High Administrative Court itself may decide on the merits. Besides the possibility to lodge complaints against return decisions, persons who are obliged to leave are entitled to seek other remedies against decisions concerning their deportation or against the unlawful exercise of administrative power or coercion during deportation to the Federal Administrative Court, the High Administrative Court, and the Constitutional Court.

5.3 Legal basis for forced removal and remedies If persons who are obliged to leave based on a return decision do not leave the territory within the prescribed period, or if no period for voluntary departure was

Human rights violations in expulsion cases 111 assigned,37 they are deported.38 Deportation orders are administrative decisions based on Article 46 of the Aliens Police Act.39 According to this provision, per­ sons will also be deported if the supervision of the return is necessary for reasons relating to public order or security or if the person returned to Austria in violation of a valid residence ban. Deportation (Abschiebung) of a person is defined as the order to leave the coun­ try escorted by the police. The exact wording does not say forced removal but formulates the notion as ‘ordinance by public security service officers, on behalf of the authority, to leave the country.’ Article 46 of the Aliens Police Act provides for the organisation of deportation by facilitating the issuance of travel docu­ ments. Returnees have the obligation to contact the representations of the country of origin to obtain the necessary documents. The provision also allows that the authorities issue a written order obliging the person to obtain the necessary docu­ ments from the country of return. Only if this is not possible or if no documents are issued and this is not attributable to the returnee, the person does not violate the obligation. The persons have to submit evidence about the efforts to obtain documents. If they do not fulfil the obligation, the authorities may refuse to issue a card certifying their tolerated status.40 The authorities are obligated to facilitate the return by contacting the authorities of the state concerned. The necessary fees for documents and return certificates have to be paid by Austrian authorities. Aus­ trian law also provides for the possibility to issue a travel document for the sole purpose of return, if it is likely that the country of return accepts such a document (Article 97, paragraph 1, Aliens Police Act). There are no criteria enumerated for the prognosis of likeliness; it seems that the previous practice of cooperation with countries of return is decisive. This document may be issued to facilitate volun­ tary return or deportation.

5.4 Practical enforcement of deportations and remedies Forced removals are carried out by police forces (public security officers, Organe des öffentlichen Sicherheitsdienstes). Third-country nationals are either removed in scheduled flights (escorted by police officers) or in planes especially char­ tered for deportation purposes. If possible and suitable with regard to logistics and budget, airplanes are chartered. This option is usually selected if a specific number of persons are to be returned to the same destination. There is also a regular collaboration with German and Swiss authorities, and return flights are co-organised and co-financed. Forced removal starts with the apprehension by the police.41 Then the persons have to be informed in a mandatory interview about the modalities of the actual enforcement of deportation. In addition, a medical examination and an attest about the capability to be returned by airplane are mandatory. Fixing or coercive measures during deportations are allowed when necessary. These are the most critical points during the deportation phase, and NGO reports as well as reports issued by the Austrian Ombudsman Board reveal violations and point to critical situations, where violations are likely.42

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5.4.1 Remedies against violations during enforced returns If persons allege a violation of their rights during apprehension, in the preparation phase of deportation, and during enforced removal as exercise of direct adminis­ trative power or compulsion, they do have the possibility to file remedies to the Federal Administrative Court.43 This type of remedy is designed to be directed against violations occurring during the exercise of direct administrative power or compulsion.44 It is however also possible to allege that there would be a risk of tor­ ture or other forms of treatment mentioned above in the country of return.45 Again nearly all remedies are based on either a violation of a non-refoulement obligation and/or claim of an unjustified interference into the right to family or private life. There is almost no jurisprudence about alleged violations during deportations.46 Reasons seem to be that in cases where persons are not removed, they are directing their remedies against the return decisions and in cases where persons are deported they do not use the possibility to file remedies from abroad alleging violations during removal. If they intend to re-enter Austria, they usually direct the remedies against entry bans or apply for visa and residence permits.47 5.4.2 Monitoring by NGOs Monitoring mechanisms to supervise police actions, including deportations, are an important element of securing human rights guarantees in these sensitive areas, where usually the acting officers and the persons concerned are alone, the actions are carried out quickly, and the outcomes are often irreversible. The Austrian system provides for supervision by NGOs regulated in the Decree implementing the Aliens Police Act and a monitoring mechanism by the National Preventive Mechanism (NPM) within the Austrian Ombudsman Board.48 Since 2016, six regional expert commissions as parts of the NPM monitor return flights.49 Their mandate is part of the functions allocated to the Ombudsman Board in Article 148a paragraph 3 of the Federal Constitution. Before they started to exercise the monitoring function, the legal question, whether the mandate of the Ombudsman Board comprises monitoring of return flights, had to be clarified. This was finally confirmed. In 2016, one flight of Dublin returnees to Croatia and in 2017 two flights to third countries (Russian Federation and Nigeria) were monitored. The Decree implementing the Aliens Police Act requires the presence of human rights monitoring persons in chartered flights as well as in flights organised on the basis of Article 28, Regulation 1624/2016.50 In scheduled flights, no supervision by external persons is foreseen. Obviously, the publicity is seen as being secured as passengers and airline personal are on board. According to the Decree Implementing the Aliens Police Act, human rights monitors are selected by the Ministry of the Interior.51 These persons are trained by the Ministry as well. The accompanying persons are usually members of one NGO, Verein Menschenrechte Österreich. Already in its 2014 report, the NPM criticised the role of the mentioned NGO, as several functions were either

Human rights violations in expulsion cases 113 allocated to the NGO or overtaken by this NGO. Persons working for the NGO acted as monitors, as return advisors, and as interpreters.52 This situation led to a considerable reduction of the quality of the monitoring system and created role conflicts. In 2015, the Ministry of the Interior together with ICMPD started a pro­ ject to train other NGO members to monitor return flights. The project was carried out in 2015, but at the end, again Verein Menschenrechte Österreich remained as the only organisation carrying out monitoring functions. This situation is critical with regard to the quality of independent and impar­ tial monitoring. The year-long cooperation between monitors and police leads to a certain nexus between police and monitors which might have a considerable influence on the objectivity. The added value of a control from outside might be undermined. Instead, monitors and police seem to act as a buddy system. Reports reveal a close cooperation between police and rapporteurs. After each return flight, reports have to be submitted to the Ministry of the Inte­ rior and the anonymised versions are then submitted to the Ombudsman Board.53 The reports published by the Board refer to the cases by citing case numbers. The cases themselves are not published, which makes research more difficult and is also an impediment for preventive actions by NGOs. The NGO usually accom­ panying flights reports that no violations of rights during enforced returns occur and all applicable international and national standards are obeyed and guaran­ teed. Also other NGOs report that during the deportation flights violations are unlikely.54 These NGOs, however, see the critical phase already earlier in the preparation phase of the return. The persons working for NGOs have to be present starting with the mandatory interview, which is carried out at the airport until the handover to the authorities of the home or receiving country. The supervisors are, however, not entitled to control the preparation phase before the interview when the per­ sons are apprehended and transferred from the place of accommodation or from a detention centre or an alternative place to detention to the airport facilities. Actual important points of criticism and potential dangers for human rights guarantees are the discrepancy between law and practice with regard to vulner­ able persons, the non-availability, or the deficient performance of interpreters, the separation of family members during deportations, and the violations of standards with regard to minors. Medical statements have to be issued before a person is allowed to be returned. These medical statements are issued by doctors who are employed with public services and are regularly working for the public administration. They are not trained with regard to vulnerable persons and do not have specific knowledge about vulnerable groups. It is also remarkable that they do not even receive the previous medical records, which would enable them to have information about vulnerability concerns. Their decision and the medical statements are just based on the impression they get when the carry out a short examination of the returnees. According to Article 46, paragraph 4, of the Aliens Police Act, families should be kept united during enforced removal as far as possible.55 Article 46, paragraph 4, refers to the definition of family member in the Criminal Code.56 Article 72 of

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this code defines the notion of family member in a wide sense. The scope of the provision would build a suitable legal basis for the protection of families. Practice reports, however, reveal remarkable deficiencies and even a separation of mem­ bers of the core family. In addition, the Austrian Ombudsman Board in its function as the NPM regu­ larly criticises the unnecessary separation of children from their families. The 2017 report reveals that the separation of families became evident in a case, where the mother could not be deported to Armenia on the planned official date due to health reasons.57 The authorities deported the two minor children and their father. The forced return of the mother took place three days later. As the mother was the sole legal guardian of the children, parental custody rights were violated as the children were deported with their father who had no parental custody for them. The NPM criticised this breach of the custody regulation as it could ‘represent a violation of the children’s wellbeing.’ The authorities did not check the family background and exposed the children to potential danger. Another point of criticism is the psychological situation of children when their parents are apprehended and coercive measures are applied against the parents during the presence of the children.58 Often accompanying staff are wearing uni­ forms when families with small children are deported. The NPM recommends that this should be avoided. A further problem reported by NGOs is the lack of qualified interpreters during the deportation phase. The reports also reveal that interpreters often tend to give legal or practical advice themselves. A couple of case examples are mentioned in the reports of the Office of the Ombudspersons.59 These reports show structural deficits with regard to the availability of qualified interpreters.

5.5 Monitoring of return flights under the auspices of the National Preventive Mechanism 5.5.1 Structure of the National Preventive Mechanism Already in 1994, the European Committee against Torture suggested the entail­ ment of a national monitoring and preventive mechanism.60 Two recommenda­ tions by the Committee demanded the establishment of such a system for places where persons are held in administrative detention under the responsibility of the Ministry of the Interior.61 The report from the visit carried out by CPT mem­ bers in 1990 revealed that these detention facilities were the most critical areas with regard to human rights violations. The supervisory mechanism was estab­ lished in 1999 a couple of years after the publication of the first CPT reports on Austria. Articles 15a-c of the Security Police Act provided the legal basis for the estab­ lishment and the functions of the Human Rights Advisory Board.62 The mandate was limited and only comprised advisory functions with regard to human rights vis-à-vis the Ministry. The members of the Board had access to all places where persons were deprived of their liberty under control of the Ministry of the Interior.

Human rights violations in expulsion cases 115 The Board also had the mandate to control the exercise of direct administrative power, including deportations. The Board was supported by regional human rights commissions. The Human Rights Advisory Board was only entitled to give non-binding recommendations. The exercise of the control functions, however, was mandatory. The members were appointed by the Minister. The appointment of persons who should also carry out a control function in places under responsibility of the Ministry is not a suitable and objective supervisory model. The control func­ tion should be carried out by independent external controllers but not by persons appointed by the controlled entity. This nexus reduced the value of the mechanism considerably. It was, however, a first step in the erection of a national control sys­ tem. The main weaknesses – the appointment by the Ministry and the institutional affiliation to the Ministry – and the necessity to establish an NPM as required by the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,63 were the main reasons for the creation of a new system in 2012. The Austrian legislature decided to use the opportunity and implemented the obligations deriving from the Protocol against Torture and from the UN Convention on the Rights of Persons with Disabilities together.64 The mandate of protecting and promoting human rights was created by the Act Implementing the Optional Protocol to the Convention against Torture.65 This Act comprises several amendments of the Constitution. Article 148a, paragraph 2, of the Federal Constitution determines the mandate of the Ombudsman Board and the commissions, and explicitly grants permission to ‘visit and inspect the location of deprivation of liberty, to watch and check in an advisory manner the conduct of the organs authorised to exert direct administrative power.’66 The new mechanism was established within the structures of the Austrian Ombudsman Board.67 Article 148h, paragraph 3, of the Austrian Constitution stipulates that the Ombudsman Board has to appoint commissions and create a Human Rights Council as its advisory body. The Council consists of a chairman, a deputy chairman and other members and substitute members. They are appointed by the Ombudsman Board. Federal law provides the extent to which the Ombudsman Board is bound by proposals of other institutions. The Council consists of representatives of the Federal Minis­ tries, Federal States, and representatives of the civil society.68 The members of the Human Rights Council are independent. The Austrian Ombudsman Board has set up six regional commissions. These expert commissions have unrestricted access to all institutions where persons are deprived of their liberty and should receive all the information and documents required to exercise their mandate. After the constitution of these commissions, it was disputed whether they were entitled to monitor flight deportations as well. Since 2016, the members do accompany flights. The Austrian National Preventive Mechanism has been a member of the SouthEast Europe NPM Network since October 2013.69 According to Article 8, paragraph 6, of the Return Directive member states have to set up an effective forced-return monitoring system.70 The NGO Human

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Rights Association Austria (Verein Menschenrechte Österreich) is acting as the national Forced Return Monitor (FReM). The monitoring is carried out together with the International Centre for Migration Policy Development and started in 2015. The Fundamental Rights Agency published data about the monitoring in 2017 and 2018.71 5.5.2 Independence of the monitoring mechanism The reorganisation of the supervisory mechanism in 2012 and the allocation to the Austrian Ombudsman improved the situation, as the monitoring institution is not part of the controlled institution; the members of the Board and the members of the commissions are also independent. The system, however, is not perfect, as the rules about the proposition of members allow too much influence of political parties on the selection of persons.72 According to Article 148g, the Ombudsman Board members are elected by the National Council on the basis of a joint recom­ mendation drawn up by the Main Committee in the presence of at least half its members. Each of the three parties with the largest number of mandates in the National Council is entitled to nominate one member for this recommendation. Thus, the Board is selected by the political parties. The members of the six com­ missions are appointed by the Ombudsman Board. The Human Rights Council has to be heard.

5.6 Concluding remarks Supervision of deportations by NGOs is per se a suitable instrument for the pre­ vention of violations of human rights. The NGO participation in chartered flights designed to guarantee independent monitoring would in principle be a guarantee for sufficient control. The fact however that in practice only one NGO is acting as a monitoring organisation is a reason for criticism, as this leads to a certain rou­ tine, where the monitors and the accompanying police officers act as a team rather than an acting official and a monitoring NGO member. This situation is a potential danger for the proper functioning of the system. The possibility to file a remedy against violations happening during deporta­ tions would theoretically provide legal protection. Practice, however, reveals that such remedies are quite rare. Reports of NGOs and information gathered by the commissions as part of the NPM mechanism and published on the website of the Ombudsman Board reveal that the critical phase of flight deportations is the time between apprehension and boarding. Though these reports also contain recommendations for improvements, there are still many gaps. The monitoring mechanism was strengthened by the institutional change in 2012. As the Ombudsman Board, the Human Right Advisory Board, and the six commissions are all appointed on the basis of proposals influenced by political parties, the necessary independence is not institutionalised.

Human rights violations in expulsion cases 117

Notes 1 The text has been finalised in the summer of 2019, and this chapter takes into account normative and policy developments up to July 2019. 2 Marcos Omofuma was escorted by two police officers on his return to Nigeria. He died on the way to the transit airport in Sofia. He was gagged during this flight and his hands were fixed. The escorting policemen were convicted of negligent manslaughter. See also http://no-racism.net/rubrik/97/. 3 Security Police Act, Federal Law Gazette (FLG) I no 146/1999, amended by FLG I no 2/2008, Articles 15 a-c. The version in force until 30 June 2012 is available on www. ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=100 05792&FassungVom=2012-06-30. 4 Federal Law on the Austrian Ombudsman Board (Volksanwaltschaft), FLG No. 433/1982 as amended by Federal Law Implementing the Optional Protocol to the Convention against Torture (OPCAT-Durchführungsgesetz), FLG I no 1/2012. The consolidated version, including all amendments, is available on www.ris.bka.gv.at/ GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10000732. 5 Federal Constitutional Law (Bundes-Verfassungsgesetz B-VG), FLG no 1/1930 (WV). The consolidated version, including all amendments, is available on www.ris.bka. gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10000138. 6 Federal Act Concerning the Granting of Asylum (Asylum Act, Asylgesetz 2005), FLG I no 100/2005 as amended. The consolidated version, including all amendments, is available on www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Ges etzesnummer=20004240. 7 Federal Act on the Exercise of Aliens’ Police, the Issuance of Documents for Aliens and the Granting of Entry Permits (Aliens Police Act, Fremdenpolizeigesetz 2005), FLG I no 100/2005. The consolidated version, including all amendments, is available on www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnum mer=20004241. 8 The terminology has been amended in order to transpose the provisions of the Return Directive. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member states for returning illegally staying third country nationals, OJ 2008, L 348/98, 24 December 2008. 9 Supra. 10 Article 10 (1) Asylum Act, n. 5: ‘A ruling under the present federal act shall be issued in conjunction with a return decision or with an order for removal from the country pursuant to part 8 of the Aliens Police Act.’ 11 The Asylum Act provides for the possibility to grant various types of residence permits for humanitarian reasons. 12 They may not grant a 14-day period in cases where the suspensive effect of the com­ plaint has been denied. This suspensive effect may be denied or has to be denied for a number of reasons. These comprehensive reasons are enumerated in Article 18, para­ graph 2, of the Act on Procedures before the Federal Office for Aliens Affairs and Asylum (Verfahrensgesetz vor dem Bundesamt für Fremdenwesen und Asyl), FLG I no 87/2012. The consolidated version, including all amendments, is available on www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnum mer=20007944. 13 The authorities have to observe all existing facts and reach a fair balance between the personal and public interests. The circumstances have to be temporary. Their elimina­ tion must be predictable. Austrian courts decided that circumstances not only in Aus­ tria (such as the preparation of return by terminating contracts, termination of school attendance, arranging the transfer of personal belongings and eventually money) but also in the country of return have to be taken into account. See e.g. Austrian High

118

14

15

16

17 18 19

20 21

22 23

24 25 26 27 28 29

Ulrike Brandl Administrative Court 2012/21/0072 16 May 2013. A longer period had to be granted because the persons did not have and were not able to find a place to live with heating in Byelorussia in winter. Act on Procedures before the Federal Office for Aliens Affairs and Asylum, n 11. Act on Procedures before the Administrative Courts (Verwaltungsgerichtsverfahrensge­ setz), FLG I no 33/2013. The consolidated version, including all amendments, is avail­ able on www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzes nummer=20008255. In order to use a uniform terminology throughout this volume, the term remedy is used as a standard term. In Austrian terminology, an appeal is a remedy in administra­ tive proceedings. The decision is rendered by an administrative authority and not by a court. See for the term complaint Carrera and Stefan (2019, p. 1). Article 144, paragraph 2, Federal Constitutional Law, n 4: ‘The Constitutional Court can refuse, by order, to deal with a complaint until the hearing if the complaint does not sufficiently seem to be successful or if the decision cannot be expected to clarify a constitutional problem.’ See e.g. Federal Constitutional Court 27 February 2018, E2124/2017, ECLI:AT:VFGH: 2018:E2124.2017. Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150. Directive 2011/95/EU of 13 December 2011 on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ 2011, L 337, 9, 20 December 2011. Aliens Police Act, n. 6. See also below 5.3. According to Article 46 Aliens Police, returnees have the obliga­ tion to contact the representations of the country of origin to obtain the necessary documents. The provision also allows that the authorities issue a written order obliging the person to obtain the necessary documents from the country of return. Only if this is not possible or if no documents are issued and this is not attributable to the returnee, the person does not violate the obligation. Mayr-Gadocha 2013, pp. 17–19. In order to understand the jurisprudence of the Constitutional Court, it is important to

have in mind that the Constitutional Court decides about alleged violations of the Con­ stitutional Law on the Implementation of the International Convention against Racial Discrimination. According to the jurisprudence based on Article 1 of the Constitu­ tional Law implementing the Convention against Racial Discrimination, non-nationals have to be treated equally and all distinctions have to be based on objective reasons. This provision protects against arbitrary distinctions and obligates the legislature and the execution. Bundesverfassungsgesetzes zur Durchführung des Internationalen Übereinkommens über die Beseitigung aller Formen rassischer Diskriminierung, FLG 390/1973. The jurisprudence started in 1994 with Federal Constitutional Court 2.7.1994, B1911/93, VfSlg 13836. Cf. for an analysis of the jurisprudence U. Brandl, ‘Judikatur zum materiellen Asyl­ recht’, in C. Filzwieser & I. Diver (eds.), Jahrbuch 18 Asyl- und Fremdenrecht, Vienna: NWV Verlag, 2018, pp. 113–127. Federal Constitutional Court 27 February 2018, E2124/2017. Country reports from 2015 are not sufficient for a decision issued in 2018. See also Federal Constitutional Court 21 September 2017, E905/2017. The country reports dated from 2012. Federal Constitutional Court 27 February 2018, E1848/2015. Federal Constitutional Court 30 November 2017, E2528/2017. Federal Constitutional Court 21 June 2017, E3074/2016. Federal Constitutional Court, 9 June 2017, E2687/2016. In this case, medical reports

about the status after FGM were not taken into account. Federal Constitutional Court

Human rights violations in expulsion cases 119 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46

47 48 49 50

51 52

21 September 2017, E786/2017. Actual country reports about the situation of homo­ sexual persons in Iraq have to be used as the basis for the reasoning. Act on Procedures before the Administrative Courts, n. 14. See also Article 21 para­ graph 7 Act on Procedures before the Office for Asylum and Aliens Affairs, n. 14. Supra, paragraph 2. High Administrative Court 28 May 2014, Ra 2014/20/0017. Federal Constitutional Court 26 February 2018, E3296/2017. Supra. For a general discussion of the notion effective remedy in expulsion cases see Carrera and Stefan (2019). Federal Constitutional Court 12 December 2017, E2068/2017. Federal Constitutional Court 11 October 2017, E1734/2017. The authorities may not grant a 14-day period in cases where the suspensive effect of the remedy has been denied. This suspensive effect may be denied or has to be denied for a number of reasons. See n. 12. Not only return decisions but also other types of administrative decisions oblige nonnationals to leave the state. Aliens Police Act, n 6. See also above 5.2. Cf. A. Schrefler-König, W. Szymanski, Fremdenpolizei- und Asylrecht, comm 1 ad Article 46 Aliens Police Act. See below 5.4.2. Article 130 Paragraph 1 2. Federal Constitution, n 4. Cf. I. Eisenberger, D. Ennöckl & W. Helm, Die Maßnahmebeschwerde, Vienna: Verlag Österreich, 2016. See above 5.3. See e.g. Federal Administrative Court 30 March 2017, BVwG W250 2140463–2, ECLI: AT:BVWG:2017:W250.2140463.2.00. An Indian national had stayed in Austria for nine years. He claimed that there would be an unjustified interference into his right to family life. He also claimed that his sudden deportation did not allow enough time to prepare his return. His application for a residence permit was still pending. The remedy was directed against the exercise of direct administrative power or compulsion (Article 130 (1) 2. and 132 (2) Austrian Constitution). The judge decided that the remedy is unfounded. Article 27a of the Aliens Police Act provides for the possibility that the authorities may issue a re-entry permission for nationals of states where no visa obligation exists, despite the fact that an entry ban is still valid. Article 148h, paragraph 3, of the Austrian Constitution. The NPM comprises the Aus­ trian Ombudsman Board and six regional multidisciplinary expert commissions. These commissions are appointed by the Board. See below 5.5. See below 5.5. Decree Implementing the Aliens Police Act (Fremdenpolizeigesetzdurchführungsver­ ordnung), FLG II No. 450/2005, Article 10. The consolidated version including all amendments is available on www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bund esnormen&Gesetzesnummer=20004469. Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regula­ tion (EC) No. 863/2007 of the European Parliament and of the Council, Council Regu­ lation (EC) No. 2007/2004 and Council Decision 2005/267/EC, OJ 2016 L 251, 1. Supra, Article 10 paragraph 3. Bericht der Volksanwaltschaft an den Nationalrat und an den Bundesrat (2014), ‘Band 2 Präventive Menschenrechtskontrolle.’ This criticism was already expressed by the former Human Rights Council in 2012. In 2013, the NPM initiated an ex officio examination.

120 53 54 55 56 57

58 59

60 61 62 63

64 65 66 67

68

69 70 71

Ulrike Brandl

Decree Implementing the Aliens Police Act, n. 48, Article 10, paragraph 2. Information has been gathered by telephone interviews. Aliens Police Act, n. 6. Austrian Criminal Code (Strafgesetzbuch), FLG 60/1974. The consolidated version

including all amendments is available on www.ris.bka.gv.at/GeltendeFassung.wxe?Ab frage=Bundesnormen&Gesetzesnummer=10002296. Austrian Ombudsman Board, Annual Report of the Austrian Ombudsman Board to the National Council and the Federal Council 2017, Vienna: Austrian Ombudsman Board, 2017, https://volksanwaltschaft.gv.at/downloads/etrnf/AOB%20Annual%20 Report%202017_GESAMT.pdf. See 19. 142 ff. According to the 2017 report (n. 50), the monitoring commission discovered that there was no interpreter present during the medical examination by public health officers to ascertain whether a woman was fit to fly. The woman apparently only knew a few words of German and the authorities were aware of a mental disorder. Cf. www.bmi.gv.at/408/Menschenrechtsbeirat/start.aspx. Austria: Visit 1990, CPT/Inf (91) 10, Section: 38/40, Date: 14/11/1990, paragraph 100, available on https://hudoc. cpt.coe.int/; and Austria: Visit 19901994, CPT/Inf (96) 28. Supra. Security Police Act, FLG I No. 146/1999, amended by FLG I No. 2/2008, see n. 2. Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 2002, A/RES/57/199, Article 3: ‘Each State Party shall set up, designate or maintain at the domestic level one or several visiting bod­ ies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism).’ See also Articles 17–23. Convention on the Rights of Persons with Disabilities 2007, A/RES/61/106, Article 16 paragraph 3. Federal Law Implementing the Optional Protocol to the Convention against Tor­ ture (OPCAT-Durchführungsgesetz), FLG I no 1/2012. For the consolidated version including all amendments, see n. 3. See for the Federal Law Implementing the Optional Protocol to the Convention against Torture n. 4. Since 2012, the Board carries out a completely new function. Before, the Board could only be contacted by persons who claimed that their rights had been violated. The Board could only react with non-binding recommendations. The ECtHR decided that this communication mechanism does not meet the criteria of an effective remedy, which was not the intention of the mechanism either. G. Kusco-Stadlmayer, ‘Die Volk­ sanwaltschaft als Nationaler Präventionsmechanismus’, Österreichische Juristenzei­ tung ÖJZ, Vol. 20, 2013, pp. 913–921; M. Vogl, ‘Der neue Menschenrechtsbeirat bei der Volksanwaltschaft’, in K. Giese, G. Holzinger & C. Jabloner (eds.), Verwaltung im demokratischen Rechtsstaat, Festschrift für Harald Stolzlechner zum 65, Geburtstag, Vienna: Verlag Österreich, 2013, pp. 679–703. See the website of the Austrian Ombudsman Board, where the advisory functions are enumerated: ‘It supports the Ombudsman Board in determining the focal points for monitoring procedures, issuing maladministration statements, developing recommen­ dations and ensuring consistent procedures and inspection standards.’ Supra, 109. Return Directive, n. 8. See at FRA, https://fra.europa.eu/sites/default/files/fra_uploads/forced_return_moni toring_overview_2017-06-10.pdf and https://fra.europa.eu/sites/default/files/fra_uploads/ forced_return_monitoring_overview_2017-06-10.pdf. In 2017, 47 flights were moni­ tored by 10 supervisors and in 2018, 58 flights were monitored by 10 supervisors.

Human rights violations in expulsion cases 121 72 See, for a detailed analysis and evaluation, W. Berka, ‘Zum Mandat und zur Stellung des Menschenrechtsbeirats im Rahmen des Menschenrechtsschutzes durch die Volk­ sanwaltschaft’, Newsletter Menschenrechte, Vol. 1, 2018, Leitartikel 3.

References Austrian Ombudsman Board (2017), ‘Annual Report of the Austrian Ombudsman Board to the National Council and the Federal Council 2017’, Vienna, Austrian Ombudsman Board, https://volksanwaltschaft.gv.at/downloads/etrnf/AOB%20Annual%20Report%20 2017_GESAMT.pdf. Bericht der Volksanwaltschaft an den Nationalrat und an den Bundesrat (2014), ‘Band 2 Präventive Menschenrechtskontrolle’. Berka, W. (2018), ‘Zum Mandat und zur Stellung des Menschenrechtsbeirats im Rahmen des Menschenrechtsschutzes durch die Volksanwaltschaft’, Newsletter Menschenrechte, No. 1, Leitartikel 3. Brandl, U. (2018), ‘Judikatur zum materiellen Asylrecht’, in C. Filzwieser & I. Diver (eds.), Jahrbuch 18 Asyl- und Fremdenrecht, Vienna: NWV Verlag, pp. 111–128. Carrera, S. & Stefan, M. (2019), ‘Justicing Europe’s Frontiers: Effective Access to Rem­ edies and Justice in Bordering and Expulsion Policies’, in S. Carrera & M. Stefan (eds.), Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immi­ grants in the European Union: Complaint Mechanisms and Access to Justice, Abingdon: Routledge. Eisenberger, I., Ennöckl, D. & Helm, W. (2016), Die Maßnahmebeschwerde, Vienna: Ver­ lag Österreich. FRA (2018), ‘Forced Return Monitoring Systems’, Vienna, European Union Agency for Fundamental Rights, http://fra.europa.eu/en/theme/asylum-migration-borders/forced­ return. Kusco-Stadlmayer, G. (2013), ‘Die Volksanwaltschaft als Nationaler Präventionsmecha­ nismus’, Österreichische Juristenzeitung (ÖJZ), No. 20, October, pp. 913–921. Mayr-Gadocha, W. (2013), ‘De facto nicht abschiebbare Personen und Anspruch auf Dul­ dung, in Plattform für Menschenrechte’, Salzburger Menschenrechtsbericht, Salzburg, Plattform für Menschenrechte, www.stadt-salzburg.at/pdf/salzburger_menschenrechts bericht_2013__plattform_f.pdf. Schrefler-König, A., Szymanski, W. (2018), Fremdenpolizei- und Asylrecht, Vienna: Manz. Vogl, M. (2013), ‘Der neue Menschenrechtsbeirat bei der Volksanwaltschaft’, in K. Giese, G. Holzinger & C. Jabloner (eds.), Verwaltung im demokratischen Rechtsstaat, Festschrift für Harald Stolzlechner zum 65. Geburtstag, Vienna: Verlag Österreich, pp. 679–704.

Part II

Complaint mechanisms in

the context of sea borders

and maritime surveillance

6

Police accountability and

human rights at the

Italian borders

Giuseppe Campesi

6.1 Introduction The tightening of border controls has intensified the structural violence exercised by borders, increasing as result the risks migrants1 face in their attempt at cir­ cumventing controls, putting their lives in danger along even more perilous and complex routes (Spijkerboer 2007; Shields 2015; Guild 2017), but it has also increased the risks of breach of their human rights by putting under strain the rule of law principles (Mitsilegas 2015). As it was emphasised by the United Nations High Commissioner for Human Rights (OHCHR), ‘policies aimed not at govern­ ing migration but rather at curtailing it at any cost, serve only to exacerbate risks posed to migrants, to create zones of lawlessness and impunity at borders, and, ultimately, to be ineffective’ (OHCHR 2014). Contemporary border control can encroach on a wide range of human rights, from the right to asylum and prohibition of torture and inhuman and degrading treatment, to the rights to privacy and data protection as well as non-discrimination (Mitsilegas 2015). In relation to the specific context of border control and surveil­ lance at sea, a report by the EU Fundamental Rights Agency (2013) has high­ lighted that migrants are at risk of: •

Having their right to life endangered, especially in the maritime context and in relation to the need to provide adequate assistance to persons in distress; • Suffering from excessive use of force and other ill treatments, both on board of rescue vessels and at disembarkation points, where the processing of migrants intercepted or rescued at sea is usually carried out; • Being denied the right to seek asylum and thus exposed to the risk of refoule­ ment both as a consequence of border surveillance practices and the eventual cooperation with third countries in the context of maritime surveillance, and as a consequence of an inadequate system at disembarkation points to iden­ tify protection needs at the borders; • Being arbitrarily detained in breach of Article 5 of the European Convention of Human Rights after disembarkation and in relation with administrative procedures following the irregular crossing of the borders.

126 Giuseppe Campesi In light of the risks of human rights violations, the OHCHR has underlined the significance of putting in place adequate mechanisms for exercising effective con­ trol over border control and surveillance practices. In particular, it has encouraged the states to develop forms of independent monitoring of human rights at inter­ national borders and to establish or strengthen systematic reporting mechanisms in order to ensure that all migrants who have suffered human rights abuses as a result of border governance measures have equal access to justice or other effec­ tive remedies providing adequate and prompt reparation for the harm suffered (OHCHR 2014). Border control policies have greatly evolved over the last two decades, becom­ ing one of the most relevant activities in which the police forces of main destina­ tion countries are currently engaged, although working in a complex network of relations with other public and private agencies (Weber & Bowling 2004). Given the extreme vulnerability of migrants to potential breaches of their human rights, and the extensive and ever-increasing powers over their personal freedoms border police are entrusted with, the effective protection of human rights at the borders is strongly related with the degree of accountability of the agencies performing bor­ der control functions. In this chapter, I will explore if and to what extent the cur­ rent accountability regime of the police and other security forces involved in the control and surveillance of Italian maritime borders is adequate to ensure effective protection of migrants’ human rights. In order to do this, I will first develop a typology of police accountability regimes, and then I will explore in more detail the accountability regime of the Italian police forces. Later I will use this analyti­ cal grid in order to evaluate whether the Italian police accountability regime is adequate to meet the challenges for the protection of migrants’ human rights at the Italian maritime borders.

6.2 Police accountability regimes Policing is one of the main public services provided by the state. The police have the task of guaranteeing peace and internal order, concepts that in a democratic polity generally coincide with the idea of guaranteeing human rights and funda­ mental freedoms of individuals. To fulfil this function, police are entrusted with extensive executive and coercive powers (Bittner 1970), powers that could be easily abused. Any action (or omission) of the police that violates legal rules is commonly defined as ‘police misconduct,’ but this concept encapsulates a quite heterogeneous group of activities (or omissions) (Kutnjak Ivkovic 2014). Police misconduct may range from corruption to excessive use of force. Moreover, given the inherently intrusiveness of the power police are entrusted with, their miscon­ duct may amount to a violation of basics human rights. The risk of police miscon­ duct is considered higher when police activity involves contacts with individuals characterised by low socioeconomic status or otherwise particularly vulnerable. How police are organised and monitored in the exercise of their powers are commonly considered crucial indicators of the democratic nature of the politi­ cal and social order (Jones, Newburn & Smith 1996, p. 187). This is commonly

Human rights at the Italian borders 127 referred to as ‘police accountability,’ which means that ‘the police accept being questioned about their decisions and actions and accept the consequences of being found guilty of misconduct, including sanctions and having to compensate vic­ tims’ (UNDOC 2011, p. 9). ‘Accountability’ is nevertheless an inherently complex concept. Broadly under­ stood, it refers to ideas such as ‘answerability,’ ‘responsiveness,’ ‘openness,’ and ‘efficient management,’ indicating both democratic policy making and respon­ sibility of those called upon to implement state policies. With specific reference to police accountability, Jones (2012, p. 694) has distinguished between the two different dimensions of ‘organisational’ and ‘individual’ accountability. The first refers to the democratic control exercised over the organisation of policing, the statutory definition of the powers police are entrusted with and the elaboration of their strategic priorities; the second refers to the process through which miscon­ duct is prevented, identified, and responded to after the act. While ‘individual’ accountability is undoubtedly related to ‘organisational’ accountability, given that both the institutional and political context may have an impact on police officers’ actions, it largely depends on distinct procedures and mechanisms aimed at pre­ venting human rights abuses and providing effective remedies when human rights standards are violated. The idea of ‘remedies’ against human rights violations include two different dimensions. The first is related with the process through which complaints on alleged human rights violations are heard, investigated, and decided by competent bodies; the second is related with the outcome of the procedure and the measures taken in response to an actual or potential violation of human rights (Shelton 2015, p. 16). The existence of remedial institutions and procedures to which vic­ tims may have access is expressly recognised by international and regional human rights instruments, therefore states need to establish a mechanism whereby people can seek redress if their rights have been violated.2 The possibility to file a complaint against the police is a clear indicator of high standards of accountability and is likely to help police in restoring or enhancing public confidence (ECHR 2009, p. 6; UNDOC 2011, p. 33; Johansen 2013, p. 446). This notwithstanding, from a socio-political point of view, police accountability cannot be reduced to the legal notion of ‘effective remedy.’ Even when considered in the restricted sense of ‘individual’ accountability, this should be considered as a conglomeration of different regimes where compensation and prevention should go hand in hand. In an attempt at building a typology of police accountability regimes, I will first distinguish between internal/external mecha­ nisms, depending on whether the procedure is run by the police themselves or is placed under the responsibility of an independent body, and reactive/proac­ tive mechanisms, depending on whether the procedure may be triggered by the autonomous investigation of the oversight body or on account of a complaint filed by the individual concerned or other stakeholders. I will then further distinguish accountability regimes according to the measures taken in response to an actual or potential violation of human rights and the envisaged purpose of the remedies offered to victims of police misconduct.

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Under internal procedures, police misconduct is investigated by the police themselves and accountability is assured through the chain of command (discipli­ nary control) or by setting up oversight bodies to which abuses may be reported (internal complaint mechanisms). Disciplinary procedures represent a traditional layer of misconduct control that are activated proactively by supervisors but are often too focused on assuring officers’ compliance with superiors’ orders or with standard operational procedures, while the victims’ interests are not always taken into consideration nor are victims even considered legitimate parties to the proceedings. A disciplinary offence is essentially seen as a ‘neglect of duty’ and treated as such, though when the individual misconduct amount to a criminal offence, a judicial proceeding can run in parallel to the internal disciplinary pro­ cedure. The police may also establish complaint mechanisms in order to deal with cases of misconduct reported by individuals. While characterised by a certain degree of civil involvement or established as a separate internal affairs unit in order to dispel public concerns on their ability to carry out unbiased and unpar­ tisan investigations, internal complaint bodies are nevertheless part of the police organisation and thus inherently exposed to the risk that police solidarity can pre­ vent adequate accountability (Prenzler & Ronken 2001). External accountability procedures are usually more credible in the eyes of the public because they are believed to be unaffected by police esprit de corps. One of the most important external accountability procedures is judicial control over police exercise of executive and coercive powers, through which police are, in fact, held accountable to the law. The relationship between law and policing is absolutely central to the idea of the accountability of policing (Dixon 1992). The judiciary may exercise control on the legitimacy of police action both ex ante, when the recourse to executive and coercive powers must be previously authorised by a judge, or ex post, when the steps taken by the police need to be judicially validated. Police are also accountable to the judiciary when their mis­ conduct amounts to criminal offence or causes damage to a third party. A legal suit may be filed against individual police officers, or even against the agency as a whole, to seek redress for the damage suffered due to officers’ misconduct. While civil litigation is considered as one of the strongest deterrents against police misbehaviour (Smith 2004), in many jurisdictions police officers are covered by insurance or otherwise protected from paying the financial penalties incurred by their misconduct. When police misconduct amounts to a criminal offence, the prosecutorial power of investigation can usually be exercised ex officio, or as a consequence of a complaint received from the individual concerned or other stakeholders. Unfortunately, given the high standard of proof of the criminal jus­ tice system, its inherently limited accessibility, and traditional professional links between prosecutorial offices and the police, only a small amount of police mis­ conduct results in prosecution and eventually conviction (Skolnick & Fyfe 1993). Besides judicial remedies, complementary nonjudicial bodies may be author­ ised to have oversight for police action and receive complaints on police mis­ conduct. According to what has been defined as the ‘civilian review model’ (Prenzler & Ronken 2001), an external agency may be called to monitor internal

Human rights at the Italian borders 129 investigations conducted by the police, eventually with the power to conduct its own investigation in most controversial cases. In other cases, a fully independent nonjudicial body may be established with the power to receive and investigate complaints on police misconduct. In many countries, specialised external police complaint bodies have been established in recent years (Johansen 2013), while in other countries institutions for the promotion and protection of human rights may include in their mandate the oversight of police activities. Nonjudicial remedies should nevertheless not be considered as substitutes for ordinary judicial or disciplinary procedures. Even when nonjudicial oversight bodies are vested with the power to receive and investigate individual complaints, they generally lack the capacity to prosecute or sanction the individual concerned and must instead report misconduct to competent authorities for a judicial or dis­ ciplinary follow-up. Through their oversight function and the correlative power to initiate investigations on their own, human rights and police complaint bodies are important tools for facilitating access to effective remedies to victims of police misconduct, especially when these are in a particular weak position, such as being themselves implicated in illicit activities or otherwise exposed to police reprisal. The primary purposes of the remedies offered against police misconduct should be to rectify the wrong done and correct injustice. This is the main reason behind the possibility to challenge before a judge the exercise of executive powers by the police when this touches individuals’ rights. Offering redress to victims is the most common solution, especially in cases when rectification is no longer pos­ sible. Compensation restores victims’ welfare and reaffirms their rights, though in many cases the injuries caused by human rights violations are intangibles, while victims’ desire for revenge needs to find satisfaction through a public condem­ nation of perpetrators. In criminal and disciplinary proceedings, the purpose of the remedy offered to victims is the condemnation of police misconduct. Punish­ ment does not constitute a restitution or a compensation to the victim, but it is the way through which the binding force of rules is reaffirmed, and perpetrators are deterred to commit further wrongs. The sanctions applicable in disciplinary proceedings typically range from verbal warnings, written warnings, cuts in sal­ ary, working without pay, demotion, and dismissal. Although they are usually less intrusive than criminal sanctions, such as fines or imprisonment, in many circumstances they may have a stronger deterrent effect than criminal liability as it is usually extremely difficult to have a police officer prosecuted and eventually convicted. An effective system of police accountability will need much more than a com­ plaint mechanism; this is especially so as police misconduct often amounts to human rights violations which are inherently different from purely private inju­ ries. Remedies for public wrongs must be seen, then, as serving not only private redress but public policy as an important means of promoting police compliance with human rights standards (Shelton 2015, p. 61). The need to prevent future misconduct should be a central concern in the functioning of oversight and com­ plaint mechanisms, whereby forward-looking strategies aimed at early detection and at providing sufficient guarantee of non-repetition must be put in place. In

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particular, complaint mechanisms should function as a learning process providing useful guidance in identifying patterns of misconduct and developing organisa­ tional remedies, such as the revision of operational standards and/or of working conditions that can prevent misconduct in the future.

6.3 Police accountability in Italy Italy has traditionally had a complex institutional framework for maintaining peace and internal order, an endeavour to which several law enforcement and security agencies contribute (Bellavita 1962). According to Italian law,3 other agencies alongside State Police are called to perform functions as ‘police forces’ for the purpose of protecting public order and internal security, this being the Carabinieri and the Guardia di Finanza, which are both gendarmerie-type forces with military status and officially belonging to the armed forces (Chiappetti 1987; Corso 1996).4 Moreover, in the last decades of the twentieth century, the functions performed by armed forces have clearly expanded beyond the mere defence of the state from external military threats (Edmundus 2006; Easton, de Boer & Janssens 2010), an evolution that in Italy has been consolidated with the reform of the mili­ tary law in 2010, which in particular cases assigns to armed forces (especially the Army and the Navy) responsibilities in the protection of public order and internal security of the state (Chiti 2017).5 This complex institutional framework greatly complicates the accountability regime of the Italian police. In spite of the fact that in performing their duties for the protection of the public order and internal security, all police forces are functionally dependent on the Ministry of the Interior. The Italian gendarmeries are subject to military discipline and jurisdiction, and are also under the authority of different ministries.6 This may produce a lack of coordination among police forces, somewhat complicating the lines of their political accountability. All the personnel of the agencies performing function as police forces are pub­ lic employees and therefore subject to the general rules of public service, but a number of specific rules regulate their status. These rules greatly accentuate the bond of subordination to superiors, producing what Italian legal scholars have defined as a kind of ‘special submission’ to the chain of command (Baldanza 2003, p. 344; Caia 1996, p. 346). This is especially true for ‘militarised’ police forces, given that discipline ‘constitutes the fundamental rule for military person­ nel’ and is commonly considered the ‘main factor of cohesion and efficiency’ of the armed forces (Bortolotti 1989; Malinconico 1990).7 Nevertheless, it is also true of State Police, allegedly the only ‘civilian’ security force in Italy, which in fact continues to be organised according to a logic of hierarchical subordination clearly differentiating it from other ‘civil’ branches of the public administration (Carrata 1986). In spite of the attempts at their ‘democratisation,’ the first carried out in 1978, with the reform in the principles on ‘military discipline,’8 and the second in 1981 with the ‘de-militarisation’ of State Police,9 Italian law enforcement and security agencies thus retain their traditional hierarchical and disciplinary structure. All

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police officers, both civil and military, are subject to a specific duty of subordina­ tion,10 being required to follow the orders received form their superior.11 In fact, the failed or delayed execution of an order is considered a crime,12 as well as having disciplinary consequences. The reforms enacted in 1978 and 1981 have, however, tried to dilute the principle of hierarchical subordination, affirming that obedience should not be blind and absolute but ‘conscious’ (Bortolotti 1989; Car­ rata 1986). This means that police officers must not execute orders that ‘mani­ festly’ constitute a criminal offence, reporting them to superiors,13 while they must request explicit confirmation of the orders that appear in breach of the law.14 In all circumstances in which they had the duty to question the legitimacy of the order received, police officers remain responsible for the criminal offences committed in the execution of it.15 This raises the problem of the attitude the officer must assume when an order is given which, although not constituting ‘manifestly’ a criminal offence, neverthe­ less represents a potential violation of the rights of the individuals concerned. The legitimacy of the order can be questioned, but if the order is confirmed the officer will still be subject to the duty of obedience. In these cases, the norms regulating police officers’ behaviour clearly support the principle of hierarchical subordina­ tion, and this in light of the alleged need to assure the efficiency of the adminis­ trative action. This is nevertheless done at the expenses of the protection of the rights of those who could suffer the consequences of the illegitimate action of police forces, whose protection is ultimately left to the competence and good will of the high-ranking officials. Moreover, it is difficult to avoid the impression that police officers are required to assume two incompatible attitudes: obey promptly and at the same time reflect on the legitimacy of the orders received (Iafrate 2016, p. 320). It is therefore highly probable that the tendency to obey will prevail over the willingness of police officers to identify the potential human rights conse­ quences of the orders received, thus reducing the capacity of the system to prevent potential police misconduct. To compensate for the increased risk of breach of individuals’ human rights that the typical hierarchical and disciplinary structure of Italian police entails, a strong and effective regime of police accountability would be required. Unfortunately, it is precisely what Italy lacks. The powers attributed to police forces and the scope of their action, in particu­ lar as regards the possibility of limiting the human rights of individuals, are essen­ tially set by the Italian Constitution (Chiappetti 1987; Corso 1996), according to which the police can encroach on individuals’ fundamental freedoms only within the limits established by statutory law and under strict judicial oversight.16 As pub­ lic employees, all members of Italian police forces, civil or military, are subject to the ordinary rules on civil and criminal liability for acts committed in violation of individuals’ rights and damages caused to third parties or to the administra­ tion.17 The individual responsibility of police officers subsists whether the breach has been caused by a wrongful action or by an omission or unjustified delay in the execution of duties,18 but when damage has been caused by an officer during his service, the administration is also held responsible for the injuries suffered

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by third parties and can claim against the officer only if he has acted in breach of his duties.19 On the basis of this principle of ‘organic identification’ between the public employee and the administration, it is exceptional having individual police officers being called to compensate for the damages suffered by third parties. Of course, the situation changes when the damage is the consequence of a criminal offence, as this produces a caesura in the institutional link between the individual officer and the public administration. As mentioned, all police officers are subject to ordinary criminal jurisdiction for common crimes, with the sole exception of the right to serve any sentence to imprisonment in a military penal establishment.20 Crimes committed by police officers can be reported by anyone to the prosecutorial authorities and are gener­ ally prosecuted ex officio. Some categories of crimes of particular concern for the prevention of police misconduct are nevertheless prosecuted only if victims file a complaint, and this may reduce access to justice especially for victims in a socially weak position. This is, for example, the case of police ill-treatment and excessive use of force, which according to Article 582 of the Italian Criminal Code cannot be prosecuted if the victim has not filed a complaint, thus produc­ ing a situation that has been defined as of substantial impunity for police and law enforcement officials (UN Human Rights Committee 2017, § 21). Under another point of view, police officers are instead subject to more strin­ gent controls than ordinary citizens, since superiors have the duty to report to the prosecutorial authorities any criminal offence committed by their subordinates.21 Furthermore, police officers may be suspended from the service for the duration of the criminal proceedings, and in the event of a final conviction for particularly serious crimes, they may also be demoted or dismissed (Carrata 1986; Malin­ conico 1990). All this produces a substantial intersection between judicial and disciplinary control over police action. The disciplinary proceeding remains, however, distinct from the criminal pro­ ceeding, although the latter may have direct disciplinary consequences. The term ‘disciplinary offence’ means any conduct of a police officer who fails to comply with the regulations or with an order received.22 Disciplinary sanctions range from punishments with an eminently ‘moral’ or ‘corrective’ purpose, such as oral or written warnings, to suspension form service, demotion, or dismissal sanctioning most serious misconduct. The military personnel can also be subjected to disci­ plinary sanctions amounting to a deprivation of liberty, which much of the Italian legal scholars (Malinconico 1990, p. 287; Bortolotti 1989, p. 2) now consider in clear breach of the rule set forth by the Italian Constitution on the protection of personal liberty. In spite of the attempts made over the years at clarifying and specifying the rules on police officers’ good conduct, high-ranking officials are still vested with a huge discretional power in defining what actually consists of a disciplinary offence (Carrata 1986, p. 169; Bortolotti 1989, p. 4). The disciplinary control system of the Italian security forces is, in fact, more a means of assuring the officers’ compli­ ance with superior’s orders than a mechanism for protecting the rights of third par­ ties. Individual misconduct is thus essentially treated as a form of insubordination

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and viewed only from the point of view of the need to ensure internal discipline. This is true to the point that disciplinary offences can be reported only by hierar­ chical superiors and the disciplinary proceeding is entirely entrusted to internal bodies, scarcely distinguished from hierarchical lines of command, who carry out the investigation and decide the case without any possibility for participation of or control from third parties. Except for acts which amount to a criminal offense and for which a criminal proceeding has been initiated, there is no assurance that an individual incident of misconduct will lead to open a disciplinary proceeding and eventually to a punishment. In many respects, this system of legal, judicial, and disciplinary accountabil­ ity is not adequate to compensate for the increased risks of police misbehaviour deriving from the typical hierarchical and ‘paramilitary’ structure of Italian police forces. While it cannot be argued that, in strict legal terms, Italy is devoid of ‘effective remedies’ against the breach of fundamental rights committed by police officers, it must be emphasised that the only existing independent external control over police action, that is, judicial control, is rather difficult to be accessed, espe­ cially for people in conditions of vulnerability or weak social position. Discipli­ nary control, on the other hand, is completely impermeable to any involvement of external third parties. Individuals can in no way submit complaints, nor is there any independent body that can in any way receive, investigate, decide a com­ plaint, or stimulate the hierarchies to investigate alleged misconduct committed by police officers. This is clearly the expression of an anachronistic conception of disciplinary control, which is seen more as tool for ensuring officers’ subordina­ tion to hierarchies, than as instrument for preventing potential breaches of the human rights of individuals concerned by police action. Beyond these traditional instruments of police accountability, there are no other ways in Italy to make law enforcement and security agencies accountable for their misconduct. Besides having never established an independent police complaint body, Italy is also lacking a general independent National Human Rights Body and has been urged by the UN Human Rights Committee to ‘expeditiously estab­ lish a national human rights institution in compliance with the principles relating to the status of national institutions for the promotion and protection of human rights’ (UN Human Rights Committee 2017, § 7). A bill proposing the establish­ ment of such an institution was being discussed in Parliament during the previous legislature,23 but it is unclear what will be its fate after the general elections of March 2018, that saw a change in the ruling coalition. Having ratified the Optional protocol to the UN Convention against torture in 2012,24 Italy has now identified the National Ombudsman on the Rights of Detain­ ees25 as its National Prevention Mechanism under the Protocol. The Ombudsman was established in 2013,26 but became fully operational only in 2016 with the appointment of the members of its Collegiate Panel. It exercises its mandate with full independence from the executive, even if its staff is provided by the Min­ istry of Justice. The Ombudsman is vested with the power to visit all places of custody, including those placed near main disembarkation points or dedicated to the custody of irregular migrants in the process of being deported, but it cannot

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receive and process individual complaints. This notwithstanding, its role remains of great importance in preventing police misconduct, mostly in light of its power to publish reports and issue recommendations to the Italian government on how to prevent torture and other ill treatment in all places of custody. In addition to this, the Ombudsman has recently been vested with the power to monitor forced repatriations in compliance with Article 8(6) of the Directive 2008/115/EC. During the past legislature, a number of Parliamentary Commissions,27 and especially the Extraordinary Commission on Human Rights established by the Senate in 2013 in partial compensation for the lack of a proper Human Rights Body,28 have carried out inspections and inquiries, and have published reports addressing the issue of the protection of human rights in relation to law enforce­ ment action. Although not explicitly conceived as a tool to collect and process complaints on individual cases of police misconduct, Parliamentary commissions have somewhat compensated for the shortcomings of the current Italian police accountability regime, holding the executive at least politically responsible for law enforcement and security forces’ action. The problem is that some of these Parliamentary commissions do not deal with human rights breaches and police misbehaviour on a permanent basis. Moreover, the Extraordinary Commission on Human Rights established by the Senate is temporary, although a motion approved in July 2018 has suggested the possibility to replace it with a permanent Human Rights Commission that should somehow act as Human Rights Body.29

6.4 Border policing, accountability, and human rights in Italy Over time, Italy has developed a complex institutional apparatus for the control of irregular migration by sea, further strengthening it with the adoption of the Law No. 189/2002 that amended the Legislative Decree No. 286/1998, the Italian Consolidated Law on Immigration. Italian Law explicitly conceives the control of irregular migration by sea as an ‘interagency’ task whose strategic leadership is assigned to the Interior Ministry. The latter has the duty of promoting coordi­ nation between the relevant Italian authorities and EU agencies, as well as, in coordination with the Ministry of Foreign Affairs, the duty of promoting agree­ ments with countries of origin and/or transit aiming at fostering the ‘cooperation in the fight against illegal immigration.’30 In 2002, a new Central Direction for Immigration and Border Police (CDIBP) was established under the Department of Public Security at the Ministry of Interior, which was entrusted with the overall coordination of border control policies. The arrangements for coordination between the different law enforcement and security agencies that, under the leadership of the CDIBP, are entrusted with the task of enforcing controls at maritime borders were further specified in 2003 with the enactment of a Ministry of Interior’s Decree which identified three main stra­ tegic dimensions for the control of irregular migration by sea. The first dimension consists of activities carried out in countries of origin and/ or transit, eventually under the umbrella of bilateral cooperation agreements.31

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According to a model that many defined as ‘extraterritorial’ border governance (Cremona & Rijpma 2007; Mitsilegas 2010), the aim of the cooperation is to anticipate control activities by acting in foreign territorial waters so as to inter­ cept vessels carrying migrants even before they can leave the jurisdiction of the country of origin and/or transit. The EU has in recent years sought to incorporate cooperation in the field of migration control within the diplomatic framework of its wider neighbourhood policies (Lavenex 2006; Jeandesboz 2009), but in spite of these attempts, bilateral cooperation between member-states and their closest neighbours remains a key in the organisation of ‘local border control regimes’ in the Euro-Mediterranean region (Kasparek & Wagner 2012). The second dimension consists of activities carried out in international waters, where the Italian Navy is called to exercise its prerogatives in the monitoring, surveillance, identification, and control of ‘naval targets’ at sea and in the fight against ‘illegal immigration.’32 The Italian Navy has traditionally been the key actor in the surveillance of the high seas since the late nineties when it was also increasingly mobilised for the control of irregular migration. This is one of the most relevant examples of the involvement of the Italian armed forces in the implementation of law enforcement policies; this action was officially authorised by the enactment of the Law No. 189/2002. Since then, the Italian Navy has put in place a permanent activity at sea ‘aimed at the localisation, identification and tracking of vessels suspected of smuggling, through the use of all the available aero-naval equipment’ (Ministero per i rapporti con il Parlamento 2004, p. 112). Since 2004, the Italian Navy is also deployed on a permanent basis for the control of irregular migration in the Strait of Sicily and occasionally in the lower Adriatic and in the Ionian Sea. The third dimension consists of activities carried out in territorial waters and the contiguous zone, where border controls and immigration law enforcement are mainly entrusted to the Guardia di Finanza,33 whereas the Coast Guard is responsible for the coordination of search and rescue.34 The Guardia di Finanza has traditionally played the role of customs police, being mainly concerned with economic crimes such as contraband and tax evasion. Over the years, its remit has been extended to cover all cross-border challenges, ranging from undocu­ mented migration to trafficking in drugs and arms. The Guardia di Finanza is now entrusted with exclusive responsibility for border control at sea in the ter­ ritorial waters and the contiguous zone (Ministero dell’Interno 2000, p. 176), and its paramilitary apparatus, originally developed for the fight against the smug­ gling of illicit drugs, has been gradually upgraded and converted to the control of irregular migration by sea. Since 2006, the action of the Guardia di Finanza has been further supported by the action of the EU agency Frontex, which over the last ten years has launched a number of joint operations in the Central Mediter­ ranean region, focusing mainly on the patrol of the Strait of Sicily (Campesi 2015, pp. 176–185). A fourth strategic dimension in the control of irregular migration by sea may be identified by the administrative procedures carried out by the Italian State Police in the processing centres located near the main disembarkation points. Italy has

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been equipped with first aid and reception facilities since the mid-1990s, when the first processing centres were established according to Decree No. 451/1995. These facilities, originally labelled as Centri di Primo Soccorso e Assistenza (CPSA), are usually run by private bodies, to which the Ministry of Interior con­ tracts out the provision of services, while the processing of incoming migrants is performed by Italian State Police which, in cooperation with the Italian Army, is also responsible for security and public order inside the facilities.35 Unfortu­ nately, Italian law has never clarified the main features of such facilities, which in theory were designed to accommodate migrants just landed on Italian shores for the time strictly necessary for first aid and identification. Over the years, CPSAs had acquired the characteristics of secure facilities, where migrants waited in detention for several weeks before being released or transferred to other reception facilities. This had happened in the absence of any judicial oversight, and this is one of the reasons why many had described CPSAs truly as ‘legal black holes’ where migrants’ habeas corpus was systematically violated (Campesi 2013). This is a point of view now also supported by the European Court of Human Rights Khlaifia case.36 In 2015, in the wake of the increase in the number of incoming migrants by sea and in order to make checks at main disembarkation points more effective and ensure proper implementation of the rules on the registration of irregular migrants and asylum-seekers set forth by Regulation (EU) No. 603/2013, the EU Com­ mission launched the so-called ‘hotspot approach’ (Neville, Sy & Rigon 2016). The plan, drawn up with the adoption of the EU Agenda on Migration (European Commission 2015a) and developed with the publishing of a number of subse­ quent policy papers (European Commission 2015b, 2015c), was presented as a tool designed to ‘assist’ Greece and Italy to ‘swiftly identify, register and fin­ gerprint incoming migrants’ (European Commission 2015a, p. 6). The ‘hotspot approach’ has been officially implemented in Italy with the enactment of the Leg­ islative Decree No. 142/2015 and of the Decree No. 13/2017, which partly revised the legal basis for the reception of migrants after disembarkation. According to Article 8 of Legislative Decree No. 142/2015, the ‘first reception’ of those reach­ ing Italian shores should be carried out in the facilities already set up under the rules enacted in the mid-1990s (that is, in the old CPSAs), while according to the Article 17 of the Decree No. 13/2017, every ‘foreigner’ intercepted while attempt­ ing to irregularly cross the border or disembarked on the Italian soil as a result of rescue operations at sea, should be conducted ‘for the needs of first aid and assistance’ to the ‘hotspot facilities’ set up in the old CPSAs, or to other disembar­ kation points,37 where ‘all identification and fingerprinting procedures are carried out,’ and information on the procedure for requesting international protection, on the relocation program, and on the possibilities for voluntary return is provided. The Italian border control strategy thus relies on the role played by differ­ ent actors operating at different institutional levels and in different operational contexts (see Figure 6.1). This produces a complex geopolitics of border control and surveillance activities taking place in a wide frontier zone expanding from the high seas (or even foreign territorial waters), where Italian security forces

Human rights at the Italian borders 137 Cooperation with third countries

Navy ,.--

· ..

Frontex

Guardia di Finanza

Coast Guard

Processing Centres

Territorial waters and contiguouswnc

lntemationalwato:n

Figure 6.1 Italian geopolitics of sea border control and surveillance activities

cooperate with third countries’ security forces and coast guards under the umbrella of a number of agreements and memorandum of understandings, to the network of processing centres existing near main disembarkation points and functioning according to the policy framework drawn with the implementation of the ‘hotspot approach.’ This complex border control apparatus is largely entrusted to the political responsibility of the Ministry of the Interior, which coordinates the operational activity of various law enforcement and security agencies, in particular of State Police, Guardia di Finanza, and the Italian Navy, in addition to the Coast Guard, a special branch of the Italian Navy acting under the authority of the Ministry of Transport and responsible for the Italian Maritime Rescue Coordination Centre. This apparatus suffers from a general lack of oversight mechanisms, which derives from the inherently weak accountability regime of Italian police and secu­ rity forces on which we focused in the previous section, but beyond this, two more specific blind spots of accountability in border control practices can be singled out here. One is related to the overall policy and operational framework in which bor­ der surveillance takes place; the other is related to the implementation of screen­ ing procedures at main disembarkation points. 6.4.1 Border surveillance Border surveillance takes place on the high seas or other out-of-sight loca­ tions where it is extremely difficult to access justice before disembarkation. In

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the operational context of border surveillance performed by the Italian security agencies, there is a complete lack of independent oversight mechanisms. Once rescued at sea and before disembarkation, migrants are under the absolute and complete control of immigration law enforcement agencies and thus at risk of being refouled or of suffering from excessive use of force and other ill treatment without any possibility to file a complaint. Of particular concern in this case are the recent endeavours of the Italian government aiming at establishing a stable cooperation with the Libyan Government of National Accord (GNA) led by Fayez Al-Serraj and at reducing the role played by NGO vessels in search and rescue activities in the Strait of Sicily (Heller & Pezzani 2018). Immediately after the GNA was installed, the EU began negotiations to obtain its consent to an extension of the EU Common Defence and Security Mission ‘EU NAVFOR Med-Sophia’ operations on Libyan territory, as well as to the resump­ tion of the technical assistance interrupted in 2013. Italy has strongly supported such diplomatic initiatives with the clear aim of reaching a cooperation agreement with Libya similar to the one signed between the EU and Turkey (Rettman 2016). The negotiations focused on creating the preconditions necessary to operate in Libya with the cooperation of the new government’s security forces. The empha­ sis has thus been placed on the need to rebuild Libya’s security apparatus. As a result, in June 2016 ‘EU NAVFOR Med-Sophia’ was finally prolonged for one year, with a significant extension of its mandate as it was entrusted with the task of providing technical assistance to the Libyan coast guard and navy. Meanwhile, Italy has made every effort to reach an agreement with the new Libyan govern­ ment, finally agreeing a much-criticised MoU in February 2017 (Nielsen 2017). The steps taken by the Italian government were greeted with great favour by EU partners (European Council 2017), who immediately supported the Italian initiative by mobilising 1.8 billion Euros from the EU Trust Fund for Africa for cooperation projects with Libya. Key for the EU and Italian strategy was the strengthening of the operational capabilities of the Libyan Coast Guard, which was expected to play a central role in managing Libyan maritime borders and ensuring safe disembarkation on Libyan soil of migrants intercepted and rescued at sea (European Commission 2017). Italy, in particular, by signing a new MoU with Libyan authorities, aimed at resuming cooperation on security and irregular migration according to past bilateral agreements. Since February 2017, the Libyan coast guard has thus been supported by the Italian authorities in its effort to take control of its search and rescue region, intercepting vessels upon departure and diverting them back on Libyan soil, where migrants are to be hosted in ‘reception’ centres pending their repatriation or voluntary return to their country of origin. The rate of migrants intercepted by Libyan authorities and disembarked on Lib­ yan soil has thus increased steadily (Heller & Pezzani 2018, p. 53) in the absence of any monitoring or accountability mechanisms ensuring that the resources and support provided to Libyan authorities to strengthen their search and rescue and migration control capacities are not contributing to human rights abuses. Serious concerns have been raised about the links between armed groups, criminal groups, and different coast guard factions, as documented in a report published by a UN

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panel of experts monitoring the political transition in Libya (UN Security Coun­ cil 2017). The report also described numerous violations of fundamental rights suffered by migrants hosted in ‘reception’ centres after interception at sea. Simi­ lar concerns have been expressed by some NGOs (Human Rights Watch 2017; Amnesty International 2017) and especially by the OHCHR which, in light of the ‘horrific’ reception conditions in Libya, has defined the policy of assisting the Libyan coast guard to intercept and return migrants in the Mediterranean as ‘an outrage to the conscience of humanity’ (OHCHR 2017). In parallel with the increase in the number of migrants intercepted by Libyan authorities, a violent campaign was launched aimed at delegitimising, criminalis­ ing, and ultimately ousting from the Central Mediterranean scenario the NGOs performing search and rescue activities (Heller & Pezzani 2017). In the midst of this violent campaign, the Italian government enacted a Code of Conduct to officially discipline nongovernmental SAR activities but in fact compromising NGOs’ ability to effectively conduct their humanitarian mission free of politi­ cal and police interference (Cusumano 2017). These endeavours have not only produced an inversion in the role played by NGOs and the Libyan Coast Guard, with the latter aggressively asserting its role as the main search and rescue actor in the Central Mediterranean but have above all reduced the number of independent observers operating on the high seas. This has greatly complicated the possibility to produce evidence on potential human rights abuses perpetrated during border surveillance activities, as many of the most controversial incidents occurring over the last two years could be documented only thanks to the presence of NGOs’ vessels. The decrease in rescue NGOs’ presence has clearly left maritime space off the Libyan coast clear for the Libyan Coast Guard to intercept migrants and pull them back to Libya but has also offered the possibility for Italian authorities to hand over the coordination of rescue activities to Libyan authorities, thus in fact implementing with impunity a strategy that the authors of the Mare Clausum report aptly defined as ‘refoulement by proxy’ (Heller & Pezzani 2018, p. 66). 6.4.2 Screening procedures at disembarkation Screening procedures at main disembarkation points take place under the frame­ work of the so-called ‘hotspot approach,’ the implementation of which has sparked many criticisms, especially with regard to the risk of prolonged deten­ tion in absence of a clear legal provision and of any judicial oversight. In par­ ticular, many pointed out the weakness of the legal basis according to which the ‘hotspot approach’ has been implemented in Italy (Benvenuti 2018). The plan of the Italian government is, in fact, to channel all arrivals into the so-called ‘hotspot facilities’ located near key ‘disembarkation points’ where the new oper­ ating procedures (Ministero dell’Interno 2015, p. 2016) developed by the Ital­ ian government in accordance with what has been envisaged by the EU Agenda on Migration will apply. In spite of Article 11 of the Legislative Decree No. 142/2015 describing these facilities as places that offer first aid and assistance to incoming migrants by sea, and Article 8 of the Decree No. 13/2017 making

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reference to ‘reception centres’ as the places where all incoming migrants should be sent in order to be properly processed according to the rules set forth by the Regulation (EU) No. 603/2013, ‘hotspots facilities’ have been, in fact, managed as secure facilities through which multiple control and containment functions are performed (Campesi 2018). The implementation of the hotspot approach has attracted much criticism also in relation to poor detention conditions, ill treatment during detention, insufficient provision of legal information and erroneous classification of potential asylum seekers as economic migrants during the pre-identification stage, and excessive use of force during the identification process, especially against those resisting fingerprinting (Amnesty International 2016; ECRE 2017). The risks of violating migrants’ fundamental rights during processing procedures after disembarkation are also greatly amplified by the fact that ‘hotspot facilities’ are not easily accessi­ ble and thus kept away from public scrutiny. In addition to being located in remote places or in ‘militarised’ areas, they cannot be freely accessed, and anyone wish­ ing to visit them must obtain an authorisation from local police authorities accord­ ing to the rules regulating access in immigration-related custodial facilities.38 In spite of the attempt at keeping hotspot procedures out of civil society over­ sight, the treatment received by migrants at main disembarkation points has attracted much attention, especially thanks to the monitoring function performed by Parliamentary commissions of inquiry, which carried out a number of inspec­ tions, held hearings with high ranking officials from the Ministry of Interior, and published several reports which were widely debated (Senato della Repubblica 2014, 2017a, 2017b; Camera dei Deputati 2017); and finally, by the National Ombudsman on the Rights of Detainees, which has carried out several field visits and published a number of recommendations addressed to the Italian government regarding detention conditions in ‘hotspot facilities’ (Garante Nazionale dei diritti dei Detenuti 2017). These oversight exercises have led to the condemnation of a number of illegal practices, forcing the Italian government to partially revise its operating proce­ dures at main disembarkation points, especially with regard to the practice of detaining migrants until the finalisation of the identification process and the pos­ sibility to made recourse to coercive means in order to win the resistance of those refusing fingerprinting. In particular, in 2017 it has been finally clarified that resorting to coercion is not authorised under any circumstances and that those resisting fingerprinting can at most be ‘sanctioned’ with prolonged detention in one of the existing detention centres for irregular migrants.39 In spite of the some­ what positive impact on Italian policy that these forms of political accountability have had, a number of questions still need to be addressed, in particular with regard to the weak legal framework in relation to pre-admittance detention, and the absence of any form of judicial oversight on it; also of concern is the absence of any systematic independent monitoring on disembarkation and screening pro­ cedures, especially when they take place outside the places that have been offi­ cially designed as ‘hotspot facilities.’

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6.5 Closing remarks Whether one is ready or not to consider states as directly responsible for the human consequences of the structural violence exercised over migrants through their increasingly complex and sophisticated border control strategies, one can concede following Spijkerboer (2007) that being inherently dangerous for migrants’ life, border control policies should be inspired by the humanitarian principle of ‘harm reduction.’ This means that states should consider themselves under the obligation to take all the preventive measures to safeguard the lives of those who are put at risk by the structural violence of border control policies. By bringing this argu­ ment a step further, one can also argue that states must also implement systems that reduce the risk of violating migrants’ human rights during border surveillance and border control activities, especially by reinforcing the accountability of the security agencies involved and by improving the accessibility and effectiveness of the remedial system. From the analysis of the Italian case, an apparent paradox emerges. If we stick to the formal definition of ‘legal remedy,’ one could certainly argue that Italy has in place a clear legal framework with respect to the judicial accountability of law enforcement and security agencies, but this is in no way effective as a remedial system for the protection of migrants’ rights. The judicial system is costly, not eas­ ily accessible for individuals in a particularly weak position and, given the high standard of proof required, hardly able to provide victims of police misconduct with prompt and immediate redress. In its concluding observations to the sixth periodic report on Italy, the UN Human Rights Committee (2017) underlined with concern the substantial impunity of Italian police forces in cases of alleged ill treatment and other instances of violations of human rights. In fact, the report suggested that judicial remedies are not always the most effective way to prevent police misconduct. To make things worse, it must be remembered that in the case of border control policies, the road to judicial remedies is in some cases de jure or de facto pre­ cluded. As our analysis of Italian border control policies has showed, migrants detained at main disembarkation points are not in a position to ask a judge for rectification of their unjust detention; in the absence of systematic independent monitoring on border surveillance practices, many migrants will be never be in a position to file a claim or report to the judiciary the violation of their human rights. The main alternatives to judicial accountability are not adequately developed. The disciplinary accountability system is particularly backward, as it is essen­ tially devoted to ensuring the internal discipline of law enforcement and security agencies, not to addressing the complaints filed by victims of police misconduct or other stakeholders. In addition, despite of the National Ombudsman on the Rights of Detainees gradually positioning itself as a key agency for the moni­ toring of border control practices, especially when migrants are taken into cus­ tody by immigration law enforcement agencies, the absence of a National Human Rights Body makes it more complicated to exercise systematic and independent

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monitoring on a complex border control apparatus to which many different law enforcement and security agencies contribute. In recent years, the active role of the Italian Parliament and of civil society have provided for alternative forms of political accountability compensating for the lack or inadequacies of ordinary forms of judicial and disciplinary accountability of law enforcement and security agencies. These forms of political accountability have proved to be somewhat effective in monitoring state practice, especially at main disembarkation points, triggering a learning process that stimulated a par­ tial revision of the operating procedures adopted in the processing of incoming migrants. Nevertheless, these alternative accountability and oversight mecha­ nisms continue to suffer from a number of gaps. In fact, border control and sur­ veillance policies are often implemented in widely dispersed and ‘out-of-sight’ locations and operational contexts, thus seriously limiting the effectiveness of the existing safeguards against potential human rights abuses at the Italian borders and of any attempt by civil society at keeping an eye on governmental action. In conclusion, the peculiar geopolitics of border control policies exacerbates the rigidity of the Italian police accountability regime, which is largely based on the protection offered by the judicial system and lacks more flexible complaint or oversight mechanisms.

Notes 1 In this chapter, I will use the term ‘migrants’ to refer both to those whose mobility is driven by a desire to better their living conditions and to those whose mobility is triggered by the necessity to seek protection from danger. In spite of the fact that the distinction between ‘economic’ and ‘forced’ migrants is overtly criticised in social and political sciences (Castles 2003), it is still a cornerstone of the contemporary interna­ tional migration legal regime. Therefore, labelling migrants as ‘economic’ or ‘forced’ is never a neutral exercise, especially in light of the fact that the right to mobility of ‘economic’ migrants is always put in question and essentially made dependent on state discretion. However, the risks of human rights violations related to border control prac­ tices obviously do not only concern potential asylum seekers but migrants at large. 2 See, in particular, Article 8 of the Universal Declaration on Human Rights; Article 2(3) of the International Covenant on Civil and Political Rights; Article 13 of the European Convention on Human Rights; Article 47 of the EU Charter of Fundamental Rights. For an overview of international and regional standards and a working definition of ‘effective remedy,’ see Chapter 1. 3 Article 16 Law No. 121/1981. 4 For a definition of ‘gendarmerie’ see Lutterbeck 2013. 5 See article 93, Legislative Decree No. 66/2010. 6 While the Carabinieri are under the authority of the Ministry of Defence, the Guardia di Finanza is under the authority of the Ministry of Finance. 7 Article 1346, Legislative Decree No. 66/2010. 8 Law No. 382/1978, then refused in the new Military Code, Legislative Decree No. 66/2010. 9 Law No. 121/1981. 10 Article 65, Law No. 121/1981 and Article 1346(3), Legislative Decree No. 66/2010. 11 Article 66, Law No. 121/1981 and Article 1347, Legislative Decree No. 66/2010.

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12 Article 72, Law No. 121/1981 and Article 173, Italian Military Criminal Code for Times of Peace. 13 Article 66(4), Law No. 121/1981 and Article 1349(2), Legislative Decree No. 66/2010. 14 Article 66(3), Law No. 121/1891 and Article 729(2) Presidential Decree No. 90/2010. 15 Article 51, Italian Criminal Code. 16 This means that any police action resulting in a limitation of the exercise of funda­ mental freedoms must be authorised ex ante by a judge or otherwise validated ex post when, in case of necessity, the police was forced to act without a previous judicial authorisation. 17 Article 28, Italian Constitution. 18 Article 23, Presidential Decree No. 3/1957. 19 Articles 22 and 18, Presidential Decree No. 3/1957. 20 Article 79, Law No. 121/1981 and Article 63, Italian Military Criminal Code for Times

of Peace. 21 Article 331, Italian Code of Criminal Procedure. 22 Article 11, Presidential Decree No. 737/1981 and Article 1352, Legislative Decree No. 66/2010. 23 Senate of the Republic, Bill No. S-1908. 24 Law No. 195/2012.

25 Garante nazionale dei diritti delle persone private della libertà personale, see www.

garantenazionaleprivatiliberta.it/gnpl/ (last accessed: August 2018). 26 Article 7 Decree No. 146/2013. 27 The Parliamentary Commission of Inquiry on the Facilities for the Reception and Detention of Migrants (established in November 2014) has played a role in monitor­ ing police activities in place of custody for migrants, and the permanent Commission on National Defence of the Senate has occasionally explored the role of the Navy in controlling Italian external borders. 28 Senate of the Republic, Motion No. 1–00007, Session No. 13, April 16, 2013. 29 Senate of the Republic, Motion No. 1–00003, Session No. 19, July 19, 2018. 30 Article 11-bis, Legislative Decree No. 286/1998. 31 Article 2(1), Ministry of Interior Decree of 14 July 2003. 32 Article 3(2), Ministry of Interior Decree of 14 July 2003. 33 Article 3(1), Ministry of Interior Decree of 14 July 2003. 34 Article 2(2), Ministry of Interior Decree of 14 July 2003. 35 Article 9, Circular Order of the Ministry of Interior No. 12700/2014. 36 Khlaifia and Others v. Italy, Application No. 16483/12, Final Judgment (Grand Cham­ ber) Dec. 15, 2016. 37 A policy paper published by the Italian Interior Ministry defines these as ‘mobile hotspots’ where teams ready to be dispatched to different disembarkation points according to the needs may ensure the implementing of the ‘hotspot approach’ also outside the places officially operating as ‘hotspot facilities’ (Ministero dell’Interno 2016, p. 7). 38 Article 6, Circular Order of the Ministry of Interior No. 12700/2014. 39 Article 17(3) Decree No. 13/2017.

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Human rights at the Italian borders 145 Edmundus, T. (2006), ‘What Are Armed Forces for? The Changing Nature of Military Roles in Europe’, International Affairs, Vol. 82, No. 6, pp. 1059–1075. European Commission (2015a), ‘A European Agenda on Migration’, Brussels (COM(2015) 240 final). European Commission (2015b), ‘Managing the Refugee Crisis: Immediate Operational, Budgetary and Legal Measures Under the European Agenda on Migration’, Brussels (COM(2015) 490 final). European Commission (2015c), ‘Managing the Refugee Crisis: State of Play of the Imple­ mentation of the Priority Actions Under the European Agenda on Migration’, Brussels (COM(2015) 510 final). European Commission (2017), ‘Action Plan on Measures to Support Italy, Reduce Pressure Along the Central Mediterranean Route and Increase Solidarity’, Brussels (SEC(2017) 339). European Council (2017), ‘Malta Declaration by the members of the European Council on the External Aspects of Migration: Addressing the Central Mediterranean Route’, Press Release 43/17. Fundamental Rights Agency (2013), ‘Fundamental Rights at Europe’s Southern Sea Bor­ ders’, Luxemburg, Publications Office of the European Union. Garante nazionale dei diritti dei detenuti (2017), ‘Rapporto sulle visite nei Centri di iden­ tificazione ed espulsione e negli hotspot in Italia’, www.garantenazionaleprivatilib­ erta.it/gnpl/resources/cms/documents/6f1e672a7da965c06482090d4dca4f9c.pdf (last accessed: August 2018). Guild, E. (2017), ‘The Dark Side of Globalization’, in T. Gammeltoft-Hansen & J. Ved­ sted-Hansen (eds.), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and Migration Control, London: Routledge, pp. 314–331. Heller, C. & Pezzani, L. (2017), ‘Blaming the Rescuers’, https://blamingtherescuers.org/ report/ (last accessed: August 2018). Heller, C. & Pezzani, L. (2018), ‘Mare Clausum. Italy and the EU’s Undeclared Opera­ tion to Stem Migration Across the Mediterranean’, www.forensic-architecture.org/wpcontent/uploads/2018/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf (last accessed: August 2018). Human Rights Watch (2017), ‘Italy: Navy Support for Libya May Endanger Migrants’, www.hrw.org/news/2017/08/02/italy-navy-support-libya-may-endanger-migrants (last accessed: August 2018). Iafrate, C. (2016), ‘Obbedienza, ordine illegittimo e ordinamento militare’, Diritto e Ques­ tioni Pubbliche, Vol. 16, No. 2, pp. 313–336. Jeandesboz, J. (2009), ‘The Genesis of the European Neighbourhood Policy: Alternative Narratives, Bureaucratic Competitions’, in T. Balzacq (ed.), The Frontiers of Govern­ ance: Understanding the External Dimension of EU Justice and Home Affairs, New York: Palgrave Macmillan, pp. 35–64. Johansen, A. (2013), ‘The Rise and Rise of Independent Police Complaint Bodies’, in J.M. Brown (ed.), The Future of Policing, Abingdon: Routledge, pp. 446–462. Jones, T. (2012), ‘The Accountability of Policing’, in T. Newburn (ed.), Handbook of Policing, London: Routledge, pp. 693–724. Jones, T., Newburn, T. & Smith, D.J. (1996), ‘Policing and the Idea of Democracy’, British Journal of Criminology, Vol. 36, No. 2, pp. 182–198. Kasparek, B. & Wagner, F. (2012), ‘Local Border Regimes or a Homogeneous External Border? The Case of the European Union’s Border Agency Frontex’, in M. Geiger & A.

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7

Search and rescue, disembarkation, and relocation arrangements in the Mediterranean Justicing maritime border

surveillance operations

Sergio Carrera and Roberto Cortinovis

7.1 Introduction This chapter examines the specific issues characterising effective access to justice in the context of Search and Rescue (SAR) and disembarkation of persons found in distress at sea in the Mediterranean. It examines the main obstacles to accessing effective remedies for individuals whose human rights are negatively affected dur­ ing SAR activities in the context of EU maritime border surveillance operations as well as in the scope of post-disembarkation activities, including the relocation of disembarked asylum seekers to other European Union (EU) member states. The ‘closed ports’ policy declared by the Italian government in the summer of 2018, and the ensuing refusal to let nongovernmental organisation (NGO) ships conducting SAR operations enter Italian ports, triggered new diplomatic confrontations with other EU governments regarding which state should assume responsibility for accepting disembarkation of rescued people (ECRE 2019). Dis­ embarkation issues reignited in a context characterised by a widening gap in SAR capabilities in the Central Mediterranean resulting from a progressive strategic disengagement from SAR activities by the EU and its member states (Amnesty International 2018; UNHCR 2019a). Far from being a novelty, current disputes over SAR and disembarkation unfold against the background of long-standing disagreements among Mediterranean coastal governments over the interpreta­ tion and applicability of the law of the sea (Papastavridis 2017; Moreno-Lax & Papastavridis 2016; Parliamentary Assembly of the Council of Europe 2012). Since the summer of 2018, repeated ‘standoffs’ between EU member states forced rescued individuals into a prolonged period at sea in precarious and unsafe conditions. In this context, cases of disembarkation following SAR operations conducted by NGOs and other vessels in the Central Mediterranean have been addressed through so-called ad hoc or ‘temporary’ disembarkation and reloca­ tion arrangements. These arrangements have consisted of voluntary, ‘ship-byship’ relocation schemes, involving a small group of member state governments ‘willing’ to accept a share of individuals disembarked in Spain, Malta, and Italy (ECRE 2019). A profound lack of public accountability has characterised the implementation of these arrangements, including regarding the number of people

Disembarkation and relocation arrangements 149 disembarked and relocated, participating member states, and respect of the rights of relocated asylum seekers (Carrera and Cortinovis, 2019a). This chapter aims at critically examining recent developments on SAR, disem­ barkation, and relocation arrangements in the Mediterranean, with a special focus on Italy, which is the main destination for migrants crossing the Central Mediter­ ranean route connecting North Africa to Europe. It puts into question the assump­ tion that policies and practices of ‘contained mobility’ and ‘contactless control’ currently implemented by EU and member states’ authorities in the Mediterranean are legitimate migration management strategies (Carrera and Cortinovis 2019b; Moreno-Lax & Giuffré 2017). These policies have included, first, the gradual operational disengagement from SAR activities by the EU and its member states, in particular, as a consequence of the reduction of the operational scope of Frontex Joint Maritime Operation Themis and the withdrawal of the naval means and SAR-related activities of EUNAVFOR-MED operation ‘Sophia.’ Second, the delegation of containment tasks to Libyan authorities, through the provision of funding, training, and equip­ ment aimed at increasing the capacity of the Libyan Coast Guard to conduct unlawful interdiction operations at sea (so-called pullbacks). Third, the imple­ mentation of ad hoc and informal disembarkation and relocation arrangements following SAR operations involving the participation of EU member states on a voluntary basis, which escape accountability and prevent access to justice through effective complaint mechanisms. In this chapter we contend that disengagement from SAR operations, indirect support to ‘pullbacks’ in unsafe countries, refusal of disembarkation of migrants rescued at sea, and the informalisation of relocation procedures for people in need of international protection increase the obstacles and challenges of effec­ tive access to justice and limit in fundamental ways possibilities and venues for individuals to lodge complaints in cases of human rights violations, misconduct, and ill-treatment by EU member states and third-countries’ authorities. However, while practices of SAR disengagement have been deliberately designed with the aim of escaping legal accountabilities and liabilities, we argue that these same practices fall within the scope of international and EU justice venues, actors and instruments. We explore in particular the potential of the notion of ‘portable jus­ tice’ as applied to the EU legal system to ensure that different authorities respon­ sible for controlling and managing migration and asylum in sea operations are effectively captured by the rule of law framework they are bound to when acting within the scope of EU law (Carrera and Stefan in this volume). We conclude that, when justice venues and complaint mechanisms to ascertain and address poten­ tial human rights violations exist, and are accessible and effective, they have the potential to bring effective justice to victims of fundamental rights violations in the context of SAR operations. After this Introduction, we outline the evolution of the SAR scenario in the Central Mediterranean over the last few years, underlining the main aspects of what we call the ‘politics of SAR disengagement and informalisation.’ We then discuss the main opportunities and limitations of existing legal obligations and

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accountability venues in the field of SAR and disembarkation stemming from the law of the sea, international and regional human rights standards, and secondary EU legislation in the field of border surveillance and asylum. Specific attention is paid to the mandate and operational roles in this area assigned to the EU agen­ cies Frontex and EASO. While these two agencies are often understood as mere ‘facilitators’ or ‘coordinators’ of member states’ authorities autonomous deci­ sions, operational support and assistance provided by these agencies in a number of human rights sensitive areas (including border surveillance operations and asy­ lum procedures) could lead to ‘chain responsibility’ with EU member states’ and third-country authorities for potential human rights violations.

7.2 The politics of SAR disengagement and the informalisation of disembarkation and relocation arrangements 7.2.1 Shrinking SAR operational space and delegating containment Basaran (2014) has underlined how in recent years ‘an increasing number of laws, regulations and practices on national, regional and international levels have effec­ tively discouraged rescue at sea and encouraged seafarers to look away, leading to the incremental institutionalisation of a norm of indifference to the lives of migrants.’ EU policy developments continued this worrying course of action dur­ ing 2018 and 2019. EU member state politics of SAR disengagement have included a tactical choice to reduce the mandate and operational area of the Frontex Joint Operation (JO) Themis in the Central Mediterranean, which was launched in February 2018 to replace the previous JO Triton (initiated in 2014).1 A key change in the mandate of JO Themis was the reduction of its operational area to the Italian SAR region, thus excluding the Maltese SAR region, which instead used to be covered by operation Triton (Frontex Consultative Forum 2018, p. 36). The Maltese govern­ ment refused to take part in JO Themis in the absence of a clear rule foresee­ ing the disembarkation in Italian ports of people rescued in the Maltese SAR region, which was the case under Triton’s operational plan based on a bilateral deal between Italy and Malta.2 Under JO Themis’ mandate, disembarkation points are instead identified on a ‘case-by-case’ basis by the Italian Maritime Rescue and Coordination Centre (MRCC) on ‘the basis of international law’.3 The limited involvement of JO Themis in SAR activities is just the last step in a process of disengagement from SAR activities in the Central Mediterranean that was initiated with the choice in 2014 to replace the Italian Naval Operation Mare Nostrum with the much less ambitious (in terms of SAR capacity) Frontex-led JO Triton (Carrera & den Hertog 2015). As Table 7.1 below shows, the overall result of this choice has been an increasingly and progressively minor involvement and contribution by Frontex in SAR operations in the Central Mediterranean. Divisions between member states on disembarkation have also led to a downgrading of the Common Security and Defence Policy (CSDP) operation

Disembarkation and relocation arrangements 151 Table 7.1 Number of persons rescued under the coordination of Italian MRCC and number of people returned to Libya by the Libyan Coast Guard

Italian Coast Guard (Guardia Costiera) Italian Military (Marina Militare) Guardia di Finanza Carabinieri Foreign Military Vessels EUNAVFOR-MED Sophia Operation Commercial Vessels Civil Society and NGOs Frontex TOTAL13 People rescued/intercepted by Libyan Coast Guard14

2016

2017

2018

35,875 36,084 1,693 174 7,404 22,885 13,888 46,796 13,616 178,415 14,332

22,014 5,913 1,184 79 1,495 10,669 11,355 46,601 14,976 114,286 15,358

3,987 642 1,842 215 42 2,310 1,438 5,204 4,046 19,778 15,235

201912 40

97 35 172 2,887

Source: Authors’ own elaboration based on statistics provided by Italian Coast Guard, Frontex, and UNHCR

EUNAVFOR-MED Sophia, launched in 2015 with the main goal of disrupting ‘human smuggling and trafficking networks in the Southern Central Mediterra­ nean.’4 While SAR was not formally included in the mandate of the mission, since its inception in 2015, units deployed by the operation are reported to have rescued around 49,000 migrants.5 At the end of 2018, the continuation of Operation Sophia became a source of contention between participating member states after a request by the Italian gov­ ernment to revise the mandate of the mission, and specifically the rule according to which all asylum seekers rescued in the framework of the mission should be disembarked in Italian ports.6 Due to the impossibility to reach an agreement on a new disembarkation rule, in March 2019, participating states decided to prolong the mission for a further six months but without deploying naval assets (to avoid involvement in SAR operations), focusing instead on air patrols and training of the Libyan Coast Guard (EEAS 2019). The stepping up of the Libyan Coast Guard in SAR operations in the Cen­ tral Mediterranean constituted another key development (UNHCR 2019a). This development is directly related to the choice of the Italian government to progres­ sively cede control to Libyan forces over SAR operations outside Libyan territo­ rial waters. Italy had assumed de facto SAR responsibilities over this area since 2013, when it began its Mare Nostrum operation. Libyan authorities submitted a declaration on a Libyan Search and Rescue Region (SRR) in December 2017, which was then officially validated by the International Maritime Organisation (IMO) in June 2018.7 The Libyan move was made possible by the financial and operational support (including the sharing of information of sighting of boats through EU satellite information systems) provided to the Libyan authorities by the EU and Italian authorities. According to a leaked letter signed by the Direc­ tor General of DG Home at the European Commission, Paraskevi Michou, and

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addressed to the Frontex Director, Fabrice Leggeri, on 18 March 2019,8 the Com­ mission considered that it would be lawful for the operational plan of JO Themis to include procedures for notifying sightings of boats in ‘distress’ at sea to the Libyan Coast Guard, including data on vessel monitoring and detection through satellite technology that is part of the EUROSUR (The European Border Surveil­ lance System) Fusion Services.9 The letter also revealed that the aerial assets of the EUNAVFOR MED Sophia operation had shared similar information with the Libyan authorities. The position of the European Commission laid down in the above-mentioned letter stands in stark contradiction with the fact that several authoritative United Nations actors have clearly emphasised that Libya cannot be considered as a ‘safe port’ and that ‘those rescued and intercepted at sea should not be returned there’ (OHCHR & UNSMIL 2018; IOM 2019; UNHCR 2019c). The letter also surpris­ ingly disregards the incompatibility and unlawfulness inherent in EU agencies indirectly cooperating with Libyan authorities in sharing information on ‘sight­ ings’ and therefore facilitating and being complicit with interceptions and ‘pull­ backs’ leading to violations of the principle of non-refoulement and other severe human rights violations. As Table 7.1 below shows, the number of migrants rescued at sea in the Cen­ tral Mediterranean has substantially decreased over the last four years. However, the politics of disengagement from SAR operations, coupled with the increas­ ing criminalisation of nongovernmental organisations (NGOs) conducting SAR activities in the Mediterranean (Campesi in this volume), have contributed to making migrant journeys across the Mediterranean even more dangerous than in the past. According to UNHCR, an estimated 1,311 migrants lost their lives along the Central Mediterranean route connecting Libya to Italy during 2018. While the total number of deaths along this route more than halved in 2018 compared to 2017, the rate of deaths per number of people attempting the journey increased sharply. In particular, the rate went from one death for every 38 arrivals in 2017 to one for every 14 arrivals in 2018, and to one death for every 3 arrivals in the first four months of 2019 (UNHCR 2019a, 2019b).10 Furthermore, the decrease in the number of entries cannot hide the high number of people prevented from leaving Libyan territory and exposed to grave human rights violations and crimes against humanity. Table 7.1 shows how the total number of people ‘rescued or intercepted’ by the Libyan Coast Guard authorities increased during 2017 and 2018 to more than 15,000 people each year. According to UNHCR, during the second half of 2018, 85% of individuals rescued or inter­ cepted11 in the newly established Libyan SAR region were disembarked in Libya, where they faced inhuman and degrading treatment in Libyan detention centres (UNHCR 2019a). 7.2.2 Ad hoc disembarkation and relocation arrangements Against the background of member states’ disagreements over SAR and disem­ barkation responsibilities described in the previous section, since the summer

Disembarkation and relocation arrangements 153 of 2018, cases of disembarkation following SAR operations conducted by civil society vessels (and in a few cases by state vessels) have been addressed through new instruments called ad hoc or ‘temporary’ disembarkation and relocation arrangements (Carrera & Cortinovis 2019a). Far from representing a common EU policy response, these ‘arrangements’ have in practice involved a small group of member states willing to relocate a share of disembarked asylum seek­ ers in Spain, Italy, and Malta. Apart from a few media articles, there has been very little public knowledge and disclosed information about them. Unlike the 2015 ‘emergency relocation decisions,’15 there is not any official document lay­ ing down the actual rules and procedures covering these arrangements. Inter­ views conducted by the authors revealed that the member states concerned did not want to have any written record or bring any public accountability to these arrangements. The arrangements have mainly covered situations of migrants rescued in inter­ national waters by civil society actor boats and for which there is no agreement between EU member states, notably between Italy and Malta, over who should take responsibility for disembarkation. The arrangements have been described as ad hoc in nature and have followed a ‘boat-by-boat approach’ aimed at breaking political standoffs between governments forbidding or delaying disembarkation in their ports (ECRE 2019). While labelled as ‘practical solutions’ or as expressions of ‘pragmatism’ by some of the EU policymakers interviewed by the authors, their informal and extra-EU Treaty nature raises serious concerns regarding their compliance with EU asylum standards, EU Treaty principles, and fundamental rights. Cases have been reported of asylum applicants disembarked in Malta who have been arbitrar­ ily detained until their transfer to other member states, without allowing them the possibility to lodge an asylum claim. Similarly, it has been reported that per­ sons disembarked in Spain have been subject to transfer procedures under ad hoc arrangements without prior registration of their asylum claim and without recep­ tion conditions in line with existing EU asylum standards (ECRE 2019). Since early 2019, upon request from concerned member states, the European Commission has started coordinating the implementation of ad hoc disembarka­ tion and relocation arrangements. During an ‘exchange of views on “temporary arrangements” in the asylum policy’ with the European Parliament LIBE Com­ mittee in February 2019, the Commission stated the need for an ‘organised form of coordination’ and a ‘commonly agreed voluntary framework.’ It mentioned recent cases in which the Commission was providing ‘coordination and assis­ tance’ to involved member states with the deployment of a representative on the ground, as well as financial support to the implementation of these arrangements through the EU budget and specifically the AMIF emergency funding (Article 18 of AMIF Regulation). EU agencies, chiefly EASO and Frontex, have been mobilised to provide support to member state authorities in dealing with specific procedural steps following the disembarkation of rescued persons. The role of Frontex has been mainly focused on identification and nationality determination, fingerprinting, and registration of

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disembarked individuals in EU information systems such as EURODAC and the Schengen Information System (SIS) II, upon request of concerned member states. EASO has played a more substantive role in both Malta and Italy. EASO’s sup­ port in the context of ad hoc relocation arrangements is formalised through a ‘bilat­ eral exchange of letters’ with the requesting EU member state government, laying down the ‘terms’ of EASO support, and providing the bases for EASO involve­ ment in the arrangements. EASO support has materialised in the provision of infor­ mation on the international protection procedure, registration of applications for international protection for relocation purposes, and the selection and matching processes of applicants to be relocated (preparation of selection/matching lists). As described in more detail in section 7.3.4 below, through its involvement in relocation arrangements EASO is ‘operating in a grey zone’ as the range of activi­ ties carried out in the context of ad hoc arrangements are not clearly reflected in its current mandate. The exact implementation procedure of relocation arrangements was described by the Commission in terms of a ‘workflow’ or ‘step-by-step work plan’ that would ensure that the Member State concerned receives the operational and effec­ tive assistance it needs from the Commission, EU agencies and other Member States’ (European Commission 2019). The concept of ‘workflow’ has, in practice, meant that the Commission and EU agencies are only involved at very specific phases of the relocation procedure and are allowed by member states to perform only a weak role consisting of a limited number of well-defined tasks. Neither are the Commission and EU agencies exercising any monitoring role on the extent to which Malta and Italy, or any of the receiving member states, are applying the guarantees envisaged in the EU Dublin Regulation, or the impacts of the arrange­ ments on the rights of asylum seekers, including the respect of the principle of non-discrimination based on country of origin laid down in Art. 3 of the 1951 Geneva Convention.16 Interviews conducted by the authors have revealed that EASO officials argue that the Agency is not ‘directly involved’ in the actual implementation of the relocation procedure, and the decision on who is to be relocated and where, which remains with the member states concerned. Yet, as underlined in more details in section 7.3.4 below, the limited involvement of EASO in the ‘work­ flow’ does not exonerate the agency from ‘chain responsibility’ for possible human rights violations resulting from the entire procedure (Carrera, den Hertog & Parkin 2013). In particular, informality by design characterising ad hoc arrangements increases the risk of discriminatory practices (e.g. selection of applicants to be relocated on the basis of nationality criteria) already identified in the case of the two 2015 ‘emergency relocation decisions’, and raises concerns about serious violations of fundamental rights similar to those associated with the implementa­ tion of the ‘hotspots’ approach, which continue to provide the overarching oper­ ational framework under which disembarkation and relocation procedures take place (Guild, Costello & Moreno-Lax 2017; Campesi in this volume).

Disembarkation and relocation arrangements 155

7.3 Safeguarding human rights in the context of SAR and disembarkation operations: accountability instruments and justice venues The range of policies aimed at restricting SAR capacities in the Central Mediter­ ranean described above needs to be read as components or ‘layers’ of a broader strategy of ‘contained-mobility’ whose aim is that of deterring, limiting, and fil­ tering asylum seekers’ movements at different stages of their mobility trajectories (see Figure 7.1). This contained mobility strategy combines a number of measures aimed at preventing people from leaving third-country territories and entering the Schengen area – e.g. border surveillance and interception at sea – along with lim­ ited mobility opportunities, in the forms of selective and discriminatory admission and intra-EU relocation opportunities for refugees and applicants for international protection (Carrera & Cortinovis 2019). Figure 7.1 identifies the set of legal, political, and financial instruments used to implement the contained-mobility approach, which are of financial, political, legal, and operational nature, and which have increasingly been designed as extraEU Treaties. The two last fields of the figure lay down the main international, regional, and EU legal instruments, as well as a selection of monitoring, judicial, and administrative actors acting as ‘justice venues’ with a mandate to scrutinise, enforce, or adjudicate on individuals’ cases and complaints.17 While unlawful practices and human rights violations emerging from ‘contained mobility’ prac­ tices and instruments still experience substantial barriers when it comes to ensur­ ing effective justice to victims, they can nonetheless be potentially captured by existing accountability venues at the international, regional, and national levels. The multilayered containment approach enacted by the EU and some EU mem­ ber state governments in the Mediterranean seems to be based on the assumption that EU member states can in fact be ‘exonerated’ of their legal responsibilities and escape existing accountability venues (Hathaway & Gammeltoft-Hansen, 2015). However, ‘contained mobility’ instruments at sea fall within the scope of international and regional standards laid down in the law of the sea (section 7.3.1), international human rights law (section 7.3.2) and EU rules on maritime and bor­ der surveillance (section 7.3.3) and pose profound challenges to their faithful implementation (Moreno-Lax & Papastavridis 2016; Carrera et al. 2018). As pointed out by the introductory chapter of this volume, the concepts of port­ able responsibility and portable justice in the context of EU law entails that com­ pliance with the standards laid down in the EU Charter of Fundamental Rights (CFR) is required for any kind of initiative, action or omission falling under the scope of EU law or of an ‘autonomous EU law concept’ provided in the EU bor­ ders, asylum and visa acquis.18 These include compliance with the right to asylum (Article 18) and to an effective remedy (Article 47) under the EU CFR. The same lawfulness test in light of the Treaties and EU fundamental rights standards need to be applied when the EU and its Member States cooperate with third country authorities – directly or even indirectly through the provision of

Readmission Agreements

Arrangements

Disembarkation

Relocation and

Hotspots

NGO boats and fines

Prosecution, Confiscation of

Code of Conduct for NGOs,

Italy and Libya (MoU)

Understanding between

Memorandum of

Eurosur

Operation

Frontex Themis Joint

Operation

EUNAVFOR-MED Sophia

EU Funds (Trust Fund)

INSTRUMENTS

Source: Authors, 2019.

Figure 7.1 Contained mobility and portable justice

Relocation & Expulsions

Detention and retention

of people rescued

Refusing disembarkation

civil society

Policing and criminalizing

SAR Operational Capacity

Reducing/Disengaging in

Sea (Pull Backs)

Guard on Interceptions at

Training Libyan Coast

CONTAINED MOBILITY LAYERS

Union secondary law

Fundamental Rights and

EU Treaties, EU Charter of

Conventions

UNCLOS, SOLAS and SAR

Rome Statute

State Responsibility

Commission Articles of

International Law

Cruel, Inhuman and . Degradmg Treatment

against Torture, and Other

International Convention

Civil and Political Rights

International Covenant on

Human Rights

Universal Declaration of

United Nations Charter &

tt

INTERNATIONAL & REGIONAL STANDARDS

national ombudspersons

European Ombudsman and

and national auditors

European Court of Auditors

Courts)

and national courts (EU

Court of Justice of the EU

European Court of Human . R1ghts

lnternational Criminal Court

Torture

UN Committee against

Committee

UN Human Rights

UN Security Council

JUSTICE VENUES

Disembarkation and relocation arrangements 157 ‘support’ in the form of funding, training, equipment – and irrespective of ter­ ritoriality or the degree of ‘control’ and ‘authority’ over individuals (Carrera et al. 2018). In the following part of this chapter, we explore how relevant human rights guarantees applying in the context of SAR and disembarkation operations can be enforced through the existing accountability venues available at the international and EU levels. 7.3.1 International law of the sea The 1982 United Nations Convention on the Law of Sea (UNCLOS) lays down in Article 98 a duty to every state to render assistance to any person found in danger at sea and to proceed with all possible speed to the rescue of persons in distress. The UNCLOS Convention also foresees the need for coastal states to establish, operate, and maintain adequate and effective SAR services, which may include cooperation with neighbouring states and the conclusion of mutual regional arrangements (Article 98.2).19 Similar requirements are included in the 1974 International Convention for the Safeguard of Life at Sea (SOLAS Conven­ tion), specifically the obligation for shipmasters to provide ‘with all speed’ assis­ tance at sea.20 The SOLAS Convention also states the need for states to ensure that ‘any necessary arrangements are made for coast watching and for the rescue of persons in distress at sea round its coasts’ and to communicate and coordinate SAR activities, including through the establishment of SAR facilities. The 1979 International Convention on Maritime Search and Rescue (the socalled SAR Convention), stipulates a common definition of ‘rescue’ entailing ‘an operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety’ (emphasis added).21 The SAR Con­ vention underlines the need for states to set up a Search and Rescue Region (SRR) and a Maritime Rescue Coordination Centre (MRCC) responsible for ‘promoting efficient organisation of search and rescue services and for coordinating the con­ duct of search and rescue operations’ within their respective SAR region. Papastavridis has argued that a key shortcoming of the international Law of the Sea framework is that ‘it does not formally obligate the coastal State responsible for the Search and Rescue Area to disembark rescued persons on its own territory, but only impose rather an obligation of conduct’ (Papastavridis 2017, 2018). Spe­ cifically, 2004 amendments to the SOLAS and SAR Conventions stipulates that the SAR responsible state is ‘primarily responsible’ for ‘ensuring such co-ordination and cooperation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety’. While interpretation of the 2004 amendments to the SOLAS and SAR Conventions based on the principle of effec­ tiveness would lend support to a default obligation of disembarkation on the SAR responsible state, divergent practices and interpretations of states underline how this is still a matter of contention (Papastavridis, 2018).22 The law of the sea requires delivery of rescued persons as soon as possible to a ‘place of safety’, a notion that is nevertheless not defined either in the SOLAS or

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in the SAR Convention. To address this gap, in 2004 the International Maritime Organization (IMO) issued ‘Guidelines on the Treatment of Persons Rescued At Sea’ which state the need, in the case of persons seeking international protec­ tion ‘to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened.’ UNHCR has underlined that the place of safety concept must correspond with a place where rescued persons are not at any risk of persecution and where asylum seekers have access to fair and efficient asylum procedures and reception conditions (UNHCR 2002). As is further developed in section 7.3.3, EU maritime surveillance rules provide for a clearer EU concept of ‘place of safety’ that is international protec­ tion and fundamental rights driven. 7.3.2 International, regional, and EU human rights standards The relevant provisions laid down in the international legal regime governing SAR at sea and disembarkation outlined in the previous section should be read in light of relevant human rights standards, including those covering the right to respect and protect life, the respect of the non-refoulement principle and the prohibition to expose people to death, torture, or inhuman and degrading treat­ ment, and the right to life (Moreno-Lax and Papastavridis, 2016). All these are enshrined not only in the 1951 UN Refugee Convention but also in other key international human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment (CAT), as well as regional human rights frameworks, notably the European Convention of Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFR). Within the international human rights framework, the principle of non-refoulement comprises the obligation not to extradite, deport, or otherwise transfer (directly or indirectly) a person to a third country where he or she would face a foreseeable risk of being subjected to torture or to cruel, inhuman, or degrading treatment or punishment. A joint communication by five UN Special Rapporteurs to the Italian government on 15 May 2019 stated that: practices whereby countries of destination cooperate with another to prevent migrants and refugees from arriving have been characterised as ‘pullbacks’ and as violations of the principle of non-refoulement, which constitutes an integral part of the absolute and non-derogable prohibition of torture and other ill-treatment enshrined in Article 3 CAT and Articles 6 and 7 of ICCPR. The communication also encouraged Italian judicial authorities to take into account its findings.23 Member states’ human rights responsibilities under the Council of Europe (CoE) and the European Convention of Human Rights (ECHR) require a protectiondriven approach. CoE states parties involved in SAR operations have to take all necessary measures to protect the lives of individuals in situations of distress who

Disembarkation and relocation arrangements 159 are within their jurisdiction and influence. This principle was recently reiterated by the European Court of Human Rights (ECtHR) in two interim measures con­ cerning refusal of disembarkation in Italian ports of migrants rescued by the NGO vessel Sea-Watch 3. While the Court did not grant the applicants’ requests to be disembarked in Italy, it requested the Italian government ‘to take all necessary measures, as soon as possible, to provide all the applicants with adequate medical care, food, water and basic supplies as necessary.’24 The ECtHR case law has found that jurisdiction may be present in cases of both de jure as well as de facto control by state actors, both territorially and extraterritorially. The extraterritorial application of the ECHR was recognised by the ECtHR in the Hirsi Jamaa and Others v. Italy of February 2012 (Giuffré 2016). The Strasbourg Court ruled that – in the context of the ‘pushback operations’ to Libya conducted by the Italian Navy forces – Italy had assumed both continuous and exclusive de jure and de facto control over the affected applicants by bringing them on board Italian navy vessels and returning them to Libya.25 With specific regard to the right to an effective remedy, the ECtHR found that pushback opera­ tions by the Italian authorities to Libya rendered the applicants in a situation in which they were ‘deprived of any remedy which would have enabled them to lodge their complaints . . . with a competent authority and to obtain a thorough and rigorous assessment of their request.’26 The ECtHR confirmed its Hirsi doctrine of de jure and de facto control in respect of extraterritorial jurisdiction in N.D. and N.T. v. Spain,27 which concerned border-control practices, chiefly the so-called ‘hot returns’ or automatic expul­ sion or pushbacks by Spanish authorities from Ceuta and Melilla to Morocco. Furthermore, the Strasbourg Court has also determined responsibility for human rights violations in situations where the threshold of full and exclusive control over a ship set by the Hirsi case was not met. In the 2009 case Women on Waves v. Portugal,28 in particular, the Court assumed that the combination of a govern­ ment notification to the captain of an NGO boat prohibited from entering Portu­ guese waters and the presence of a war ship blocking its entry constituted strong enough indicators for unlocking the application of the ECHR to Portugal (Fink & Gombeer 2018). The ECtHR jurisprudence described above represents a basis for addressing some of the more sophisticated containment policies currently deployed in the Mediterranean, including those involving the provision of financial, technical, and operational support by EU and Italian authorities to Libyan authorities for conducting ‘pullbacks’ of asylum seekers and migrants to Libya (Baumgärtel 2018; Pijnenburg 2018). In May 2018, a coalition of NGOs and scholars filed an application against Italy with the ECtHR concerning an incident on 6 Novem­ ber 2017 in which the Libyan Coast Guard interfered with the efforts of the NGO vessel Sea-Watch 3 to rescue 130 migrants from a sinking dinghy in international waters. According to the applicants, at least 20 persons drowned before and during the operation, while 47 others were ‘pulled back’ to Libya, where they endured detention in inhumane conditions, beatings, extortion, starvation, and rape (Global Legal Action Network 2018). The applicants claim that this episode

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should be read in the context of the terms of the 2017 Italy-Libya Memorandum of understanding, following which Italy has de facto been coordinating the Libyan response at sea These circumstances, they argue, establish Italy’s legal responsi­ bility under the ECHR for the actions of Italian and Libyan vessels in the case under consideration. As emphasized among others by the EU Fundamental Rights Agency (FRA), state responsibility may exceptionally arise when a state ‘aids or assists’ another state to engage in a conduct that violates its international obligations (FRA 2016). This corresponds with Articles 16 of the International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), which formulate the basic rules under international law concerning state respon­ sibilities in the commission of an ‘internationally wrongful act,’ including grave human rights violations.29 Various scholars have discussed the relevance and potential of ARSIWA, and in particular of Article 16, to capture practices of del­ egated containment by EU and member states’ actors in the Mediterranean, in par­ ticular in the context of support and assistance provided to the Libyan coast guard for conducting pullbacks to Libya (Hathaway and Gammeltoft-Hansen, 2015; Moreno-Lax and Giuffré, 2017; Pijnenburg, 2018). However, as Frenzen has argued in this regard, ‘[T]he practical problem presented when seeking to analyse or challenge EU member state assistive practices is establishing the nature of the specific migration control practice, including establishing the existence and details of the formal or informal agreements between the European Union, EU member states, Frontex, EUNAVFOR MED and the other non-EU states.’ According to the same author, the choice for informal and secretive arrangements to regulate border control and migration matters undermines ‘democratic control by making it difficult, if not impossible, to monitor activities and promote the accountability of the European Union and EU member states’ (Frenzen 2017, p. 307). When any state engages, directly or indirectly, in internationally wrongful acts and grave human rights violations, their practices also fall within the frame­ work of the Rome Statute and the jurisdiction of the International Criminal Court (ICC).30 A joint letter issued in March 2018 by a group of academics expressed deep concerns about the ongoing Italian Ministry of Interior policy against civil society actors engaged in SAR activities.31 The letter underlined that under inter­ national law, shipmasters are under a clear obligation to assist people in distress at sea and to bring them to a place of safety. By requiring vessels’ captains to hand over rescued people to the Libyan Coast Guard and by seizing SAR NGO boats, the Italian government has exposed rescued people to grave human rights viola­ tions and crimes against humanity. The same letter called the UN Security Coun­ cil to consider Italy’s actions as a threat to international peace and security and to promote a coordinated approach to SAR in the Mediterranean. It also asked the Prosecutor of the International Criminal Court to initiate proprio motu an investi­ gation into the complicity of high-ranking Italian authorities in the crimes against humanity taking place in Libya, and it asked Council of Europe members to file an interstate complaint against the Italian government before the European Court of Human Rights.

Disembarkation and relocation arrangements 161 The ICC Prosecutor opened an investigation into the situation in Libya back in 2011 over crimes against humanity and war crimes.32 As reported by the ICC Prosecutor before the United Nations Security Council in 2017 and 2018,33 the investigation also covers crimes against migrants transiting through Libya, including those in official and unofficial detention centres. Mann, Moreno-Lax and Shatz (2018) have correctly argued that not investigating collusion by Euro­ pean actors and ‘investigating exclusively crimes by human traffickers . . . reflects an unacceptable bias, and would likely amount to selective prosecution.’ This corresponds with the position expressed in a report of February 2018 by the UN Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, which calls on states and the ICC Prosecutor to investigate crimes resulting from ‘direct or indirect consequence of deliberate State policies and practices of deterrence, criminalisation, arrival prevention, and refoulement.’34 A recent Communication to the Office of the ICC Prosecutor titled ‘EU Migra­ tion Policies in the Central Mediterranean and Libya’ points out that in the name of the so-called ‘European humanitarian refugee crisis’ in 2015, the EU and its member states consciously enacted a ‘deterrence-based policy of premeditated and intentional practice of non-assistance to migrants in distress at sea,’ which has determined ‘a lethal gap in the relevant SAR zone, in an area under the effec­ tive control of the EU and its member states’ actors.’35 Particular attention is paid to the deathly effects of the strategy to reduce and limit the operational area of intervention of subsequent Frontex joint maritime operations such as Triton. The Communication states: The strategy followed by the EU consisted of the externalisation of maritime and human rights obligations that comes with its effective control over the said zones to non-state actors, para-state actors and foreign partners, in a (failed) attempt to avoid exposure to these legal responsibilities.36 It adds that ‘the only remaining question to resolve relates to the identity of the most responsible perpetrators, which requires intense investigations in the Euro­ pean apparatus and State members bureaucracies.’37 Beyond the specific political circumstances and reciprocal incentives sustain­ ing EU-Libya cooperation on migration, it should be recalled that EU and member state practices of delegated containment have been generally met with disagree­ ment and criticism among African states, which are justifiably reluctant to accept EU policies that would imply setting up new detention facilities for potentially disembarked people in their territories, as these would endanger their own inter­ national and regional commitments to ensure safety and the protection of human rights. A common African Union (AU) position paper leaked to the press in Feb­ ruary 2019 equated the establishment of so-called ‘disembarkation platforms’ in their territories, one of the concepts put forward by the European Council in June 2018,38 to the creation of ‘de facto detention centres’, and called on African states to refuse to cooperate with the EU in the implementation of those plans.39 As Gammeltoft-Hansen (2018) has rightly pointed out, the range of legal regimes

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and ‘complaint mechanisms’ through which migration containment policies can be challenged and brought to justice by affected individuals needs also to include non-EU (third) countries’ domestic jurisdictions (and judicial avenues and rem­ edies) as well as their respective responsibilities before applicable regional human rights systems.40 7.3.3 EU Maritime and border surveillance standards SAR and disembarkation activities of EU member states are currently not cov­ ered by a common set of EU rules, except for those activities carried out in the context of Frontex-led joint operations at sea (Carrera & den Hertog 2015), which are covered by Regulation 656/201441 and the Schengen Borders Code (SBC).42 Regulation 656/2014 applies to all Frontex-coordinated maritime border surveil­ lance operations and includes a set of SAR and disembarkation obligations for ‘participating units’ (i.e. the law-enforcement vessels of participating member states). The main merit of Regulation 656/2014 is that of providing interpretative clarity on SAR and disembarkation obligations under the international law of the sea by including more detailed and precise rules. It also foresees EU definitions of autonomous nature that can be considered as ‘benchmarks’ against which current (mal)practice by some EU member states in the Mediterranean can be assessed. In the case of disembarkation following a SAR operation, the Regulation estab­ lishes that the member state hosting the operation and participating member states shall cooperate with the responsible Rescue Coordinating Centre (RCC) to iden­ tify a place of safety and ensure that disembarkation of rescued persons is carried out rapidly and effectively. If it is not possible to arrange for a unit participating in the SAR operation to be released of its obligation to render assistance to persons in distress at sea as soon as reasonably practicable, that unit shall be authorised to disembark the rescued persons in the Member State hosting the operation (Article 10.1). Article 2.12 provides a clear and protection-driven definition of ‘place of safety,’ which could be considered as an autonomous EU legal concept. Accord­ ing to this provision, the notion of ‘place of safety’ means a: location where rescue operations are considered to terminate and where the survivors’ safety of life is not threatened, where their basic needs can be met and from which transportation arrangements can be made . . . taking into account the protection of their fundamental rights in compliance with the principle of non-refoulement. Article 4 of the regulation includes provisions on protection of fundamental rights and non-refoulement, which apply to all cases of disembarkation in the con­ text of sea operations conducted by the Frontex agency (Peers 2014). In line with the ECtHR Hirsi Case, the regulation lays down a set of procedural steps to be followed when considering disembarkation of rescued migrants in a third coun­ try. Article 4.2 requires, in the context of planning a sea operation, that the host member state, in coordination with participating member states and the Frontex

Disembarkation and relocation arrangements 163 agency, takes into consideration the general situation in the third country con­ cerned, based on information derived from a broad range of sources, including evidence provided by international organisations, EU bodies, and EU agencies, before disembarking rescued persons in a third country. The regulation also foresees in Article 4.3 a central EU benchmark: before any rescued person is disembarked in, forced to enter, conducted to, or other­ wise handed over to the authorities of a third country, units participating in the JO must conduct a case-by-case assessment of their personal circumstances and provide information on the destination. The rescued persons will also need to be offered the possibility ‘to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement.’ In practice, Article 4.3 makes it mandatory that the rescued persons are in fact dis­ embarked in EU member states for such an individual assessment to be carried out properly. This corresponds with the protections provided in the SBC concerning ‘border surveillance’ activities, which apply ‘without prejudice of . . . the rights of refugees and persons requesting international protection, in particular as regards non-refoulement’ (Article 3.b SBC). Successive legislative amendments to the 2004 Regulation establishing the Frontex agency have introduced a number of provisions to ensure that human rights safeguards (including those laid down in Regulation 656/2014) are duly taken into account in the implementation of Frontex border surveillance opera­ tions. These include the adoption of a Fundamental Rights Strategy, a Code of Conduct, the appointment of a Fundamental Rights Officer (FRO), and the setup of the Frontex Consultative Forum. More recently, Regulation 2016/1624/EU establishing a European Border and Coast Guard Agency (EBCG) has incorpo­ rated an individual complaint mechanism which allows Frontex to monitor the respect of fundamental rights in all its activities, including maritime border sur­ veillance operations (Carrera & Stefan 2018). While the establishment of a procedure for handling complaints about fun­ damental rights violations committed by staff involved in Frontex activities has been welcomed as a positive development, observers have pointed to a number of shortcomings of the procedure established under Article 72 of the EBCG Regula­ tion, the first being its lack of independence (Carrera & Stefan 2018; Pirjola in this volume). To address this shortcoming, suggestions have been made to endow the FRO with greater human resources and wider power to conduct thorough and systematic follow-up monitoring of national complaints (Carrera & Stefan 2018). As underlined by Pirjola (in this volume), independence of the complaint proce­ dure could also be strengthened by making it possible to appeal against decisions of the FRO to the European Union Ombudsman or to an independent complaints commission. The effectiveness and accessibility of existing accountability mechanisms to prevent potential human rights abuses in the context of Frontex activities are fur­ ther limited in the case of maritime surveillance operations, including SAR opera­ tions, which often take place in remote or dispersed locations, including on the high seas (see Campesi in this volume). As documented in section 7.2.1 of this

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chapter, one of the consequences of the progressive disengagement of EU actors from SAR activities in the Central Mediterranean, including through the reduc­ tion of the operational area of JO Themis, and the delegation of containment tasks to Libyan authorities, is to eliminate any direct contact between migrants and member states’ authorities, thus widening already existing gaps in accountability and monitoring of respect of fundamental rights in the context of SAR operations. 7.3.4 EASO’s role in hotspots and relocation arrangements This section provides an assessment of the accountability challenges deriving from the expanding range of operational activities entrusted to the European Asylum Support Office (EASO).43 As highlighted in section 7.2.2 of this chapter, EASO is currently involved in the operationalisation of ad hoc relocation arrange­ ments following disembarkation of migrants rescued at sea, one of the key policy developments to address disembarkation challenges envisaged at the EU level over 2018 and 2019. This circumstance raises a number of issues in light of the dubious legal nature of those arrangements and the limitations to EASO’s action foreseen by its formal mandate. Developments mentioned above should be read in the context of the increas­ ingly relevant role that EASO has played since the outbreak of the so-called ‘European refugee crisis’ in the implementation of the ‘hotspots approach’ in Italy and Greece. The hotspots approach made its first appearance in May 2015, in the Commission’s European Agenda on Migration, which specified that the approach entails operational deployment of different EU agencies, notably Frontex, EASO, and Europol, in frontline member states to swiftly identify, register, and finger­ print incoming migrants (European Commission 2015). Since its launch, the hotspots approach has been linked in operational terms to the implementation of the emergency relocation mechanism in support of Italy and Greece activated in 2015 (Guild, Costello & Moreno-Lax 2017). The ‘hotspot approach’ has been subject to criticism due to the absence of a specific legal framework regulating its functioning (Neville & Rigon 2016, p. 30; Tsourdi 2016, p. 1015). Furthermore, its implementation has raised concerns about its compatibility with fundamental rights standards, specifically in relation to practices including the forced fingerprinting of individuals, quasi-detention practices, and degrading reception conditions, expedited admissibility interviews and, more broadly, for the overarching focus on security instead of international protection (Carrera 2018, p. 17; ECRE 2016; Danish Refugee Council 2019). The tasks conducted by EASO in hotspots are manifold, including the provi­ sion of information on the international protection procedure to potential appli­ cants, registration of the application for international protection, identification of candidates for relocation, and help with the related processing and transfer to relocation countries (Tsourdi 2016). EASO’s involvement in conducting admissibility interviews of asylum seekers in the hotspots on the Greek islands has been subject to complaints highlighting that EASO activities have fallen outside its current official mandate and have

Disembarkation and relocation arrangements 165 failed to comply with procedural guarantees and the right to be heard enshrined in Article 41 EU CFR. In March 2017, the German NGO European Centre for Constitutional and Human Rights (ECCHR) lodged a complaint with the Euro­ pean Ombudsman,44 claiming that EASO was acting outside its mandate under EU law by effectively deciding on the admissibility of applications for interna­ tional protection lodged by migrants in the Greek hotspots. While in its assess­ ment the European Ombudsman concluded that the ultimate responsibility for decisions on individual asylum applications rests with the Greek authorities, it did accept that the complaint raised ‘genuine concerns about the extent of the involvement of EASO personnel in assessing asylum applications in the Greek hotspots’ and ‘about the quality of, and procedural fairness in, the conduct of admissibility interviews’. In particular, the Ombudsman underlined that ‘EASO is being encouraged politically to act in a way which is, arguably, not in line with its existing statutory role.’45 In 2016, the Commission released a new proposal to transform EASO into a fully fledged European Union Asylum Agency (EUAA) by significantly expand­ ing its mandate and resources (European Commission 2016). The European Par­ liament and the Council reached a partial agreement on the file by June 2017.46 Mirroring provisions already adopted in the case of Frontex, a number of amend­ ments related to the protection of fundamental rights have been incorporated in the revised Regulation, albeit in a watered down form compared to what had been advocated in the European Parliament’s Report on the proposal. These include the establishment of a Fundamental Rights Officer responsible for ensuring the Agency’s compliance with fundamental rights in the course of its activities, the establishment of a Fundamental Rights Strategy and a Code of Conduct applica­ ble to all experts who are part of the so-called ‘Asylum Support Teams’, and the establishment of a complaint mechanism accessible to any person who is directly affected by the actions of experts in the asylum support teams and who considers that his or her fundamental rights have been breached due to those actions. At the time of writing, the partial agreement on the EUAA has not yet been for­ malised since parts of the new agency mandate are linked to other areas of the ongo­ ing CEAS reform on which no agreement could be reached among co-legislators, particularly the reform of the Dublin system and the reform of asylum procedures (Tsourdi 2018). Furthermore, on 12 September 2018, the Commission presented a further proposal amending the initial proposal on the EUAA as a follow-up to the European Council conclusions of 28 June 2018 (European Commission 2018). The revised proposal provides a clearer mandate for the involvement of the Agency in the entire or parts of the international protection procedure at the administrative stage, thus at least partially addressing the current legal ambigui­ ties concerning the tasks assigned to the agency in hotspots areas. The progressive expansion of operational activities undertaken by EASO deployed experts in the last few years, notably in the context of hotspots and, recently, in the operationalisation of ad hoc relocation arrangements, have argu­ ably exceeded the mandate of the agency as established in its founding Regula­ tion and raised concerns about EASO’s staff compliance with fundamental rights

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standards. As in the case of the Frontex agency discussed above, establishing an effective system for monitoring respect of fundamental rights in the context of operational tasks conducted by EASO, including through the establishment of an effective complaint mechanism, represents a priority to be addressed by EU legis­ lators, especially in view of future revisions of the Agency’s mandate.

Conclusions This chapter has underlined the effects of ongoing EU and member states poli­ cies of disengagement from SAR activities in the Central Mediterranean on the possibility for affected individuals to have access and exercise effective remedies in cases of violations of their human rights. Disengagement from SAR activities has translated into the incremental ‘backing out’ and reduction of the operational area covered by Frontex JO Themis compared to the previous JO Triton, as well as the withdrawal of the naval means and SAR-related activities of EUNAVFOR­ MED operation ‘Sophia.’ The progressive reduction in SAR capabilities has been accompanied by the progressive delegation of containment tasks to Lib­ yan authorities, including in the form of ‘pullbacks’ to Libya of boats carrying migrants headed to Europe. This chapter has also focused on the recent emergence of so-called ‘ad hoc dis­ embarkation and relocation arrangements’ as a way to address political disputes raised by refusal of disembarkation of migrants rescued at sea. It was argued that these non-legally binding instruments constitute extra-EU Treaty initiatives that escape the EU decision-making process and the principle of EU interinstitutional balance and raise profound challenges regarding the possibility for individuals to claim and obtain effective redress of any violations of rights they are entitled to under EU law. While policies adopted and/or implemented by European institutions, EU agen­ cies, and national authorities in the Mediterranean have been designed with the aim of escaping legal accountability and liabilities, they do not happen in a legal vacuum: they fall within the scope and have the potential of being taken on by international and EU justice venues, actors, and instruments. The analysis carried out in this chapter has underlined the relevance and useful­ ness of the concept of ‘portable justice’ in the EU legal system to ensure access to justice in the context of SAR operations and disembarkation arrangements conducted by EU and member states’ actors. What is particularly relevant for our analysis is that compliance with the EU CFR, including the right to an effec­ tive remedy and to a fair trial (Article 47 EU CFR), is required for any kind of initiative, action, or omission falling in the scope of EU law and policies, which currently cover border controls and surveillance, but also the processing of asy­ lum claims and expulsions operations (Carrera et al. 2018). The ‘portable justice approach’ to fundamental rights protection in the EU legal system advocated in this book complements the human rights safeguards provided by the ECHR as it gives the possibility to assert responsibility for possible abuses perpetrated in the context of EU containment and migration management practices without having

Disembarkation and relocation arrangements 167 to determine de jure or de facto control at the time and place when an action or inaction is performed. However, the EU system of judicial, administrative, and financial accountabili­ ties that, when effective and accessible, have the potential to bring ‘portable jus­ tice’ crucially rely on the effectiveness and independence of judicial remedies, as well as complaint (administrative or extrajudicial) mechanisms. The case of EU home affairs agencies Frontex and EASO discussed in this chapter shows how existing provisions to ensure respect of fundamental rights standards in the perfor­ mance of the agencies’ activities are still subject to profound limitations and are lacking in effectiveness in light of international, regional, and EU standards. The current challenge is how to revise those mechanisms to make them available and accessible for affected individuals in practice.

Notes 1 See News Release, Frontex launching new operation in Central Med, https://frontex. europa.eu/media-centre/news-release/frontex-launching-new-operation-in-central­ med-yKqSc7. 2 The Malta Independent, ‘Italian MEPAsks Brussels About “Secret Malta-Italy Migrants for Oil Deal” ’, 18 October 2015, www.independent.com.mt/articles/2015-10-18/ local-news/Italian-MEP-asks-Brussels-about-secret-Malta-Italy-migrants-for-oil­ deal-6736143776. 3 Interview with Frontex Official conducted by the authors. See also ‘News release 2018– 02–01. Frontex Launching New Operation in Central Med’, https://frontex.europa.eu/ media-centre/news-release/frontex-launching-new-operation-in-central-med-yKqSc7. 4 Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), 8740/15, Brussels, 17 May 2015 5 EUobserver, ‘Sophia in Limbo: Political Games Limit Sea Rescues’, 4 March 2019, https://euobserver.com/ opinion/144304. 6 Euractiv, ‘Italy to Push EU for Reform of “Operation Sophia” ’, 30 August 2018, www. euractiv.com/section/justice-home-affairs/news/italy-to-push-eu-for-reform-of-opera tion-sophia/. 7 See Parliamentary questions. Answer given by Mr Avramopoulos on behalf of the European Commission. Question reference: P-003665/2018, 4 September 2018; Euronews, ‘Prompted by EU, Libya Quietly Claims Right to Order Rescuers to Return Fleeing Migrants’, 7 August 2018, www.euronews.com/2018/07/06/prompted-by-eulibya-quietly-claims-right-to-order-rescuers-to-return-fleeing-migrants. 8 The letter states that ‘[w]ith regard to the statement on following procedures and noti­ fying sightings of ‘distress’ at sea to the ‘Responsible’ MRCC (i.e. MRCC Libya) and also to neighbouring MRCCs (i.e. those of Italy and Malta) and EUNAVFOR MED Headquarters, I would like to note that Italy, despite the fact that it cannot be considered a ‘neighbouring MRCC’ because it does not border the Libyan SRR, is supporting the Libyan Coast Guard a lot in particular in acting during the SAR event as a ‘communication relay.’ In that regard, together with Malta, and following the standard practice, it would be appropriate to include Tunisia and Egypt as well.’ Retrievable from www.statewatch.org/news/2019/jun/eu-letter-from-frontex-director­ ares-2019)1362751%20Rev.pdf. 9 EUROSUR purposes are to detect, prevent and combat irregular immigration and cross-border crime,’ and contribute to the protection and saving of lives of migrants at sea. According to a leaked document on Operation Sophia, Libya is also connected to the ‘Service Oriented Infrastructure for Maritime Traffic Tracking (SMART)’ – an

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Internet-based secured communication network provided by the Italian Navy. The leaked document states that ‘SMART will work as the main communication and infor­ mation exchange channel in the training of the Libyan Navy and Naval Coastguard (. . .) SMART is already being gradually augmented by EUROSUR, starting with FRONTEX METEO services, which will be made available to the Libyan Navy and Naval Coastguard through a technical interface of SMART. EUROSUR could then be a complimentary system for information exchange, having an operational picture and situational awareness,’ European External Action Service (EEAS), Sophia End of Month 6 Report, 2016, retrievable from: http://statewatch.org/news/2016/dec/eucouncil-eunavformed-jan-oct-2016-report-restricted.pdf. See Regulation establishing the European Border Surveillance System (EUROSUR) No. 1052/2013, 22 Octo­ ber 2013, OJ L295/11. On EUROSUR and its place in the EU’s integrated border man­ agement, see Jeandesboz (2012); and on how EUROSUR affects fundamental rights, see FRA (2018). 10 The numbers reported above should be read in the context of an overall decrease in arrivals through the Central Mediterranean route over the last three years: 181,436 arrivals in 2016, 119,369 in 2017, 23,370 in 2018, and 2,447 in the first six months of 2019. See UNHCR, Mediterranean situation, Italy, https://data2.unhcr.org/en/situ ations/mediterranean/location/5205. According to IOM, from 2014 to 2018, an esti­ mated 15,000 people died while crossing the Central Mediterranean route, making it the deadliest migration route in the world. See IOM Missing Migrant Project, https://miss ingmigrants.iom.int/region/mediterranean?migrant_route%5B%5D=1376&migrant_ route%5B%5D=1377&migrant_route%5B%5D=1378. 11 Ryan has qualified ‘interdiction’ as a form of extraterritorial immigration control. The interdiction of vessels at sea, differently from SAR, aims at preventing ‘sea-borne migrants from reaching their intended destination.’ He qualifies the notion of ‘inter­ ception’ as ‘the identification of vessels, with a view to the arrest of vessels and their passengers once they entered territorial waters’ (Ryan, 2010, pp. 22–23). 12 The statistics under this column cover the first semester of 2019, with the exception of the Frontex statistics that correspond with the month of April 2019, based on the Frontex Press Pack, mid-May 2019. 13 Refer to Italian Coast Guard website: www.guardiacostiera.gov.it/attivita/ricerca. 14 Data covering 2019 extends until 14 June 2019. See UNHCR Libya Update, June 2019, retrievable from https://data2.unhcr.org/en/documents/download/69930; UNHCR, Libya: Activities at Disembarkation, monthly update February 2019 (available at https://data2.unhcr.org/en/documents/download/68273); and UNHCR Libya: Activi­ ties at Disembarkation, monthly update December 2018 (available at https://data2. unhcr.org/en/documents/download/67499). 15 Council of the European Union. Council Decision (EU) 2015/1523 of 14 Septem­ ber 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece, OJ L 239, 15.9.2015, pp. 146–156; and Council of the European Union. Council Decision (EU) 2015/1601 of 22 September 2015 estab­ lishing provisional measures in the area of international protection for the benefit of Italy and Greece, OJ L 248, 24.9.2015, pp. 80–94. 16 Ad hoc arrangements have covered a different personal scope to the one applicable in the case of the two emergency relocation decisions adopted and implemented since 2015. Under the two decisions, only asylum seekers belonging to nationalities with a high recognition rate, mainly Syrians and Eritreans, and for some time Iraqis, were considered eligible for relocation. See Costello & Moreno-Lax (2017). 17 For an overview of existing international dispute settlement mechanisms and justice venues dealing exclusively with the law of the sea, refer to D.R. Rothwell and T. Ste­ phens (2016, pp. 473–505); Y. Tanaka (2015, pp. 417–452). 18 The applicability of a ‘portable justice approach’ to EU border surveillance opera­ tions at sea was supported by a 2009 Letter of the European Commission to the LIBE

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19

20 21 22

23

24

25 26 27 28

29

Committee of the European Parliament, which was referred to in the European Court of Human Rights (ECtHR) ruling Hirsi Jamaa and Others v. Italy of February 2012. When examining the applicability of EU law in the context of interceptions of migrants in international waters and ‘pushbacks’ to Libya by Italian authorities, the Commission concluded that ‘border surveillance activities conducted at sea, whether in territorial waters, the contiguous zone, the exclusive economic zone or on the high seas, fall within the scope of application of the Schengen Borders Code (SBC)’, and the EU notion of ‘border surveillance’ laid down in Article 13 of the SBC. See Hirsi Jamaa and Others v. Italy, [GC] App no 27765/09 (ECtHR, 23 February 2012), par. 34. The UNCLOS framework foresees dispute settlement procedures, some of which are considered compulsory and which states parties may declare preference for in light of Article 287, Section 2, of the Convention. These may include the International Tribu­ nal for the Law of the Sea, the International Court of Justice, an arbitral tribunal estab­ lished under Annex VII of the Convention or a special arbitral tribunal under Annex VIII. For the purposes of this chapter, it is important to highlight that Italy has declared as preferred venues for dispute resolution the ITLOS and the International Court of Justice. Refer to D.R. Rothwell and T. Stephens (2016). Ch. V Regulation 33 of SOLAS. The SAR Convention (Ch. 1, para. 1.3.13) defines a ‘distress phase’ as a ‘situation wherein there is a reasonable certainty that a person, a vessel, or other craft is threat­ ened by grave and imminent danger and requires immediate assistance.’ See International Maritime Organisation (Maritime Safety Committee), amendments to both the International Convention on Maritime Search and Rescue (SAR) and the International Convention for the Safety of Life at Sea (SOLAS) (adopted May 2004, entered into force 1 July 2006). Resolutions MSC.155 (78) and MSC.153 (78), 20 May 2004. United Nations Human Rights Special Procedures, Joint Communication, by the Spe­ cial Rapporteur on the situation of human rights defenders; the Independent Expert on human rights and international solidarity; the Special Rapporteur on the human rights of migrants; the Special Rapporteur on contemporary forms of racism, racial discrimi­ nation, xenophobia and related intolerance; the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment; and the Special Rapporteur on trafficking in persons, especially women and children, 15 May 2019, ALITA 4/201 9. See ‘ECHR grants an interim measure in case concerning the Sea-Watch 3 vessel.’ European Court of Human Rights, Newsletter – February 2019; See ‘The Court decides not to indicate an interim measure requiring that the applicants be authorised to disembark in Italy from the ship Sea-Watch 3’, European Court of Human Rights Press Release, 25 June 2019. Hirsi Jamaa and Others v. Italy, para. 81. Hirsi Jamaa and others v Italy, para. 205. N.D. and N.T. v Spain, Application nos. 8675/15 and 8697/15, ECtHR (3 Octo­ ber 2017), para. 54. On 29 January 2018, the case was referred to the Grand Chamber and final judgment is pending. Women on Waves v. Portugal, Application No. 31276/05, ECtHR, 3 February 2009. The applicants in this case were three NGOs: a Dutch one (owning a boat on which they used to give information courses concerning reproductive rights and abortion) and two Portuguese ones. In 2004, Women on Waves were planning to hold an informa­ tion meeting with interested women in a Portuguese port but the Portuguese authori­ ties refused entry to the ship and blocked it by way of a war ship. According to the judgement, the NGO boat was refused entry to Portuguese territorial in a way that the ECtHR found to be a disproportionate interference with the human right of freedom of expression enshrined in Art. 10 of the Convention. Article 16 ARSIWA states: ‘A State which aids or assists another State in the commis­ sion of an internationally wrongful act by the latter is internationally responsible for

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36 37 38 39 40

41

42

43

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doing so if: (a) that State does so with knowledge of the circumstances of the interna­ tionally wrongful act; and (b) the act would be internationally wrongful if committed by that State.’ See International Law Commission, 2001, Draft Articles on Responsi­ bility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its 53rd Session, UN Doc. A/56/10. See ‘Elements of Crimes’, International Criminal Court, particularly explanations on Art. 7 (Crimes against Humanity). See Statement by 29 academics on Italy seizing the rescue boat Open Arms, retrievable from http://statewatch.org/news/2018/mar/open-arms-statement.pdf. See ICC Prosecutor (2011), Situation in Libya: ICC-01/11, March 2011. See ICC Prosecutor Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011), 2 November 2018, paragraphs 16 and 18. Report of the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, A/HRC/37/50, 26 February 2018. See Recommendation 65.j of the Report. Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to Article 15 of the Rome Statute. EU Migration Policies in the Central Medi­ terranean and Libya (2014–2019), paragraph 32. Retrievable from: www.statewatch. org/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf. Ibid., para. 480. Ibid., paragraph para. 503. European Council, Conclusions 28 June 2018. The Guardian, ‘African Union Seeks to Kill EU Plan to Process Migrants in Africa’,

24 February 2019, www.theguardian.com/world/2019/feb/24/african-union-seeks-to­ kill-eu-plan-to-process-migrants-in-africa. Gammeltoft-Hansen highlights how in the existing literature the responsibilities and possibilities to seek justice and ‘complaint mechanisms’ in transit and origin countries is seldom if ever considered. He therefore calls for more research on the judicial and administrative venues for seeking remedies in a wider set of legal regimes including those of the ‘Global South’ (p. 390). Regulation (EU) No. 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the member states of the European Union, 15 May 2014, OJ L 189/93. Regulation on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) 2016/339, 9 March 2016, OJ L 77/1. In addition, Reg­ ulation 2016/1624 of 2016 establishing a European Border and Coast Guard (EBCG) specified that “Search and rescue operations for persons in distress at sea launched and carried out in accordance with Regulation (EU) No 656/2014” is a key component of European integrated border management laid down in Art. 77(1)(c) TFEU. EASO was formally established on 19 May 2010 to ‘facilitate, coordinate and strengthen practical cooperation among Member States’, including by gathering and exchanging of country of origin information (COI), to provide ‘operational support’ to member states subject to ‘particular pressure’ on their asylum systems and reception facilities, and provide ‘scientific and technical assistance’ towards the development of the Common European Asylum System (CEAS), drawing on its role as an ‘independ­ ent source of information’. Regulation (EU) no 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, OJ L132/11. Decision in case 735/2017/MDC on the European Asylum Support Office’s’ (EASO) involvement in the decision-making process concerning admissibility of applications for international protection submitted in the Greek Hotspots, particularly shortcomings in admissibility interviews.

Disembarkation and relocation arrangements 171 45 The EASO Founding Regulation in Recital 14 states that ‘the Support Office should have no direct or indirect powers in relation to the taking of decisions by member states’ asylum authorities on individual applications for international protection’. 46 Proposal for a Regulation of the European Parliament and of the Council on the Euro­ pean Union Agency for Asylum and repealing Regulation (EU) No. 439/2010 − State of play and guidance for further work, Brussels, 27 June 2017 (OR. en) 10555/17. Retriev­ able from http://data.consilium.europa.eu/doc/document/ST-10555-2017-INIT/en/pdf.

References Amnesty International (2018), ‘Between the Devil and the Deep Blue Sea: Europe Fails Refugees and Migrants in the Central Mediterranean’ [online], www.amnesty.org/down load/Documents/EUR3089062018ENGLISH.pdf. Basaran, T. (2014), ‘Saving Lives at Sea: Security, Law and Adverse Effects’, European Journal of Migration and Law, Vol. 16, No. 3, pp. 365–387. Baumgärtel, M. (2018), ‘High Risk, High Reward: Taking the Question of Italy’s Involve­ ment in Libyan “Pullback” Policies to the European Court of Human Rights’, EJIL: Talk! [online], www.ejiltalk.org/high-risk-high-reward-taking-the-question-of-italysinvolvement-in-libyan-pullback-policies-to-the-european-court-of-human-rights/. Carrera, S. & Cortinovis, R. (2019a). Search and rescue, disembarkation and relocation arrangements in the Mediterranean. Sailing Away from Responsibility? CEPS Paper in Liberty and Security in Europe, No. 2019-10, June 2019 [online], https://www.ceps. eu/ceps-publications/search-and-rescue-disembarkation-and-relocation-arrangements­ in-the-mediterranean/ Carrera, S. & Cortinovis, R. (2019b), ‘The EU’s Role in Implementing the Global Com­ pact on Refugees: Contained Mobility vs International Protection’, CEPS Paper in Liberty and Security in Europe, No. 2018, 4 April [online], www.ceps.eu/wp-content/ uploads/2019/04/LSE-04_ReSOMA_ImplementingGCR.pdf. Carrera, S. & den Hertog, L. (2015), ‘Whose Mare? Rule of Law Challenges in the Field of European Border Surveillance in the Mediterranean’, CEPS paper in Liberty and Secu­ rity in Europe Series No. 79, January [online], www.ceps.eu/system/files/LSE_79.pdf. Carrera, S., den Hertog, L. & Parkin, J. (2013), ‘The Peculiar Nature of EU Home Affairs Agencies in Migration Control: Beyond Accountability Versus Autonomy?’ European Journal of Migration and Law, Vol. 15, No. 4, pp. 337–358. Carrera, S., El Qadim, N., Fullerton, M., Garcés-Mascareñas, B., Kneebone, S.Y., Luk, N.C. & Vosyliūtė, L. (2018), ‘Offshoring Asylum and Migration in Australia, Spain, Tunisia and the US. Lessons Learned and Feasibility for the EU’, Report Open Society European Policy Institute [online], www.ceps.eu/system/files/OSI%20009-18%20Off shoring%20asylum%20and%20migration.pdf. Carrera, S. & Stefan, M. (2018), ‘Complaint Mechanisms in Border Management and Return Operations in Europe: Effective Remedies for Victims of Human Rights Viola­ tions?’ CEPS Paperback, Brussels [online], www.ceps.eu/wp-content/uploads/2018/03/ Complaint%20Mechanisms_A4.pdf. Danish Refugee Council (2019), ‘Rights at Risk: Implications of a Closer Nexus Between Asylum and Return Procedures’, DRC Policy Brief [online], https://drc.ngo/news/ rights-at-risk-implications-of-a-closer-nexus-between-asylum-and-return-procedures. ECRE (2016), ‘The Implementation of the Hotspots Approach in Italy and Greece: A Study’ [online], www.ecre.org/wp-content/uploads/2016/12/HOTSPOTS-Report-5.12.2016..pdf.

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ECRE (2019), ‘Relying on Relocation: ECRE’s Proposal for a Predictable and Fair Relo­ cation Arrangement Following Disembarkation’ [online], www.ecre.org/wp-content/ uploads/2019/01/Policy-Papers-06.pdf. EEAS (2019), ‘EUNAVFOR MED Operation Sophia: Mandate Extended Until 30 Sep­ tember 2019’ [online], www.consilium.europa.eu/en/press/press-releases/2019/03/29/ eunavfor-med-operation-sophia-mandate-extended-until-30-september-2019/. European Commission (2015), Communication from the Commission to the European Par­ liament, the Council, the European Economic and Social Committee and the Committee of the Regions. A European Agenda on Migration, COM(2015) 240 final. European Commission (2016), Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, COM(2016) 271 final. Amended Proposal. European Commission (2018), Amended Proposal for a Regulation of the European Par­ liament and of the Council on the European Union Agency for Asylum and Repeal­ ing Regulation (EU) No 439/2010. Contribution from the European Commission to the Leaders’ Meeting in Salzburg on 19–20 September, COM(2018) 633 final. European Commission (2019). Communication from the Commission to the European Par­ liament, the European Council and the Council. Progress report on the Implementation of the European Agenda on Migration. COM(2019) 126 final. Fink, M. and K. Gombeer (2018). ‘The Aquarius incident: navigating the turbulent waters of international law’, EJIL blog [online], https://www.ejiltalk.org/the-aquariusincident-navigating-the-turbulent-waters-of-international-law/ FRA (2016), ‘Scope of the Principle of Non-Refoulement in Contemporary Border Man­ agement: Evolving Areas of Law’, European Union Agency for Fundamental Rights, Luxembourg: Publication Office of the EU. FRA (2018), ‘How the EUROSUR Regulation Affects Fundamental Rights’, September, Vienna. Frenzen, W. (2017), ‘The Legality of Frontex Operation Hera-Type Migration Control Practices in Light of the Hirsi Judgement’, in T. Gammeltoft-Hansen & J. VedstedHansen (eds.), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and Migration Control, London: Routledge, pp. 294–313. Frontex Consultative Forum (2018), ‘Sixth Annual Report’ [online], https://frontex.europa. eu/media-centre/news-release/frontex-consultative-forumpublishes-annual-reportMgLqPI. Gammeltoft-Hansen, T. (2018), ‘International Cooperation on Migration Control: Towards a Research Agenda for Refugee Law’, European Journal of Migration and Law, Vol. 20, No. 4, pp. 373–396. Giuffré, M. (2016), ‘Access to Asylum at Sea? Non-Refoulement and a Comprehen­ sive Approach to Extraterritorial Human Rights Obligations’, in V. Moreno-Lax & E. Papastavridis (eds.), Boat Refugees’ and Migrants at Sea: A Comprehensive Approach Integrating Maritime Security with Human Rights, Leiden: Brill Nijhoff, pp. 248–275. Global Legal Action Network (2018), ‘Legal Action Against Italy Over Its Coordination of Libyan Coast Guard Pull-Backs Resulting in Migrant Deaths and Abuse’ [online], www. glanlaw.org/single-post/2018/05/08/Legal-action-against-Italy-over-its-coordination­ of-Libyan-Coast-Guard-pull-backs-resulting-in-migrant-deaths-and-abuse. Guild, E., Costello, C. & Moreno-Lax, V. (2017), ‘Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and of Greece’, Study for the LIBE Committee of the European Par­ liament, www.ceps.eu/system/files/pe%20583%20132%20en_All%281%29.pdf.

Disembarkation and relocation arrangements 173 Hathaway, J. & Gammeltoft-Hansen, T. (2015), ‘Non-Refoulement in a World of Coopera­ tive Deterrence’, Columbia Journal of Transnational Law 53(2), pp. 235–284. International Organisation for Migration (IOM) (2019), ‘IOM Statement: Protecting Migrants in Libya Must Be Our Primary Focus’, 4 February. Jeandesboz, J. (2012), ‘Beyond the Tartar Steppe: EUROSUR and the Ethics of European Border Control Practices’, in P. Burgess & S. Gutwirth (eds.), A Threat Against Europe? Security, Migration and Integration, Brussels: VUB, pp. 111–131. Mann, I., Moreno-Lax, V. & Shatz, O. (2018), ‘Time to Investigate European Agents for Crimes Against Migrants in Libya’, Blog of the European Journal of International Law, 29 March [online], www.ejiltalk.org/time-to-investigate-european-agents-for-crimes-against-migrantsin-libya/. Moreno-Lax, V. & Giuffré, M. (2017), ‘The Rise of Consensual Containment: From “Contactless Control” to “Contactless Responsibility” for Forced Migration Flows’, in S. Juss (ed.), Research Handbook on International Refugee Law, Cheltenham: Edward Elgar. Moreno-Lax, V. & Papastavridis, E. (eds.) (2016), Boat Refugees’ and Migrants at Sea: A Comprehensive Approach Integrating Maritime Security with Human Rights, Leiden: Brill Nijhoff. Neville, D., Sy, S. & Rigon, A. (2016), On the Frontline: The Hotspot Approach to Man­ aging Migration, Study commissioned by the Directorate General for Internal Policies of the European Parliament [online], https://www.europarl.europa.eu/thinktank/en/docu ment.html?reference=IPOL_STU%282016%29556942 Office of the High Commissioner for Human Rights (OHCHR) and United Nations Sup­ port Mission in Libya (UNSMIL) (2018), ‘Desperate and Dangerous: Report on the Human Rights Situation of Migrants and Refugees in Libya’, 20 December [online], www.ohchr.org/Documents/Countries/LY/LibyaMigrationReport.pdf. Papastavridis, E. (2017), ‘Rescuing Migrants at Sea and the Law of International Respon­ sibility’, in T. Gammeltoft-Hansen & J. Vedsted-Hansen (eds.), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and Migration Control, Abingdon: Routledge. Papastavridis, E. (2018), ‘The Aquarius Incident and the Law of the Sea: Is Italy in Violation of the Relevant Rules?’ EJIL: Talk! Blog [online], www.ejiltalk.org/theaquarius-incident-and-the-law-of-the-sea-is-italy-in-violation-of-the-relevant-rules/. Parliamentary Assembly of the Council of Europe (2012), ‘Lives Lost in the Mediterranean Sea: Who Is Responsible?’ Doc. 12895, Committee on Migration, Refugees and Dis­ placed Persons Rapporteur: Ms Tineke Strik, Netherlands, Socialist Group. Peers, S. (2014), ‘New EU Rules on Maritime Surveillance: Will They Stop the Deaths and Push-Backs in the Mediterranean?’, EU Law Analysis [online], https://eulawanalysis. blogspot.com/2014/06/new-eu-rules-on-maritime-surveillance.html. Pijnenburg, A. (2018), ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Mak­ ing in Strasbourg?’ European Journal of Migration and Law, Vol. 20, No. 4, pp. 396–426. Ryan, B. (2010). ‘Extraterritorial Migration Control: What Role for Legal Guarantees?’ In B. Ryan and V. Mitsilegas (eds.), Extraterritorial Migration Control: Legal Challenges, Leiden: Martinus Nijhoff Publishers, pp. 3–38. Rothwell, D.R. & Stephens, T. (2016), The International Law of the Sea, 2nd edition, Oxford: Hart Publishing. Tanaka, Y. (2015), The International Law of the Sea. Second edition. Cambridge: Cam­ bridge University Press. Tsourdi, E. (2016), ‘Bottom-Up Salvation? From Practical Cooperation Towards Joint Implementation Through the European Asylum Support Office’, European Papers, Vol. 1, No. 3, pp. 997–103.

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Tsourdi, E. (2018), ‘Monitoring and Steering Through FRONTEX and EASO 2.0: The Rise of a New Model of AFSJ Agencies?’ Odysseus Network Blog [online], http://eumi grationlawblog.eu/monitoring-and-steering-through-frontex-and-easo-2-0-the-rise-of­ a-new-model-of-afsj-agencies/. UNHCR (2002), ‘Background Note on the Protection of Asylum-Seekers and Refugees Res­ cued at Sea’ [online], www.unhcr.org/protection/globalconsult/3e5f35e94/backgroundnote-protection-asylum-seekers-refugees-rescued-sea.html. UNHCR (2019a), ‘Desperate Journeys: Refugees and Migrants Arriving in Europe and at Europe’s Borders’, January–December [online], https://data2.unhcr.org/en/documents/ download/67712#_ga=2.32806845.281021522.1554713807-520825670.1525790073. UNHCR (2019b), ‘UNHCR – 65 Reported Drowned After Shipwreck Off Coast of Tunisia: Press Release’, 10 May, Geneva [online], www.unhcr.org/news/press/2019/5/5cd5a74c4/ unhcr-65-reported-drowned-shipwreck-coast-tunisia.html. UNHCR (2019c), ‘Detained Refugees in Libya Moved to Safety in Second UNHCR Relocation, Press Release’, 15 April, Geneva [online], www.unhcr.org/news/press/2019/4/5cb60a984/ detained-refugees-libya-moved-safety-second-unhcr-relocation.html.

8

Border management at the external Schengen Borders Border controls, return operations, and obstacles to effective remedies in Greece Aikaterini Drakopoulou, Alexandros

Konstantinou, and Dimitris Koros

8.1 Introduction Border control and return operations conducted at Greece’s land and sea bor­ ders are regulated by the national legal framework which provides fewer guar­ antees than the Returns Directive standards does. The use of detention and/ or the restriction of the freedom of movement of the third-country nationals on the Greek islands (geographical limitation) since the launch of the EUTurkey Statement has become an essential element of border control and return operations. However, third-country nationals are deprived of the possibility to challenge return decisions, as well as decisions adopted in the context of their detention and/or geographical limitation on the islands. Pushbacks at the Greek-Turkish border are linked with grave fundamental rights violations. Given their specific nature, these practices render any scrutiny almost impos­ sible in practice. Over the past decade, the external EU border between Greece and Turkey has been the most popular route for accessing the EU territory. Since 2009, there have been 1.2 million arrivals along the so-called ‘Eastern Mediterra­ nean’ route. This number exceeds the number of arrivals of both the ‘Western’ and ‘Central’ Mediterranean routes combined (Connor 2018). In the beginning of the decade, arrivals by the Greek-Turkish borders were mainly characterised by mixed flows (Hellenic Police 2010–2013). However, from 2014 onwards the vast majority of the people arriving in Greece have a refugee profile. The Greek-Turkish borders became the main entry point for Syrian nationals flee­ ing the civil war. During 2015, the percentage of third-country nationals from Syria, Afghanistan, Iraq, and Somalia arriving in Greece exceeded 91% of the total arrivals (UNHCR 2015). Similarly, in 2016, 89% of the sea arriv­ als in Greece concerned third-country nationals from Syria, Afghanistan, Iraq, and Iran (UNHCR 2016b). The overall picture of arrivals in Greece has not changed significantly to date, as 81% of people arriving come from Syria, Afghanistan, Iraq, the State of Palestine, and the Democratic Republic of the Congo.1

176 Aikaterini Drakopoulou et al. 8.1.1 Border management: the impact on forming the migration routes Two major developments have shaped migration routes to Greece during the last decade: the construction of a fence on the Greek-Turkish land border in 2012, and the publication of the EU-Turkey Statement in 2016. In the beginning of the decade, the Greek-Turkish land border was the most popular entry point into Greece. People either crossed through the Evros River, which runs the biggest part of the land-border, or entered through the approximately 12km of dry land that connects Turkey to Greece. An estimated total of 47,088 individuals in 2010 and 54,974 in 2011 entered the EU territory for the Greek-Turkish land borders. The number of third-country nationals who entered by the Greek-Turkish sea border during this period is instead estimated at 5,190 and 1,030 individuals, respectively (Hellenic Police 2011). The construction of a fence along the Greek-Turkish land border in 2012 led to a significant decrease of Evros land arrivals and triggered the increase of the sea flows (Nielsen 2012). Arrivals from the Greek-Turkish land borders went down to approximately 95% by the end of 2013, while arrivals by the Aegean Sea borders increased by 213, which amounts to a 53% increase compared to 2012 (Hellenic Police 2010–2013). Following a peak of arrivals at the Greek Aegean islands in 2015,2 the EU-Turkey Statement published on 18 March 2016 aimed to ‘end the irregular migration from Turkey to the EU.’3 Publication of the Statement spurred another change in the entry routes. Since March 2016, individuals entering the Greek territory through the Greek islands remain restricted to the islands under conditions of severe over­ crowding, and are prevented from moving to the mainland. Their asylum applica­ tions are examined under the ‘safe third country’ concept vis-à-vis Turkey, with a view to readmitting rejected applicants to Turkey (Dimitriadi 2016). As a result, since the launch of the Statement, the arrivals from the land borders, where the Statement is not applicable, increased sixfold between 2016 and 2018.4 8.1.2  Complaint    mechanisms and effective remedies for human  rights violations within the scope of border management and return operations The prerogative of the states to control the entry and stay of non-nationals in their territory is inherent in the sovereign expression of power over national borders. The same applies when it comes to managing the crossing of the external EU borders and addressing migratory challenges and potential future threats at those borders. However, border management and expulsion operations shall be carried out with full respect for the fundamental rights of the individuals affected. Com­ plying with the obligation to respect human rights entails not only the adoption and the implementation of legislation providing relevant procedural safeguards while conducting border management and return operations but also the develop­ ment of oversight mechanisms and access to effective remedies for victims of human rights violations (Carrera & Stefan 2018).

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8.2 Sea border management As outlined above, the Eastern Aegean Sea is part of the EU external border between Greece and Turkey and one of the main entry points to the EU. A number of national and EU actors are involved in the sea border management and return operations at the Aegean Sea. Apart from the Hellenic Police and the Coast Guard, the Hellenic Navy has also taken part in surveillance and search and rescue opera­ tions (Rapanakis 2014). These three bodies currently fall under the authority of three different Ministries.5 Apart from the national authorities, European Border and Coast Guard, commonly known as Frontex, is running a permanent operation in Greece (Frontex 2019). According to Article 40 of the European Border and Coast Guard Regulation, the deployed officers of Frontex are entitled to ‘perform all tasks and exercise all powers for border control and return.’ In Greece, Frontex is involved in almost every aspect of border management, offering operational help to the national authorities. With regard to the accountability of deployed Frontex officers, it shall be pointed out that, although the latter are under the com­ mand of the Greek authorities, they remain subject to the control and oversight mechanisms applying to the national institution with which they are affiliated (Carrera & Stefan 2018, p. 19).6 8.2.1 Pushback operations The prohibition of refoulement is the cornerstone of refugee protection. The ‘non­ refoulement’ principle is a part of the international, EU, and Greek law. However, especially during the period between late 2012 to spring 2014, numerous allega­ tions for pushbacks to Turkey have been reported (Amnesty International 2013; Gayle 2015; ‘Greek coast guard ‘tried to kill us’’ 2019). Alleged victims claim that their boats were intercepted by Greek Coast Guard vessels, either in inter­ national seas or sometimes even a few hundred meters from the Greek coastline. There are also reports concerning incidents where the alleged victims claimed to have been disembarked to islands, only to be refouled to Turkey. In these inci­ dents, the operation entailed the collaboration between the local Police Officers and Coastal Guards (Amnesty International 2014). In other reported cases, the alleged victims claimed that they have dialled emergency numbers as they were in danger; however, instead of being rescued, the persons were allegedly pushed back to Turkey by the Greek authorities (Pro Asyl 2013). According to the field research conducted by Pro Asyl in 2013, the majority of those who claimed to be victims of illegal refoulement mentioned that their lives were put at risk, they suffered ill-treatment, they were deprived of their personal belongings – including their passports, they were confined to vessels or on islands without access to the outside and without being given food and water, they were never officially registered, and they were never given the opportunity to be heard and seek international protection or to challenge their removal. People claiming to have been subject to pushbacks do not have the practical opportunity to challenge the violation of their rights, since they are no longer in

178 Aikaterini Drakopoulou et al.

Greek territory. In addition, the fact that pushbacks take place in remote places

renders the determination of the liability of the authorities a very difficult task and deters victims from getting involved in a penal procedure with limited likelihood of success. Moreover, the fact that multiple actors are involved in border manage­ ment makes the identification of those responsible even harder. The alleged pushback near Farmakonisi island was one of the very few cases where an investigation for potential violations of the human rights of the individu­ als attempting to reach Greece has been initiated, raising in the process particular concern as to whether victims had indeed access to effective remedies. The case concerns an incident in January 2014 during which a boat carrying 27 individu­ als coming from Afghanistan and Syria had been capsized amid an alleged pushback operation. As a result, eleven Afghans, eight of whom were minors lost their lives. The vessel of the Greek Coast Guard involved in the incident was carrying on a patrol within the context of a joint European Operation ‘Possidon – Thalassia Sinora.’7 Following the incident, a preliminary investigation for potential liabilities of the Coast Guard officers involved in relation to the deaths was initiated before the Prosecutor of Piraeus’ Maritime Court. Part of the evidentiary material of said inves­ tigation was the initial statements of the victims, which were taken, as provided by the Law, by Coast Guard officers, thus allowing doubts regarding the impar­ tiality and independence of those conducting the investigation.8 Moreover, serious concerns were raised because the Greek authorities failed to meet certain crucial procedural guarantees, given the fact that the person appointed as interpreter was a Pakistani national who did not speak any of the languages spoken by the victims.9 In July 2014, pursuant to a Prosecutor’s Act, the case was archived. It is worth noting that, according to the Greek legislation, an appeal against a Prosecutor’s Act is not provided (Greek Council for Refugees). The archiving of the case by the Greek authorities fuelled many reactions10 and prompted the European Com­ missioner on Human Rights to address a letter to the Greek authorities with the following warning: ‘impunity risks covering these serious human rights viola­ tions. This would be a grave mistake. . . . Greek authorities have to take more resolute efforts to ensure accountability for this tragedy.’11 In 2015, the survivors of the Farmakonisi shipwreck submitted an application against Greece before the European Court of Human Rights for violations of Articles 2, 3, and 13 of the European Convention of Human Rights.12 To date, the case is still pending. It is worth mentioning that in the scope of a parallel penal procedure initiated against one of the survivors accused of having been in command of the boat, the latter has been found guilty for the deaths,13 but, interestingly enough, the convict­ ing decision was partially overturned by the Second Degree Penal Court. Pursuant to the latter, the accused was acquitted for the deaths, as it was concluded that these occurred ‘during the towing of the vessel.’14 8.2.2 The EU-Turkey statement, geographical restriction, and detention on the Greek islands As mentioned above, in 2015, Greece faced an unprecedented number of flows.15 Out of the total number of 1,015,078 individuals who entered the EU territory in

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that year, 856,723 individuals entered through the Greek Aegean islands (UNHCR 2016a).16 The continuing massive flows (UNHCR 2016c, 2018b), together with the political context in the EU, led to the development of new and more radi­ cal border management strategies. On 18 March 2016, the EU-Turkey State­ ment was announced by the EU leaders and their Turkish counterparts, aiming to ‘end irregular migration from Turkey to the EU.’17 The Statement, which was based on the approach of the externalisation of EU asylum policy, provided that ‘[a]ll new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey . . . in full accordance with the EU and international standards’ (Betts & Milner 2006, p. 6). Moreover, Turkish authori­ ties were committed to ‘take any necessary measures to prevent new sea or land routes for illegal migration.’ In practice, the concept of ‘safe third country’ came into play, as it was highly likely that a significant number of the newly arrived persons would fulfil the conditions in order to be granted with refugee or subsidiary protection18 and thus they could not be returned/readmitted to Turkey otherwise (European Com­ mission 2016a). Therefore, asylum applications lodged on the Greek islands started being examined under the ‘safe third country’ concept, which was used as a ground for rejecting asylum applications as inadmissible and rendering the readmission of those rejected to Turkey feasible (Alpes, Tunaboylu & Van Liempt 2017). Moreover, in order for the Statement to be effectively implemented, follow­ ing its launch, newly arrived persons entering Greece from the Eastern Aegean islands are subject to a geographical limitation, which entails an obligation not to leave the islands. This has turned the Greek islands into a buffer zone (Pro Asyl & RSA 2017), as newly arrived persons are restricted to the islands and prevented from reaching the mainland. Practices of automatic and upon-arrival detention, combined with pressure on the Greek authorities to increase detention capacity on the islands and the numbers of readmissions, have also been used as tools for the implementation of the EU-Turkey Statement (European Commission 2018; Greek Council for Refugees 2019). 8.2.2.1 Geographical restriction According to L. 4375/2016, issued after the launch of the Statement, a three-day ‘restriction of liberty’ is imposed on all people arriving in Greece. This restriction, which can be further extended for a period not exceeding 25 days, is imposed indiscriminately to all newcomers – even to individuals belonging to vulnerable groups – and entails the prohibition to leave the Reception and Identification Cen­ tre (RIC) and the obligation to remain in it.19 In practice, the restriction of liberty within the RIC is no longer applied on the islands. However, it shall be noted that in two cases brought before the European Court of Human Rights, the Court affirmed that said restriction of liberty amounts to detention for the purposes of Article 5 of the ECHR and that the applicants of the case did not have access to judicial remedies in order to challenge their detention due to practical difficulties and lack of access to legal aid.20

180 Aikaterini Drakopoulou et al. Following the arrival of third-country nationals in Greece, a return decision ‘based on the readmission procedure’ and a detention order are issued by the com­ petent Police Directorate. Both are suspended by a ‘postponement of deportation’ decision of the General Regional Police Director issued a few days later. The latter imposes a restriction of movement, ordering the individual not to leave the island. No individual assessment is taking place prior to its issuance. Similarly, once an asylum application is filed, a geographical restriction is also imposed by the Asylum Service (ECRE 2018). It shall be noted that no individual decision imposing said restriction is issued by the Asylum Service and thus made known to the applicants. Pursuant to a Decision of the Director of the Asylum Service,21 a geographical restriction is imposed to every asylum seeker whose application has been lodged before the Regional Asylum Office of Lesvos, Rhodes, Samos, Leros, Chios, and the Autonomous Asylum Unit of Kos. The geographical restriction shall be waived when applicants belong to any of the categories where the Dublin family provisions are applied or when they are identified as vulnerable according to the national Law. 8.2.2.2 Detention The launch of the implementation of the EU-Turkey statement has had an impor­ tant impact on detention on the Eastern Aegean islands. The Joint Action Plan on the implementation of the EU-Turkey Statement called for the creation of additional detention capacity (European Commission 2016b). In line with that, since 2017 two pre-removal detention facilities have been established in Lesvos and Kos islands, respectively (ECRE 2018). Police stations are widely used for immigration detention in the rest of the islands, namely, Chios, Samos, Leros, and Rhodes. Contrary to the rest of the population, newly arrived individuals coming from countries with low recognition rate are detained upon arrival and remain detained until the examination of their asylum claims is completed, unless they are identi­ fied as vulnerable (Greek Council for Refugees 2018a). This allows criticism as to whether such a practice is in line with the principle of non-discrimination. In addition, rejected asylum applicants are detained upon notification of the seconddegree negative decision.

8.3 Border management in Greek Turkish land borders in Evros The Evros River is the natural north-eastern border between Greece and Turkey. The construction of the fence in 2012 made passages for third-country nationals attempting to cross the land border even more dangerous, as the river proved to be fatal on many occasions (Lee 2017). Border management of the land bor­ der is carried out by the Hellenic Police, the Border Guards (L. 2622/1998), and the Hellenic Army. Moreover, Frontex has a permanent presence in the region,

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performing border control along with the aforementioned actors.22 As explained by the Greek authorities, Frontex personnel is assisting Greek police officers operating at Evros, by organizing Common Operations (Flexible Operational Activities and Focal Points) and assisting the National Operation ‘ASPIDA,’ aiming at the strengthening of the response at the Greek-Turkish borders . . . within the framework of Frontex operations, a great number of officials have become active in Evros area, originating from several Member States of the Organiza­ tion, . . . said officials . . . under the supervision of Greek Police Officers, take part both in the prevention operations (entry prevention) and in the manage­ ment of immigrants after their detection (procedures of nationality identifica­ tion, information, interpretation, etc.). (Ministry of Citizen Protection 2018) 8.3.1 Pushback operations One of the most crucial issues in regard to severe human rights violations in the scope of border management in the Evros region relates to the alleged pushback operations of third-country nationals. Pushbacks have always been a matter of concern in the northern border,23 but, as reported, they are allegedly on the rise since the increase of the flows from Evros,24 as a direct effect of the application of the EU-Turkey Statement. Reports made by lawyers, NGOs, the CPT, and the Commissioner of Human Rights of the Council of Europe25 demonstrate that pushbacks in the Evros region is a standardised practice. It involves the informal arrest and forced return of the newly arrived. According to the recorded practices, actors involved in the alleged pushbacks operations include the Police, the Border Guards, and the Hellenic Army, as it is suggested by the uniforms, badges, and the facilities and vehicles used. In addition, evidence points to the involvement of other actors, such as Frontex or paramilitary groups and persons. The practice is systematic and not occasional: as reports document, it is the first tool used for the management of the flows – instead of the formal procedures foreseen by the Greek legal framework to be used initially. The increasing number of reports corroborates that pushbacks are an unofficial yet standardised practice for the coercive control of the borders and the populations that attempt to reach Greece and Europe. The return takes place either on the spot immediately upon arrival (less often) or after the newcomers have further entered into Greek territory. Reports available refer to refoulement not only of newcomers but also of third-country nationals who have already entered Greek territory and who have applied for asylum or who even enjoy international protection status in Greece or other EU countries (Greek Council for Refugees 2018b). This suggests that the practice is extremely arbitrary and broadly applied. In cases where the arrest takes place away from the

182 Aikaterini Drakopoulou et al.

borders, the third-country nationals are led to detention facilities, most usually

unofficial ones – i.e. abandoned police stations or other buildings – and remain there usually for one night before being returned. It has been recorded that, when the operation is carried out in one day, those under return might remain confined in police or army vans throughout the whole procedure. Informal arrest and deten­ tion practices violate, among others, Article 5 of the ECHR (Greek Council for Refugees 2019). In the scope of the alleged pushback operations, individuals concerned have their possessions checked; as reported, in a considerable number of cases before the arbitrary summary return, newly arrived persons are beaten and ver­ bally insulted, their cell phones and other electric devices are taken from them or destroyed by being thrown in the river, they are stripped of their clothes and shoes, during the operation no food or water is allowed to be consumed by them, let alone provided to them, and they are arbitrarily detained in deplor­ able conditions (Greek Council for Refugees, ARSIS & HumanRights360 2018). As it emerges from the documented incidents, the risk of being sub­ jected to pushback is widespread and could concern anyone: single men, fami­ lies, unaccompanied minors, victims of torture, seriously ill persons, pregnant women, elder people, etc. As noted by the Commissioner for Human Rights in November 2018: Considering that the information available points to the existence of an established practice in this field, the Commissioner urges the Greek authori­ ties to put an end to push-backs and to investigate any allegations of illtreatment perpetrated by members of Greek security forces in the context of such operations. (Commissioner for Human Rights 2018) 8.3.2 Detention Detention, including de facto detention measures, is applied for those arriving from the Evros border. Similarly with those arriving in the islands, newly arrived third-country nationals in Evros, are subjected to a so-called ‘restriction of liberty’ within the Reception and Identification Centre of Fylakio, for a maximum period of 25 days in order for reception and identification procedures to be concluded.26 However, following this 25-day period, those whose deportation is deemed fea­ sible are transferred and further detained for a period which can be prolonged up to 18 months. The detainees have the right to apply for asylum while in detention, and they can be released, provided the Asylum Service issues an Opinion for their release to the Police Director. Otherwise, they can be further detained until the examination of their application is completed. In practice, administrative deten­ tion is used systematically as a key mechanism for the management of the flows and as a strict means of deterrence of irregular entry (CPT 2019; Greek Council for Refugees 2018a).

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8.4 Remedies, oversight, and complaint mechanisms 8.4.1 Remedies and complaints against pushback operations The practice of pushbacks at the Greek-Turkish border, despite being linked with grave fundamental rights violations, by its nature, renders any scrutiny almost impossible. The fact that persons returned are not in the Greek territory makes the initiation of any national legal procedure not easily accessible. Pushback opera­ tions are an informal activity. Therefore, no administrative procedure and rem­ edies are provided by the law. All the more, even if the victims of pushbacks wish to proceed with a penal procedure,27 collecting and providing sufficient evi­ dence is almost unattainable. This relates to the fact that the reported practices take place outside the public eye and the control of independent bodies or other actors.28 Additionally, any electronic evidence that might have been collected by the devices of the persons returned, i.e. mobile phones, are not accessible as the persons returned are deprived of their personal belongings during the pushback operation. In addition, the fact that multiple actors are involved in border manage­ ment makes the identification of those responsible even harder. Since there is a lack of effective international protection in Turkey, the major concern of those who have suffered such treatment is to avoid potential further refoulement to their countries of origin and to regain access to the EU territory in order to seek international protection. Filing a complaint about the human rights violations that they suffered is not one of their priorities. In any event, even if the persons concerned manage to re-enter into the Greek territory, the treatment that they have allegedly previously received by the Greek authorities does not inspire trust that the latter will conduct a thorough investigation of their allegations. On the contrary, individuals who have allegedly suffered pushback are afraid that the initiation of any legal procedure might have a negative impact on their pending asylum applications. 8.4.2 Legal framework for the removal of those apprehended at the Greek-Turkish sea and land borders: a less protective legal framework The removal of third-country nationals from Greece is regulated by two dif­ ferent legal frameworks. L. 3386/200529 regulates the ‘deportation’ of thirdcountry nationals. L. 3907/2011,30 which transposes the Returns Directive31 into the national Greek legal order, refers to the ‘return’ of third-country nationals. However, L. 3907/2011, by making use of the possibility provided by the Returns Directive to limit the scope of the Directive,32 is not applied to those apprehended at the external Schengen borders. In the case of Greece, this exception means that the Returns Directive and relevant EU standards are not applied for those apprehended at the Greek-Turkish borders, i.e. the main entry gate of flows. Therefore, it is the national legal framework, namely L. 3386/2005, regulating

184 Aikaterini Drakopoulou et al. the deportation of irregular third-country nationals, which is applicable for those arrested on the Greek Turkish borders. L. 3386/2005 does not guarantee the same safeguards as L. 3907/2011. Those entering Greece through the Greek Turkish borders are deprived of the proce­ dural safeguards and minimum standards provided by the Returns Directive, and a less protective legal framework is applicable to them. For instance, L. 3386/2005 does not provide for a period of voluntary departure. Moreover, procedural safe­ guards included in Chapter III of the Directive, such as the provision of free legal assistance for challenging the removal decision and the translation of the main elements of decisions related to return – including information on the available legal remedies – are not enshrined in L. 3386/2005. This is also the case for the safeguards regarding detention. More precisely, the obligation to examine alter­ natives to detention, the ex officio judicial review in case of prolonged detention periods, and the release of the person if no reasonable prospect of removal exists, as stipulated in the Returns Directive and introduced in the Greek legislation by L. 3907/2011, are not part of L. 3386/2005. 8.4.3 The Greek Turkish bilateral readmission agreement, the EU Turkish readmission agreement and the impact of the EU-Turkey Statement on return procedures Not only third-country nationals apprehended in the Greek-Turkish borders are subject to a less protective legislation regarding their removal, but also their removal can take place on the basis of an accelerated procedure. Following a bilat­ eral agreement concluded between Greece and Turkey in 2000,33 a Readmission Protocol entered into force in 2002.34 Said Protocol provides an extra-accelerated procedure for those apprehended in ‘a frontier zone’ (sic). This involves the direct notification of the other party (orally, by phone, or fax) concerning the irregular entrance of a third-country national within 14 days from the entrance, and the materialisation of the readmission within one week from the acceptance of the readmission request by Turkey. No specific provision with regards to the protection against refoulement or the right to asylum is provided by the Protocol. However, Article 11 of the Protocol foresees that ‘the Protocol does not affect the rights and the obligations arising from other international agreements binding upon the parties.’ In practice, the extra-accelerated procedure provided by the Protocol, which can be implemented even under an oral procedure between the parties, can significantly underestimate guarantees and access to legal remedies provided against removal by the Greek legal framework. Thus, taking into consideration obstacles in accessing legal rem­ edies in order to challenge a deportation decision, which remains the legal basis of the removal also when the readmission procedure is applied on the basis of the Protocol, effective access to justice can be proven illusionary. The number of persons returned under the Protocol remains low. Since the launch of the implementation of the Protocol in April 2002 and until January 2015, 6,393 requests for the readmission of 137,722 persons have been addressed to the

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Turkish authorities. Out of those, 13,314 requests have been accepted, and 3,838 individuals have been indeed readmitted.35 Additionally, 1,183 persons had been readmitted to Turkey in 2016, 21 in 2017, five in 2018 and none as of March 2019 (Ministry of Citizen Protection 2019). These figures are potentially related with low response and acceptance rates by the Turkish authority reported the previous years (Baldwin-Edwards 2006; EMN 2014, p. 25) and the tension between the relationships of the two states.36 However, even if the number of persons returned to Turkey under the readmis­ sion procedure remains low, significant human rights violations have marked the implementation of the Readmission Protocol. For instance, in the R.T. v. Greece case, the applicant entered Greece from the Evros border and had been detained in a facility close to the border.37 However, he was returned to Turkey on the basis of the readmission Protocol, despite the fact that he had expressed the will to apply for asylum in Greece. The Greek authorities alleged that they had returned the applicant ‘by mistake.’ In addition to the Bilateral Greek-Turkish Protocol, the EU-Turkey Readmission Agreement entered into force in June 2016. However, as further implementing measures have not been adopted, this Agreement is only applied for Turkish citizens who have entered into the Greek territory. Finally, the launch of the 2016 EU-Turkey Statement also had an important impact on the removal procedures applied. As the CJEU found, the Statement is not an international agreement or treaty and thus it is deprived of any legal bind­ ing force (Idriz 2017; Gatti 2016).38 However, the Statement has added significant political pressure on the Greek authorities to increase the number of readmissions to Turkey. Moreover, it is worth noting that since the Statement is not a legally binding instrument, the removal to Turkey of those subject to the latter takes place on the basis of the national legislation (L. 3386/2005), and it is implemented under the readmission procedure foreseen by the 2002 bilateral readmission protocol. Thus, EU standards are not applied in this case. 8.4.4  Lack    of effective judicial remedies to challenge removal,  detention, and geographical limitation Judicial remedies provided by the Greek legislation in order to challenge a removal (deportation) decision as well as a detention order have been repeatedly considered as non-effective. Additionally, no legal remedy is provided in order to challenge the ‘geographical limitation’ on the islands imposed by the Asylum Service. In particular, with respect to the possibility of judicial protection against a deportation decision, third-country nationals are deprived of an effective legal remedy in line with the ECHR guarantees. Inter alia, inadequate interpretation services are provided by the Greek Police. This has a great impact on the provision of information regarding the deportation decision, as well as regarding the right to challenge the latter (Greek Ombudsperson 2018). The application for annul­ ment of a deportation decision, the application for suspension, and the request for an interim order can only be filed by a lawyer. However, access to legal aid is an

186 Aikaterini Drakopoulou et al. issue of concern, as no free legal aid is provided in order to challenge deportation decisions before the Courts. In addition, the majority of the newcomers cannot afford the cost of a private lawyer, and the capacity of the actors offering free legal aid is limited. Thus, legal remedy is not accessible in practice. Moreover, the above-mentioned legal remedies do not have automatic suspen­ sive effect. Therefore, between the application for suspension and/or the request for interim order and the decision of the court, there is no guarantee that the appli­ cant will not be removed for the territory. Moreover, in practice, even if a sus­ pensive effect is requested, the Administrative Courts are not obliged to issue a decision on the interim order. In any event, the Administrative Courts can only examine the legality of the decision and not the merits of the case and, overall, the judicial procedure is lengthy. The lack of effective protection against a deportation decision has been corrob­ orated by the European Court of Human Rights in the ‘R.U. v. Greece’ judgment, where the Court has found a violation of Article 3 in conjunction with Article 13 of the ECHR. In this case, the Court pointed out that legal remedies provided by the Greek law against the deportation order do not have an automatic suspensive effect. Thus, there is no guarantee that the duty judge dealing with the case will take a decision on the request for interim order prior to the removal of the applicant [. . .]. Consequently, the applicant is at any time within the framework of the deportation procedure exposed to removal form the Greek territory.39 The right to effectively access judicial remedy against removal is further jeopard­ ised when it comes to those under removal procedures on the Greek Islands. As the Greek Ombudsperson (2018) observes, there is a lack of previous prompt – at least 24 hours before – information regarding their impending removal. This, in conjunction with the limited access to legal aid, renders it more difficult for those in risk of readmission to exercise their right to judicial protection by challeng­ ing a removal decision. It shall also be noted that Administrative Courts are not based in all the islands of concern. More specifically, the Administrative Courts of First Instance, which are competent to review deportation decisions issued by the Police Directorate of Chios, Samos, and Kos, are based in Lesvos, Syros, and Rhodes, respectively. It is self-evident that this creates additional practical dif­ ficulties and costs as regards the access to judicial remedies. Similarly, no effective remedy is provided by the Greek legislation in order to challenge detention in most of the cases. The remedy is not available in practice, due to lack of interpreters, and therefore translation of the administrative deci­ sions in a language the detainees understand, the lack of free legal assistance to challenge their detention, and the fact that, in particular for those detained on the Aegean Islands, the competent Courts might be based on another island, as mentioned above. The ECtHR has concluded that this was the case in two recent cases.40 Moreover, a limited judicial control is provided within the framework of

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said judicial remedy. The ECtHR has found on various occasions a violation of Article 5(4) of the ECHR on this ground.41 Lastly, individual remedies against the imposition of the geographical limita­ tion imposed by the Asylum Service are not provided. The geographical limitation on each third-country national who enters the Greek territory through the Aegean Islands, with the exception of persons identified as vulnerable and persons eligible for family reunification in virtue of the Dublin Regulation provisions, is imposed automatically together with the lodge of the asylum application on the basis of a regulatory Decision of the Director of the Asylum Service.42 No individual deci­ sion is issued, and thus, due to the lack of an individual and enforceable adminis­ trative act, no appeal can be lodged before the Greek courts. 8.4.5 Oversight and complaint mechanisms Return procedures are externally monitored by the Greek Ombudsperson, which is the national mechanism for monitoring the return of third-country nationals.43 In this respect, the Independent Authority carries out sample controls by visiting pre-removal centres and by being involved in forced return operations. In addi­ tion, the Greek Ombudsperson intervenes on the basis of complaints ‘in order to clarify various questions of legality in the return procedure of the complain­ ants’ (Greek Ombudsperson 2018). Interventions might involve making recom­ mendations to the authorities involved, which, however, are not binding. In the scope of his or her mandate, the Ombudsperson is also entitled to launch ex officio investigations.44 There is an ongoing discussion regarding the qualitative difference between the EU and CoE nonjudicial remedies (Carrera & Stefan 2020). The Greek Ombud­ sperson is the national monitoring mechanism set up in the scope of the Returns Directive. The latter requires lower standards of independence and impartial­ ity compared to the ones required for the national bodies which are part of the National Preventive Mechanism at the CoE’s CPT. However, the Greek Ombud­ sperson enjoys independence and impartiality. The Greek Ombudsperson is also appointed as the ‘National Mechanism for the investigation of arbitrary behaviour’ and has the mandate to collect, record, assess, investigate or refer for further investigation and dis­ ciplinary control, complaints about actions of police officers, the Hellenic Coast Guard, the Fire Brigade and Staff of State Penitentiaries, occurring in the performance of their duties, or abuse of their status regarding: a. torture and other violations to human dignity within the meaning of Article 137Α of the Penal Code, b. illegal intentional attacks against life, health, physi­ cal integrity, personal or sexual freedom, c. illegal use of firearms or illegal behaviour for which there is evidence of racist motivation or discriminatory treatment on the grounds of colour, race, national or ethnic origin, descent, religion, disability, sexual orientation or gender identity.45

188 Aikaterini Drakopoulou et al. Complaints received by the Ombudsperson shall be lodged in writing and shall be addressed by the person concerned themselves or a legal representative of theirs. Therefore, actors who are not directly affected by a violation are excluded, irre­ spectively of whether they have a legitimate interest to file a complaint. However, with a view to better fulfilling its role, as the national mechanism for monitoring the return of third-country nationals, the Greek Ombudsperson is entitled to coop­ erate with nongovernmental organisations (NGOs). This cooperation includes, in particular, the establishment of a network of NGOs, including communities of migrants, aiming to inform the Ombudsperson regarding the problems encoun­ tered in the proceedings and to propose ways of effectively resolving them.46 Ano­ nymity is not an option when filing a complaint. In any case, the vast majority of the newcomers receive no information about their right to file a complaint before the Ombudsperson. Although administrative authorities shall respond without delay with a rea­ soned reply to all reports and questions submitted by the Ombudsperson,47 this has not always been the case. For instance, following a complaint concerning a family from Syria that was readmitted from Kos to Turkey on 20 October 2016, without due consideration of their asylum claims, an investigation for the incident was launched on 9 November 2016 by the General Inspector of Public Adminis­ tration on behalf of the Greek Police; the report of the latter was submitted to the Ombudsperson no earlier than June 2018, only to declare the Inspector incompe­ tent to investigate the liability of Police Officers (Greek Ombudsperson 2018). As far as the mandate of the Greek Ombudsperson as the ‘National Mecha­ nism for the investigation of arbitrary behaviour’ is concerned, it shall be noted that if the outcome of an investigation provides evidence of violations, the Inde­ pendent Authority can refer the complaint for further investigation and discipli­ nary control. However, said investigation and control will be carried out by the same authorities where the officer subject of the complaint belongs institutionally, allowing great concerns regarding the impartiality and independence of the inves­ tigators and the outcomes of their inquiries. Finally, the Complaint Mechanism of Frontex, which was established by Regu­ lation 1624/2016/EU, foresees the possibility to submit individual complaints in case a person believes that they have suffered a violation of their rights by staff involved in Frontex activities.48 However, the effectiveness of the Mechanism is questionable, as no independent inquiry takes place. More precisely, complaints are handled by the Fundamental Rights Officer, who is a Frontex employee. When the complaints concern violations conducted by Frontex staff, the Execu­ tive Director of Frontex is the competent actor to conduct the investigation. All in all, the Complaint Mechanism involves an internal procedure conducted by internal bodies, and therefore lacks independence. A number of other issues, such as the precondition to submit the complaint in writing, the fact that when submit­ ting a complaint anonymity is not an option, and that only individual complaints are allowed, renders the Complaint Mechanism less accessible and even less effective. In any case, the vast majority of the newcomers receive no information regarding their right to file such a complaint.

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8.5 Conclusion Border management in Greece has been linked with patterns and practices which are inconsistent with core human rights obligations. However, judicial reme­ dies remain to a great extent ineffective and not accessible. Thus, third-country nationals are deprived of the possibility to effectively challenge removal deci­ sions, detention orders, or their geographical limitation – a restriction of the right to liberty – before the courts. In addition, pushback operations are prac­ tices, which, by their nature, do not allow efficient scrutiny. The fact that per­ sons returned are not in the Greek territory makes the initiation of any national legal procedure not easily accessible. No administrative judicial remedies are provided by the Greek Law, since said practice in unofficial. Moreover, collect­ ing and providing sufficient evidence, within the scope of penal procedures, is almost unattainable. At the same time, the effectiveness of the oversight and complaint mecha­ nisms is a matter of concern. The Greek Ombudsperson can carry out sample controls of returns, but systematic is not guaranteed. In addition, the latter can address non-binding recommendations to the authorities or refer the findings of investigations related to human rights violations for further investigation. This referral is addressed to the administrative authority to which the officers – the subject of the complaint – belong institutionally, allowing serious concerns regarding the impartiality and independence of the investigation to be conducted. The recently established Frontex Complaint Mechanism involves an internal pro­ cedure conducted by internal oversight bodies, which provides no independence, impartiality, and transparency guarantees. Moreover, additional issues render both the national and the Frontex complaint mechanism less accessible and even less effective. Thus, the provision of effective remedies, as well as of effective oversight and complaint mechanisms for individuals who suffered human rights violations in the scope of border management and return operations, remains an ongoing chal­ lenge in Greece.

Notes 1 United Nations High Commissioner for Refugees (UNHCR), ‘Operational Portal Refugees Situations, Mediterranean Situation, Greece’, https://data2.unhcr.org/en/ situations/mediterranean/location/5179. 2 There were estimated 856,723 sea arrivals during 2015; see UNHCR, ‘Operational Portal Refugees Situations, Mediterranean Situation, Greece’, op. cit. 3 See the press release of the European Council, ‘EU-Turkey Statement’, 18 March 2016, www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/ pdf. 4 See UNHCR, ‘Operational Portal Refugees Situations, Mediterranean Situation, Greece’, op. cit. 5 Hellenic Police is under the authority of Ministry of Citizen Protection, while Hellenic Coastal Guard and Hellenic Navy are under the Ministry of Shipping and Island Policy and the Ministry of National Defence, respectively. 6 See also Art. 21(5) of the EBCG Regulation.

190 Aikaterini Drakopoulou et al. 7 According to the official site of the Hellenic Coast Guard, the joint European Operation ‘Poseidon’ was coordinated by the Hellenic Police and the Hellenic Coast Guard. Fron­ tex officers also participated in the Operation. See Hellenic Coast Guard, ‘Συνάντηση Αξιολόγησης και Προγραμματισμού της Μικτής Ευρωπαϊκής Επιχείρησης “ΠΟΣΕΙΔΩΝΘαλάσσια Σύνορα”’, 23 December 2015, www.hcg.gr/node/11722 (in Greek). 8 See ‘Σάλος για το Φαρμακονήσι και τις προσαγωγές ναυαγών’, TVXS.gr, 25 Janu­ ary 2014, https://tvxs.gr/news/ellada/prosagoges-diasothenton-toy-nayagioy-sto-far makonisi (in Greek). 9 According to the victims, they were asked ‘to sign several papers without know­ ing whether these had to do with the mobiles, the socks, the clothes and personal items we lost or with the missing people. Without an interpreter. Without anything’; see ‘Συγκλονίζουν οι μαρτυρίες των επιζώντων από το Φαρμακονήσι’, Ertopen, 25 January 2014, www.ertopen.com/item/13712-grothia-sto-stomachi-oi-martyries-twnepizwntwn-apo-to-farmakonhsi (in Greek). 10 See ‘Maritime Court Controversially Shelves Farmakonisi Investigation’, ToVima, 1 August 2014, www.tovima.gr/2014/08/01/international/maritime-court-controversially­ shelves-farmakonisi-investigation/. 11 ‘Greece Defends Shelving Drowning Probe’, The National Herald, 12 August 2014, www.thenationalherald.com/55377/greece-defends-shelving-drowning-probe/. 12 ECtHR, Safi and Others v. Greece, application no 5418/15, Case communicated on 22 February 2016. 13 ‘Syrian Man Convicted to 145 Years for Farmakonisi Tragedy’, To Vima, 6 February 2015, www.tovima.gr/2015/02/06/international/syrian-man-convicted-to-145-years-forfarmakonisi-tragedy/. 14 No. 69/2017 Decision of the Five-member Court of Appeal of Rhodes; See ‘Απόφαση σταθμός για το Φαρμακονήσι’, EfSyn, 22 June 2017, www.efsyn.gr/ellada/dikaio­ mata/114724_athoosi-stathmos-gia-farmakonisi (in Greek). 15 The total number of sea arrivals in Greece during 2015 is estimated at 856,723 people, compared to approximately 34,400 in 2014. See UNHCR (2015), op. cit.; IOM (2016). 16 See also UNHCR’s ‘Operational Portal Refugees Situations, Mediterranean Situation, Greece.’ 17 See the press release of the European Council, op. cit. 18 Syrian applicants formed 56.1% of the total number of newly arrived by sea in 2015, followed by Afghans (24.4%) and Iraqis (10.3%). See UNHCR, ‘Nationality of Arrivals to Greece, Italy and Spain, January 2015 – December 2015’, 2015, https:// reliefweb.int/sites/reliefweb.int/files/resources/20160208-Dec_Nationality_of_arriv als_to_Greece_Italy_and_Spain-Monthly_Jan-Dec_2015.pdf. 19 Art. 14(2) and Art. 14(3) L. 4375/2016, Gazette A’ 51, 3 April 2016. 20 ECtHR, J.R. and others v. Greece, application no. 22696/16, 25 January 2018 and ECtHR, O.S.A. and others v. Greece, application no. 39065/16, 21 March 2019. 21 Asylum Service Director Decision No. 18984/2018, Gazette Β’ 4427, 5 October 2018. 22 Indeed, the Executive Director of Frontex, Fabrice Leggeri, has requested from the gov­ ernment the strengthening of the Agency’s presence in the region. See in ‘Στον βρόντο η πρόταση για επιπλέον συνοριοφύλακες’, ToVima, 23 February 2019, www.tovima. gr/2019/02/23/society/ston-vronto-i-protasi-gia-epipleon-synoriofylakes/ (in Greek). 23 Friends of Pro Asyl, Foundation Pro Asyl, and Group of Lawyers for the Rights of Refu­ gees and Migrants, ‘The Truth May Be Bitter, but Must Be Told – The Situation of Ref­ ugees in the Aegean and the Practices of the Greek Coastguard’, October 2007, www. proasyl.de/wp-content/uploads/2015/12/PRO_ASYL_Report_Refugees_in_Greece_ The_truth_may_be_bitter_but_it_must_be_told_Oct_2007.pdf; Human Rights Watch, ‘Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union’, November 2008, www.hrw.org/report/ 2008/11/26/stuck-revolving-door/iraqis-and-other-asylum-seekers-and-migrantsgreece/turkey; Norwegian Organisation for Asylum Seekers, Norwegian Helsinki

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26 27

28 29 30

31 32 33 34 35 36

37

191

Committee and AITIMA, ‘Out the Back Door: The Dublin II Regulation and Ille­ gal Deportations from Greece’, October 2009, www.statewatch.org/news/2009/oct/ greece-illegal-deportations-report.pdf. From the 3,784 land arrivals of 2016 to 6,592 in 2017 and 18,014 in 2018, while until 24.3.2019 the number for 2019 is 2,529; see in UNHCR’s operational Portal Refugees Situations, Mediterranean Situation, Greece, op. cit. See inter alia Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), ‘Report on the Visit to Greece from 10 to 19 April 2018’, CPT/Inf (2019) 4, 19 February 2019, https://rm.coe. int/1680930c9a; Council of Europe, Commissioner for Human Rights, ‘Report of the Commissioner for Human Rights of the Council of Europe Dunja Mijatović Following Her Visit to Greece from 25 to 29 June 2018’, CommDH (2018)24, 6 November 2018, https://bit.ly/2Opvm05; UNHCR, ‘Desperate Journeys: Refugees and Migrants Arriv­ ing in Europe and at Europe’s Borders January–August 2018’, September 2018 https:// bit.ly/2O1NSj8, pp. 17–18; UNHCR, ‘Desperate Journeys: Refugees and Migrants Arriving in Europe and at Europe’s Borders, January–December 2018’, January 2019, https://bit.ly/2E35pl3, p. 12; Greek Council for Refugees, Arsis and HumanRights360, ‘The New Normality: Continuous Push-Backs of Third Country Nationals on the Evros River’, 10 December 2018, https://bit.ly/2DsFj9S; Human Rights Watch, ‘Greece: Violent Pushbacks at Turkey Border’, 18 December 2018, https://bit.ly/2SHfYme; National Commission for Human Rights, ‘Statement on Complaints Regarding Infor­ mal Push-Backs at the Region of Evros’, 29 November 2018, https://bit.ly/2SHpxkW. Art. 14 (2) L.4375/2016. A positive result of the systematic reporting of pushbacks is the inquiry ordered by the Public Prosecutor of Orestiada: See L. Nijkrake, ‘Greek Prosecutor Investigating Alle­ gations “Systematic” Violence Against Migrants at Evros River’, CBC, 6 March 2019, www.cbc.ca/news/world/greek-prosecutor-investigating-allegations-of-systematic­ violence-against-migrants-at-evros-river-1.5043460. Approaching the borders is a forbidden and penalised act, according to L. 376/1936, Gazette Α’ 546/1936. L. 3386/2005, Entry, Residence and Social Integration of Third Country Nationals on the Greek Territory, Gazette Α’ 212, 23 August 2005. L. 3907/2011 on the establishment of an Asylum Service and a First Reception Service, transposition into Greek legislation of Directive 2008/115/EC ‘on common standards and procedures in Member States for returning illegally staying third country nation­ als’ and other provisions, Gazette A’ 7, 26 January 2011. Directive 2008/115/EC on common standards and procedures in member states for returning illegally staying third-country nationals, L348/98, 24 December 2008. Art. 2 Directive 2008/115/EC. Agreement on Combating Crime, Especially Terrorism, Organized Crime, Illicit Drug Trafficking and Illegal Immigration as of 20 January 2000, ratified by the Greek Parlia­ ment by L. 2926/2001, Gazette A’ 139, 27 June 2001. L. 3030/2002, Gazette A’ 163, 15 July 2002. ‘Απογοητευτικά τα στοιχεία επανεισδοχής μεταναστών στην Τουρκία’, ToVima, 21 April 2015, www.tovima.gr/2015/04/21/society/ypeks-apogoiteytika-ta-stoixeia-epa neisdoxis-metanastwn-stin-toyrkia/ (in Greek). For example, in June 2018, the Turkish Authorities announced that they were suspending the implementation of the Readmission protocol due to tension in Greek-Turkish inter­ national relationships provoked by the fact that Greek courts have rejected an extradition request for eight Turkish servicemen who applied for asylum in Greece: ‘Αντιδράσεις για το “πάγωμα” της συμφωνίας επανεισδοχής από την Τουρκία’, Huffingtonpost.gr, 7 June 2018, www.huffingtonpost.gr/entry/antidraseis-yia-to-payoma-tes-semfoniasepaneisdoches-apo-ten-toerkia_gr_5b195012e4b0734a993c03f8 (in Greek). ECtHR, R.T. v. Greece, application No. 5124/11, 11 February 2016.

192 Aikaterini Drakopoulou et al. 38 CJEU, Cases T-192/16, T-193/16, T-257/16 NF, NG and NM v. European Council, Order of 28 February 2017 and CJEU, Cases C-208/17 P, C-209/17 P and 210/17 P NF, NG and NM v European Council, Order of 12 September 2018. 39 ECtHR, R.U. v. Greece, application no 2237/08, 7 June 2011, para. 77. 40 ECtHR, J.R. and Others v. Greece, ibid.; ECtHR, O.S.A. v. Greece, ibid. 41 See e.g. ECtHR, Rahimi v. Greece, application No. 8687/08, 5 April 2011; R.U. v. Greece, application No. 2237/08, 7 June 2011; C.D. v. Greece, application No. 33468/10, 19 March 2014; S.Z. v. Greece, application No. 66702/13, 21 June 2018. 42 Asylum Service Director Decision 18984, Gazette B 4427, 5 October 2018. 43 Article 23 (6) L. 3907/11 and Joint Ministerial Decree 4000/4/57 – ia/ 24 October 2014. 44 Following allegations on refoulement of Turkish nationals to Turkey, the Ombudsper­ son launched an ex officio investigation on 6 June 2017, aiming at the examinations of the complaints, the identification of the actors involved in the practice, the role of the relevant authorities on the matter, the inquiry that has taken place on the case and its results. Until now, no result has been made public concerning the outcome of the Independent Authority’s inquiry; see the Greek Ombudsperson, Decision no 105, 6 June 2017, www.synigoros.gr/resources/20170609-apof-ayt-ereyn-epanaprooth.pdf (in Greek). 45 L. 4443/2016 (Part D), Gazette A’ 232, 9 December 2016. 46 Article 4 (1) Joint Ministerial Decree 4000/4/57 – ia, 24 October 2014. 47 Ibid. 48 European Border and Coast Guard Agency (Frontex), Complaint Mechanism, https:// frontex.europa.eu/fundamental-rights/complaint-mechanism/ and European Border and Coast Guard Agency (Frontex), Lodge a Complaint, https://frontex.europa.eu/ contact/lodge-a-complaint/.

References Alpes, M.J., Tunaboylu, S. & Van Liempt, I. (2017), ‘Human Rights Violations by Design: EU-Turkey Statement Prioritises Returns from Greece Over Access to Asylum’, Policy Briefs, 29, Migration Policy Centre, www.borderline-europe.de/sites/default/files/back ground/RSCAS_PB_2017_29_MPC.pdf. Amnesty International (2013), ‘Greek Authorities Put Lives in Danger by Pushing Refu­ gees and Migrants Back to Turkey’, 9 July, www.amnesty.org/en/latest/news/2013/07/ greek-authorities-put-lives-danger-pushing-refugees-and-migrants-back-turkey/. Amnesty International (2014), ‘Greece: Frontier of Hope and Fear – Migrants and Refu­ gees Pushed Back at Europe’s Border’, 29 April, www.amnesty.org/en/documents/ EUR25/004/2014/en/. Baldwin-Edwards, M. (2006), ‘Migration Between Greece and Turkey: From the “Exchange of Populations” to Non-Recognition of Borders’, South East Europe Review, Vol. 3, http://aei.pitt.edu/7043/1/Migration_between_Greece_and_TurkeyV3a.pdf. Betts, A. & Milner, J. (2006), ‘The Externalisation of EU Asylum Policy: The Position of African States, Centre on Migration, Policy and Society’, Working Paper No. 36, University of Oxford, Centre on Migration, Policy and Society, www.compas.ox.ac.uk/ wp-content/uploads/WP-2006-036-Betts-Milner_EU_Asylum_Policy_Africa.pdf. Carrera, S. & Stefan, M. (2018), Complaint Mechanisms in Border Management and Expulsion Operations in Europe: Effective Remedies for Victims of Human Rights Viola­ tions? Brussels: Centre for European Policy Studies (CEPS), 26 March. Carrera, S. & Stefan, M. (2020), ‘Justicing Europe’s Frontiers: Effective Access to Justice in Bordering and Expulsion Policies’, in S. Carrera & M. Stefan (eds.), Fundamental

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193

Rights Challenges in Border Controls and Expulsion of Irregular Immigrants: Com­ plaint Mechanisms and Access to Justice in the European Union, Routledge Series on Human Rights. Connor, P. (2018), ‘The Most Common Mediterranean Migration Paths into Europe Have Changed Since 2009’, Pew Research Center, 18 September, www.pewresearch.org/fact­ tank/2018/09/18/the-most-common-mediterranean-migration-paths-into-europe-have­ changed-since-2009/. Council of Europe, Commissioner for Human Rights (2018), ‘Report of the Commissioner for Human Rights of the Council of Europe Dunja Mijatović Following Her Visit to Greece from 25 to 29 June 2018’, CommDH (2018)24, 6 November. Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (2019), ‘Report on the visit to Greece from 10 to 19 April 2018’, CPT/Inf (2019) 4, 19 February. Council of the European Union (2016), ‘EU-Turkey Statement’, Press office – General Secretariat of the Council, Press Release 144/16, 18 March, www.consilium.europa.eu/ en/press/press-releases/2016/03/18/eu-turkey-statement/pdf. Dimitriadi, A. (2016), ‘The Impact of the EU-Turkey Statement on Protection and Recep­ tion: The Case of Greece’, WORKING PAPER 15, Stiftung Mercato/IAI/IPC, www.iai. it/sites/default/files/gte_wp_15.pdf. European Border and Coast Guard Agency (Frontex) (2019), ‘2018 in Brief’, 18 February, https://frontex.europa.eu/assets/Publications/briefreport2018/12/. European Commission (2016a), ‘Fact Sheet: EU-Turkey Statement, Questions and Answers’, Press Release Database, 19 March, http://europa.eu/rapid/press-release_MEMO-16-963_ el.htm. European Commission (2016b), Communication from the Commission to the European Par­ liament, the European Council and the Council, Fourth Report on the Progress made in the Implementation of the EU-Turkey Statement, Joint Action Plan on the Implementation of the EU-Turkey Statement, Annex 1, COM (2016) 792 final, 8 December, https://ec.europa. eu/transparency/regdoc/rep/1/2016/EN/COM-2016-792-F1-EN-ANNEX-1-PART-1.PDF. European Commission (2018), ‘EU-Turkey Statement – Two Years on’, April, https:// ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european­ agenda-migration/20180314_eu-turkey-two-years-on_en.pdf. European Council on Refugees and Exiles (ECRE) (2018), ‘AIDA Report on Greece Update 2017’, March, www.asylumineurope.org/reports/country/greece. European Migration Network (2014), ‘Good Practices in the Return and Reintegration of Irregular Migrants: Member States’ Entry Bans Policy and Use of Readmission Agree­ ments Between Member States and Third Countries’, Synthesis Report for the EMN Focused Study, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/ networks/european_migration_network/reports/docs/emn-studies/emn_study_reentry_ bans_and_readmission_agreements_final_december_2014.pdf. Friends of Pro Asyl, Foundation Pro Asyl and Group of Lawyers for the Rights of Refu­ gees and Migrants (2007), ‘The Truth May Be Bitter, but Must Be Told – The Situation of Refugees in the Aegean and the Practices of the Greek Coastguard’, October, www. proasyl.de/wp-content/uploads/2015/12/PRO_ASYL_Report_Refugees_in_Greece_ The_truth_may_be_bitter_but_it_must_be_told_Oct_2007.pdf. Gatti, M. (2016), ‘The EU-Turkey Statement: A Treaty That Violates Democracy (Part 1 of 2)’, blog of the European Journal of International Law, www.ejiltalk.org/ the-eu-turkey-statement-a-treaty-that-violates-democracy-part-1-of-2/.

194 Aikaterini Drakopoulou et al. Gayle, E. (2015), ‘Greece’s Illegal Push Backs of Asylum Boats Puts Lives at Risk, Says Amnesty International’, Euronews, 25 August, www.euronews.com/2015/08/25/ greece-routinely-pushes-back-immigrant-boats-out-to-sea-says-amnesty. ‘Greece Defends Shelving Drowning Probe’, 2014, The National Herald, 12 August. ‘Greek Coast Guard “Tried to Kill Us,” Father Of Drowned Migrant Girl Says’, 2019, Daily Sabah, 15 January, www.dailysabah.com/turkey/2019/01/15/greek-coast-guard­ tried-to-kill-us-father-of-drowned-migrant-girl-says. Greek Council for Refugees (2014), ‘One Year Following the Tragic Shipwreck of Janu­ ary 20th, 2014, Off the Coast of Farmakonisi Island, with 8 Children and 3 Women as Victims’, undated, www.gcr.gr/en/ekdoseis-media/echr-cases/echr-cases-decisions/ item/432-enas-xronos-meta-to-tragiko-navagio-tis-20is-ianouariou-2014-ekso-apo-tofarmakonisi-me-thymata-8-paidia-kai-3-gynaikes. Greek Council for Refugees (2018a), ‘Borderlines of Despair: First-Line Reception of Asylum Seekers at the Greek Borders’, 25 May, www.gcr.gr/media/k2/attachments/ SCIZReportZfinalZPDF.pdf. Greek Council for Refugees (2018b), ‘Reports and Testimonies of Systematic Pushbacks in Evros’, 20 February, www.gcr.gr/media/k2/attachments/ReportZ08032018.pdf. Greek Council for Refugees (2019), ‘Η Διοικητική Κράτηση στην Ελλάδα: Διαπιστώσεις από το πεδίο (2018)’, 28 March, www.gcr.gr/media/k2/attachments/GCR_Ekthesi_ Dioikitik_Kratisi_2019.pdf. Greek Council for Refugees, Arsis and HumanRights360 (2018), ‘The New Normality: Continuous Push-Backs of Third Country Nationals on the Evros River’, 10 December. The Greek Ombudsperson (2018), ‘Special Report on Return of Third Country Nationals – Special Report 2017’, September, Athens, www.synigoros.gr/resources/docs/2018_epistrofes_eng_web.pdf. Hellenic Coast Guard (2015), ‘Συνάντηση Αξιολόγησης και Προγραμματισμού της Μικτής Ευρωπαϊκής Επιχείρησης “ΠΟΣΕΙΔΩΝ-Θαλάσσια Σύνορα” ’, 23 December, www.hcg. gr/node/11722. Hellenic Police, ‘Statistic Data on Illegal Immigration, Immigrants and Traffickers Arrested by for Illegal Entry and Residence Per Nationality: 2010–2013’, www.astynomia.gr/ index.php?option=ozo_content&perform=view&id=78538&Itemid=73&lang=. Hellenic Police, ‘Statistic Data on Illegal Immigration, Immigrants and Traffickers Arrested by for Illegal Entry and Residence Per Nationality: 2011’, www.astynomia.gr/index. php?option=ozo_content&perform=view&id=5071&Itemid=429&lang=. Human Rights Watch (2008), ‘Stuck in a Revolving Door: Iraqis and Other Asy­ lum Seekers and Migrants at the Greece/Turkey Entrance to the European Union’, November, www.hrw.org/report/2008/11/26/stuck-revolving-door/iraqis-and-other-asylumseekers-and-migrants-greece/turkey#. Human Rights Watch (2018), ‘Greece: Violent Pushbacks at Turkey Border’, 18 December. Idriz, N. (2017), ‘The EU-Turkey Statement or the “Refugee Deal”: The Extra-Legal Deal of Extraordinary Times?’ in D. Siegel & V. Nagy (eds.), The Migration Crisis? Crimi­ nalization, Security and Survival, The Hague: Eleven Publishing. International Organization for Migration (IOM) (2016), ‘Global Migration Trends Factsheet 2015’, April, http://gmdac.iom.int/global-migration-trends-factsheet. Lee, L. (2017), ‘Evros River: Tales of Death and Despair at the Edge of EU’, Aljazeera, 10 December, www.aljazeera.com/news/2017/12/desperate-journey-refugee-1712161341 11661.html. ‘Maritime Court Controversially Shelves Farmakonisi Investigation’, 2014, ToVima, 1 August.

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Ministry of Citizen Protection (2018), Comments of the Ministry of Citizen Pro­ tection on the Report of the Commissioner for Human Rights of the Council of Europe Following Her Visit to Greece from 25 to 29 June 2018, https://rm.coe.int/ comments-by-the-greek-authorities-to-the-report-of-the-council-of-euro/16809078d4. Ministry of Citizen Protection (2019), ‘Επιστροφή τριών παράτυπων μεταναστών στην Τουρκία’, 27 March, www.ypes-dt.gr/index.php?option=ozo_content&lang=GR&perfo rm=view&id=6710&Itemid=681. National Commission for Human Rights (2018), ‘Statement on Complaints Regarding Informal Push-Backs at the Region of Evros’, 29 November. Nielsen, N. (2012), ‘Fortress Europe: A Greek Wall Close Up’, EUobserver, 21 December, https://euobserver.com/fortress-eu/118565. Nijkrake, L. (2019), ‘Greek Prosecutor Investigating Allegations “Systematic” Violence Against Migrants at Evros River’, CBC, 6 March. Norwegian Organisation for Asylum Seekers, Norwegian Helsinki Committee and AITIMA (2009), ‘Out the Back Door: The Dublin II Regulation and Illegal Deportations from Greece’, October, www.statewatch.org/news/2009/oct/greece-illegal-deportations-report.pdf. Pro Asyl (2013), ‘Pushed Back – Systematic Human Rights Violations Against Refugees in the Aegean Sea and the Greek-Turkish Land Border’, November, www.proasyl.de/ en/material/pushed-back-systematic-human-rights-violations-against-refugees-in-the­ aegean-sea-and-the-greek-turkish-land-border/. Pro Asyl & Refugee Support Aegean (RSA) (2017), ‘Refugees Trapped in a Buffer Zone’, 17 March, www.proasyl.de/wp-content/uploads/2015/12/2017-03-17-RSA-short-pol­ icy-paper-Turkey-statement.pdf. ‘Syrian Man Convicted to 145 Years for Farmakonisi Tragedy’, ToVima, 2015, 6 February. UNHCR (2015), ‘Greece Refugee Emergency Response – Update #8’, 29 November–31 December, http://reliefweb.int/report/greece/greece-refugee-emergency-response-update­ 8-29-november-31-december-2015. UNHCR (2015), ‘Nationality of Arrivals to Greece, Italy and Spain, January 2015– December 2015’. UNHCR (2016a), ‘Mediterranean Sea Arrivals – 2015 Data – by Location, Country of Arrival, Demographic and Country of Origin’, 22 January, https://data2.unhcr.org/en/ documents/details/46781. UNHCR (2016b), ‘Refugees & Migrants Sea Arrivals in Europe – Monthly Data Update: December 2016’, 31 December, https://reliefweb.int/report/greece/refugeesmigrants-sea-arrivals-europe-monthly-data-update-december-2016. UNHCR (2016c), ‘Greece Data Snapshot’, 1 April, https://data2.unhcr.org/en/documents/ details/47278. UNHCR (2018a), ‘Desperate Journeys: Refugees and Migrants Arriving in Europe and at Europe’s Borders January–August 2018’, September. UNHCR (2018b), ‘Over One Million Sea Arrivals Reach Europe in 2015’, 30 Decem­ ber, www.unhcr.org/news/latest/2015/12/5683d0b56/million-sea-arrivals-reach-europe2015.html. UNHCR (2019), ‘Desperate Journeys: Refugees and Migrants Arriving in Europe and at Europe’s Borders, January–December 2018’, January. UNHCR, Operational Portal Refugees Situations, Mediterranean Situation, Greece, https:// data2.unhcr.org/en/situations/mediterranean/location/5179. ‘Αντιδράσεις για το “πάγωμα” της συμφωνίας επανεισδοχής από την Τουρκία’, 2018, Huffingtonpost.gr, 7 June, www.huffingtonpost.gr/entry/antidraseis-yia-to-payoma-tessemfonias-epaneisdoches-apo-ten-toerkia_gr_5b195012e4b0734a993c03f8.

196 Aikaterini Drakopoulou et al. ‘Απογοητευτικά τα στοιχεία επανεισδοχής μεταναστών στην Τουρκία’, 2015, ToVima, 21 April. ‘Απόφαση σταθμός για το Φαρμακονήσι’, 2017, EfSyn, 22 June. Rapanakis, S. (2014), ‘Επιστρατεύεται το Πολεμικό Ναυτικό για την αντιμετώπιση του κύματος προσφύγων’, Avgi, 12 July, www.avgi.gr/article/10836/3309198. ‘Σάλος για το Φαρμακονήσι και τις προσαγωγές ναυαγών’, 2014, TVXS.gr, 25 January. ‘Στον βρόντο η πρόταση για επιπλέον συνοριοφύλακες’, 2019, ToVima, 23 February. ‘Συγκλονίζουν οι μαρτυρίες των επιζώντων από το Φαρμακονήσι’, 2014, Ertopen, 25 January.

9 A practical evaluation of border activities in Romania

Control, surveillance, and

expulsions1

Madalina Moraru and Felicia Nica 9.1 Introduction: the increasing number of arrivals in 2017 An emigration country – the highest number of citizens migrating to other member states in the EU,2 Romania has commonly been perceived by asylum seekers and immigrants as a transit country towards reaching Western EU member states. Demographically, Romania is the EU country with the lowest percentage of immigrants out of the total population.3 Nevertheless it has started to contend with slightly growing immigration following its accession to the Euro­ pean Union (EU). Although Romania borders both EU countries (Hungary and Bulgaria) and non-EU countries (Moldova, Ukraine, and Serbia), it has not been on the initial Western Balkan route of the migration influx of 2015.4 This is due to the fact that Hungary, unlike Romania, is part of Schengen, and thus constitutes an easier route for migrants to reach Western European countries. However, the construction of the Hungarian wall at the border with Serbia shifted the migra­ tion route, for a short period of time, through Romania, either by land or from the Black Sea, in 2017.5 As a consequence, in 2017, Romania registered the highest number of asylum applications since 2004.6 The number of asylum applications in 2017 has more than doubled in comparison with the previous year.7 The top five nationalities of asylum seekers in Romania, in 2017, were Iraqis, Syrians, Afghanis, Pakistanis, and Iranians (AIDA 2017, p. 7). The biggest group of asylum seekers in that same year were Iraqis and not Syrians,8 as it was the previous year.9 Out of the total number of asylum seekers registered in 2017, the majority were women, children, and unaccompanied minors (AIDA 2017, p. 8). According to the 2017 Evaluation of the activity of the Romanian Border Police, the border guards have apprehended a quite high number of foreign citizens – 5,846 – who were considered to have tried to cross the border illegally. They were reported by the Police to have acted illegally at the border because of attempting to cross the border organised in groups of migrants, with the support of smugglers (Romanian Border Police 2018). The reports of the Coast Guard also revealed an increasing number of interceptions of boats in August and September 2017, including incidents involving a high number of children and women.10 Following the redirection of the Western Balkan migration route through Roma­ nia in 2017, human rights challenges in border management increased. Following

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the large number of arrivals at the southern border with Serbia, human rights incidents also increased, ranging from: border police unnecessarily shooting at several cars suspected of transporting irregular migrants which ended up in severe injuries of several third-country nationals;11 pushbacks; automatic detention; and lack of information or deliberate misinformation on complaint mechanisms. In addition, the increasing number of court proceedings reviewing the legality of decisions declaring third-country nationals undesirable revealed systemic short­ comings in the Romanian complaint mechanisms regarding the rights of defence of the complaints. This chapter will analyse the procedural route taken by the complainants to obtain remedy against the systemic violation of their rights of defence. While Romania’s efforts to comply with the EU’s and international obligations in the field of asylum and immigration have attracted some scholarly attention,12 the specific issue of the complaint mechanisms available to third-country nation­ als subject to border procedures has been completely overlooked by the literature. This chapter aims to analyse whether Romania has a complaint mechanism that can effectively address allegations of human rights violations, and misconduct and violence by border guards and other relevant law enforcement authorities within the framework of migration management activities. It will start by first out­ lining which are the authorities responsible for border and migration enforcement, the actors competent to assess complaints against human rights violations and the mechanisms allowing for redress against the action or inactions leading to expul­ sions. It will then proceed to examine if the available complaint mechanisms meet the standards imposed by the EU and Council of Europe’s legislation on internal and external accountability.

9.2 The domestic legal framework governing border control 9.2.1 Actors and mechanisms of complaint This section analyses if Romania has a complaint mechanism that can effectively address allegations of human rights violations and misconduct and violence by border guards and other relevant law enforcement authorities within the frame­ work of migration management activities. More specifically, the section examines if the complaint mechanism meets the standards imposed by the EU and Council of Europe’s legislation. In this sense, the examination will look into the internal accountability structure and measures of the Romanian Border Police as well as into the external accountability structures. 9.2.1.1 Disciplinary procedure against the Romanian Border Police conduct The internal accountability structure of the Romanian Border Police is repre­ sented by a disciplinary procedure, prescribed by Law No. 360 of 2002 on the Sta­ tus of the Policeman. The disciplinary procedure is not public.13 The disciplinary

Evaluation of border activities in Romania 199 sanctions are established and applied only after a preliminary investigation and after the Disciplinary Council is consulted on this matter.14 The preliminary inves­ tigation aims to establish the existence/nonexistence of the misconduct and cul­ pability regarding the aspects brought to their attention or known and the causes and the specific circumstances in which these have occurred. The preliminary investigation may be ordered by various authorities: the person who has the com­ petence in appointing the investigated policeman or the head of the unit; the head of the unit or educational institution of the Ministry of Internal Affairs, where the policeman is delegated or attending courses or taking career examinations; or the head of the institution subordinated to the Ministry of Internal Affairs which coor­ dinates and controls the public services.15 The police officer, who is investigated, is notified and heard, and he or she has the right to be assisted by a lawyer at the preliminary investigation. The police officer assigned to carry out the preliminary investigation has to have legal studies, or he or she must be part of the criminal investigation bodies and, as a general rule, he or she must have the same rank as the officer investigated.16 The police officer who assessed the misconduct drafts a final report and presents it to the police officer who ordered the investigation. The latter determines the appropriate sanction. The officer sanctioned may appeal the decision before the superior officer. 9.2.1.2 Criminal complaints against the Romanian Border Police conduct In Romania, the person who wishes to claim a violation of his or her rights deriv­ ing from actions and decisions taken in the context of border control has at his disposal the ordinary national legal remedies (criminal complaint) and adminis­ trative complaint before the Romanian Ombudsman (People’s Advocate). These are the external actors, who as mentioned in the first chapter of this book are mandated to oversee border and expulsion programmes and activities and receive complaints from the persons who are ill-treated by the Border Police officers. In case of excessive use of force or ill-treatment, the only remedies available are the ones provided by the criminal law and administrative complaint before the Ombudsman. The responsible authorities for handling such complaints are the criminal prosecution bodies (prosecutor, criminal investigation bodies of the judiciary, and special criminal investigation bodies).17 Some of the Border police officers are criminal investigation bodies for border criminal offences and crossborder crimes. The purpose of the prosecution is gathering of the necessary evi­ dence regarding the existence of the offenses, the identification of the offenders, and the determination of their criminal liability in order to determine whether or not there is a case for the prosecution (Article 285 Criminal Procedure Code). A criminal complaint may be introduced by the concerned person when this is possible and when the Criminal Procedure Code requires a preliminary complaint from the harmed person in order to start the criminal investigation (in case of some offences such as the crime of battery, the complaint of the victim is neces­ sary in order to commence the criminal investigations). In addition, the criminal

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investigation may start ex officio when the criminal investigative body discovers that a crime has been committed or it may be requested by the legal representative of the person concerned. The criminal complaint has no suspensive effect over complained actions or decisions adopted in the context of border management. 9.2.1.3 The Romanian Ombudsman The main external accountability mechanism is the procedure before the Ombuds­ man. The Romanian Ombudsman is an autonomous public authority, independent of any public authority, and has as its purpose the defence of individuals’ rights and freedoms in their relationship with the public authorities (including the police and wider criminal justice system).18 Since 2004, individuals’ complaints regarding a possible violation of funda­ mental rights and freedoms by the Police bodies are examined and solved within a specialised department ‘Army, Justice, Police, Penitentiaries,’ coordinated by a deputy Ombudsman.19 Since 2018, when the Children’s Ombudsman Institution was established in Romania,20 children have the possibility to lodge complaints directly to the Children’s Ombudsman, irrespective of their nationality.21 According to Article 13(1)b) and c) of the Law No. 35/1997 on organisation and functioning of the Institution of the Ombudsman, as amended, the Romanian Ombudsman has wide reviewing competences both in terms of the breadth of human rights violations, remedies, and ex officio powers. The Ombudsman com­ petences range from deciding on the petitions submitted by individuals harmed by violations of their rights and freedoms by public administration authorities; verifying the legal settlement of petitions received; and asking the public admin­ istration authorities or civil servants concerned to put an end to the violation of individuals’ rights and freedoms, to restore the petitioner his rights, and to redress the damages thus caused. Furthermore, the Institution of the Ombudsman shall exercise its duties ex officio or upon the request of individuals, companies, associ­ ations or other legal entities, as well as unannounced, by making visits to places of detention, according to the law.22 The petitions may be addressed by the persons mentioned in paragraph (1), irrespective of their nationality, age, sex, political affiliation, or religious beliefs. According to Article 15(1), petitions must be submitted to the Ombudsman in writing and must indicate the full name and domicile of the individual aggrieved in his or her rights and freedoms, the specific rights and freedoms violated, as well as the concerned administrative authority or civil servant. The complainant must also prove the delay or the refusal of the public administration to legally solve his or her request. Anonymous petitions cannot be taken into consideration and those directed against violations of civic rights or freedoms through acts or deeds of the public administrative authorities shall be brought to the Ombudsman no later than one year from the date on which the violations occurred or the date on which the person became aware of them.23 In our view, the extensive reviewing powers of the Ombudsman, as well as the long deadline for submitting complaints, have the potential of making the

Evaluation of border activities in Romania 201 Ombudsman an effective complaint mechanism, at least on paper. In addition to the wide scope of remedial powers, the Ombudsman inclusively interpreted that the rules regarding the right to have an interpreter during the assessment of an asylum application apply also beyond the asylum procedure, such as within other immigration- and migration-related procedures. The Ombudsman interpreted Article 3 (3^1) of the Asylum Act24 as allowing migrants to use the interpret­ ers available in asylum procedures to also formulate petitions to the Ombuds­ man.25 However, the provision clearly prescribes that the General Inspectorate for Immigration (IGI), a government agency under the Ministry of Internal Affairs in charge of the asylum procedure through its Directorate of Asylum and Integration (DAI), may use interpreters and translators in applying the provisions of this law. Therefore, interpreters and translators may not be ensured by IGI-DAI for formu­ lating petitions at the Ombudsman. However, the Ombudsman also specified in their answer that if they receive a petition formulated in a language widely used internationally they will assess it if it is within their competencies.26 The administrative complaint before the Ombudsman has no suspensive effect over the challenged actions or decisions adopted in the context of border manage­ ment. The non-binding measure issued by the Ombudsman in order to redress human rights violations is subject to supervision. According to article 23(1) of the Law 35/1997, if, after examination of the petitions received, it is decided that the petition is well founded, the Ombudsman will address a written request to reform or revoke the administrative act and to repair the damage caused to the public administration authority that violated the rights of the individual. The public authorities concerned shall immediately take the necessary meas­ ures to remove the unlawfulness found, repair the damage, and remove the causes that have generated or favoured the breach of the rights of the injured person and will inform the Ombudsman about the measures taken.27 Pursuant to Article 24(1) of the Law 35/1997, if the public administration or civil servant does not take all the necessary measures to remove the unlawful acts committed by the institution within 30 days of the date of the referral, the Ombudsman will contact the public administration authorities hierarchically superior, who have the duty to communi­ cate within 45 days the measures taken. 9.2.1.4 Judicial mechanisms of complaint against return operations The range of legal remedies against return-related operations provided by the Romanian Aliens Act includes a right to appeal against return-related decisions before a court; suspensive effect of appeal; right to legal representation and legal aid at his or her own expense (Article 85(5) Aliens Act). Acting within the permit­ ted margin of discretion of the Returns Directive, the Aliens Act28 provides only for one single level of appeal before a court, and while suspensive effect of appeal is recognised automatically once the appeal is lodged, exceptions are provided in cases of foreigners declared undesirable for acts against the national security or foreigners requesting the issuance of a return decision before being identified as irregularly staying in Romania.

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The return decision can be issued to the following categories of foreigners: those entering the country illegally; those entering the country even though they have an entry ban from the territory of Romania; those who no longer fulfil the conditions of entry and/or stay provided by the Romanian Aliens Act; those over­ staying their visas; those who are in one of the above mentioned situations and have a right to residence in another EU member state and fail to leave the Roma­ nian territory within three days after IGI’s written notification to do so; or those failing to leave the country within the required time after having their asylum applications rejected; or those declared undesirable (Aliens Ordinance, Articles 81(2) and (3)). Third-country nationals who are subject to a return decision may appeal against the return decision issued by IGI-Migration Directorate within ten days from the date of communication, at the Court of Appeal, placed in the ter­ ritorial jurisdiction of the structure of the General Inspectorate for Immigration which issued the return decision.29 The court shall decide on the appeal within 30 days of receiving it, and its decision is final. In such cases, the national legisla­ tion provides that the appeal has automatic suspensive effect (Article 85(3) of the Aliens Act). The Aliens Act provides an exception from the aforementioned com­ mon appeal procedure in the case of foreigners declared undesirable or who are at risk of absconding from the return procedures. In the case of these foreigners, the law foresees a three-day deadline to lodge an appeal against the return decision, which has no suspensive effect and a five-day deadline to issue a court decision. (Article 85(2) and (3) Aliens Act).30 Aliens declared undesirables and those who are requesting themselves the issuance of a return decision before they are traced with illegal stay do not benefit from an appeal that automatically suspends the execution of the return obligation.31 Importantly, the contestation of the return decision made by the alien, who is in pre-removal detention, does not suspend the measure of public custody.32 The foreigner who contests the return decision has the right to obtain legal counselling, representation, and linguistic assistance at his or her own expense.33 However, he or she also has the right to request free legal aid according to the provisions of Government Emergency Ordinance No. 51/2008 on legal aid in civil matters (Legal Aid Act).34 9.2.1.5 Judicial mechanisms of complaint against the measure of declaring a third-country national undesirable Article 86(1) of the Aliens Act defines the measure of declaring an alien undesir­ able as the measure ordered against a foreigner who has carried out, carries out, or there are strong indications that he or she intends to carry out activities likely to endanger the national security or public order. This measure shall be ordered by the Bucharest Court of Appeal, at the notification of the designated prosecutor from the Prosecutor’s Office attached to Bucharest Court of Appeal. The prosecu­ tor shall notify the court at the proposal of the institutions with attributions in the field of public order and national security which are holding data or solid indica­ tions on activities being carried out against the national security or public order (Article 86(2) Aliens Act).

Evaluation of border activities in Romania 203 The Bucharest Court of Appeal shall pronounce a reasoned decision within tendays from the notification made under the above-mentioned conditions. The court’s ruling is enforceable. When the measure of declaring a foreigner undesir­ able is based on national security considerations, the content of the decision does not mention the data and information underlying its motivation (Article 86(5) Aliens Act). The decision shall be communicated to the foreigner and, if the court orders the measure of declaring the alien undesirable, the General Inspectorate for Immigration will enforce this decision (Article 86(6) Aliens Act). The foreigner’s right of residence ceases from the date of the decision by which he or she has been declared undesirable (Article 86(7) Aliens Act). The period for which a foreigner can be declared undesirable can range from five to 15 years, with the possibility of extending the deadline for a new period between these limits, if it is found that the reasons which had led to the taking of this measure have not ceased to exist (Article 86(8) Aliens Act). Unlike the usual return-related decisions, the Aliens Act provides for a second level of appeal against the decision declaring a third-country national undesir­ able. Article 87 states that the decision may be appealed within ten days from the date of communication before the High Court of Cassation and Justice. The court shall give a ruling within five days of receipt of the appeal. Neither the first, nor the second level of appeal has automatic suspensive effect of appeal. Instead, in duly justified cases and in order to prevent imminent damage, the foreigner may request the court to order the suspension of the execution of the decision by which he or she was declared undesirable until the resolution of the appeal. The court rules on this request urgently; the ruling pronounced in this case is enforceable by law (Article 87(2) Aliens Act). 9.2.1.6 Judicial mechanisms of complaint against the refusal of entry Against the decision refusing entry on the territory of Romania, an action may be taken at the administrative litigation court with territorial jurisdiction over the area in which the issuing body of the contested administrative act is located. The appeal is decided urgently in the council chamber by a decision, and the par­ ties are summoned.35 An onward appeal may be filed against the decision of the court.36 The decision of the court of appeal is final and irrevocable.37 Prior to lodging an appeal at the administrative litigation court, the person who considers that his or her rights were breached by an administrative act issued by a public institution shall appeal to the issuing public authority within 30 days. The complaint should be addressed to the hierarchically superior body if it exists.38 The appeal is assessed in 30 days.39 The appeal lodged to the administrative litigation court without fulfilling this prior procedural step will be declared inadmissible. The prior appeal and the appeal to the administrative court have no suspensive effect. The applicant may request the suspension of the administrative act at the competent court, when lodging the prior appeal40 or when appealing to the court.41 In 2017, 5,462 foreign citizens were not allowed to enter the country as a result of failure to meet the legal conditions of entry into the country. The main reasons

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for the refusal of entry related to lack of a valid visa or a valid residence permit, or lack of necessary documentation to justify the purpose and conditions of stay (Romanian Border Police 2018). In addition, following the checks carried out, 105 foreign citizens were not allowed entry on the ground that they represented a threat to public order, national security, public health, or international relations (Romanian Border Police 2018).

9.3 The effectiveness of the complaint mechanisms: minimal use and systemic human rights challenges The previous section revealed that third-country nationals whose human rights have been breached by border policy authorities have, in theory, a multitude of actors and mechanisms of complaint at their disposal: Ombudsman with exten­ sive powers of review and remedy; disciplinary and criminal complaints against the conduct of the Border Police officials; and judicial actions before administra­ tive courts challenging the decisions of the Border Police officials which enjoy automatic suspensive effect, or suspensive effect by individual application. Nev­ ertheless, the practical implementation proves difficult since it is hindered by practical and legal barriers consisting of: pushbacks; immediate detention after the third-country nationals have been saved; and lack of information on the rem­ edies or deliberate misinformation. These practices of the border police and com­ petent administrative authorities (e.g. IGI) prevent effective access to remedial mechanisms. It is also difficult to quantify the extent of the problem of lack of access, since the competent actors to receive complaints do not keep a statistical survey of the human rights violations of the rights of migrants deriving from actions and decisions taken in the context of border control, surveillance activities, or return operations.42 Collection of data is usually carried out by nongovernmental organi­ sations (NGOs) and media reports, which have shown that the endemic human rights issue of police brutality is still present in Romania.43 The issue was stressed in the latest US Department of State’s 2018 Country Report on Human Rights Practices in Romania and also in its previous reports,44 as well as in a 2018 report of the European Committee for the Prevention of Torture and Inhuman or Degrad­ ing Treatment or Punishment (CPT).45 The US Department of State’s Country Report of 2018 states that the ‘police officers were frequently exonerated in cases of alleged beatings and other cruel, inhuman, or degrading treatment’ (US Department of State), a matter which was also put forward by APADOR-CH in its previous work. Therefore, in 2015, out of 2,461 complaints made against police officers, 828 complaints concerned abusive behaviour. Only 391 complaints for abusive behaviour were solved, and strikingly, only one of them reached the court. According to Border Police statistics of 2018, 782 notifications/petitions/com­ plaints against Border Police officers were solved, out of which 593 measures were proposed and approved, as follows: 100 preliminary investigations; 169 ‘Warnings’; 204 measures of improvement of the activity; 41 information of the central and territorial structures of Anti-Corruption General Directorate; 11

Evaluation of border activities in Romania 205 notifications to the competent prosecution bodies; and 20 administrative investi­ gations (Romanian Border Police 2019). Although, the statistics do not mention how many complaints reached the court, the number of complaints that reached the prosecutor’s office is very low (11 complaints out of 782). As for 2017, there are no publicly available statistics on this matter. The annual report of the Roma­ nian Border Police only mentions that 175 notifications and complaints were lodged, without any other details (Romanian Border Police 2018). While pushbacks have been a common practice in Hungary and Poland,46 this practice has also spread in other Eastern European countries. For instance, the UNHCR office in Serbia reported an alarming number of pushbacks and collective expulsions by Romanian authorities, with a total 1,386 cases since April 2017. The highest number of collective expulsions was registered in the last months of 2017 (338 cases in September; 346 in October; 319 in November; and 267 in December 2017) (AIDA 2017, p. 15). UNHCR Serbia (2017a) also reported in connection with the collective expulsions from Romania, Hungary, and Croatia that many alleged ‘to have been denied due access to asylum pro­ cedures and some to have been maltreated,’ ‘to have been denied due access to asylum procedures there’(2017b), and some maltreatment by authorities of these member states (2017c). Jesuit Refugee Service (2018a, p. 29) also received unverified reports of the authorities refusing to register asylum applications at the border. A persistent lack of access to asylum procedures and information on complaint mechanisms as well as automatic detention were reported in relation to those third-country nationals saved at sea. The Coast Guard reportedly only inquired into their destination and not into the reasons why they fled their country of ori­ gin. On the other hand, according to the legal counsellor of JRS, the authorities declared that the persons did not claim asylum (AIDA 2017, p. 16). The persons who arrived by boats also expressed dissatisfaction in relation to the reception conditions provided to them while in Border Police/Coast Guard custody. They were accommodated in the former school of the Border Police in Constanţa, which is basically a decommissioned facility (AIDA 2017, p. 16). Additional complaints referred to the criminal charges brought against those saved at sea, who were detained in the Otopeni Custody Centre, with no access to interpreters speaking their language (i.e. Kurdish). Furthermore, according to a migrant interviewed by a NGO that is engaged in legal assistance of migrants, no explanation was given about the different distribution of those saved at sea: why some of those saved on the seas were taken to an open reception centre, others were detained, and some families were accommodated in a hotel. It is not clear how they were distributed (JRS 2018b). Another important issue is that some of the groups were held in Border Police custody for preliminary hearings for more than 24 hours – in some cases, even 72 hours (AIDA 2017, p. 16, 93), which is in clear breach of the Romanian Constitution and Criminal Procedure Code.47 The lengthy procedures were also mentioned in a JRS article regarding the Black sea arrivals of 2017 as follows: ‘Procedures are slow, and help is sparse. Migrants overwhelmingly describe being

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deeply confused about everything happening to them, from the sea journey, to disembarkation, and processing by the authorities’ (JRS 2018b). Serious human rights violations were identified by a leading organisation to have been committed by the border guards and other related asylum public offi­ cials during 2016 and 2017. These ranged from not providing necessary infor­ mation on asylum procedures to third-country nationals (or even deliberately providing misleading information) to putting individuals straight in detention centres, without giving them the opportunity to apply for asylum.48 A particu­ larly relevant story is that of a 16-year-old boy who described how he was told to ‘go to court’ to apply for asylum, and ‘while he did eventually have a court hearing, the hearing was about his stay in detention and not about accessing the asylum procedure. It was only after initiating a hunger strike that the authori­ ties finally relented and gave him access to the asylum procedure’ (JRS 2018a, p. 17). Even more worrisome is that while the individuals were placed in deten­ tion, NGOs could not reach them; they could only contact and assist them when taken over by the IGI-DAI or IGI Migration Directorate (AIDA 2017, p. 16). Another issue pinpointed by reports is the inadequate interpretation done at the Romanian Border Police. Asylum seekers and migrants complained about the use of interpreters who do not speak their native language at the border (AIDA 2017, p. 17; JRS 2018b, p. 26). According to a JRS report, the number of migrants detained in one of the two detention centres of Romania (in Otopeni, near Bucharest, and in Arad, near Timişoara), known as Centres for Accommodation of Foreigners Taken into Pub­ lic Custody (Centrul de Cazare a Străinilor luaţi în Custodie Publică), increased in 2017. Detention was used to penalise the migrants who did not express their intention to seek asylum when they were apprehended by the Border Police. (JRS 2018b, p. 26). Even though the General Inspectorate for Immigration-Asylum and Integration Directorate does not keep statistics regarding the number of asylum seekers detained, the number of asylum seekers detained in public custody centres also increased since 2015. The AIDA country report on Romania describes the phenomenon in detail: Whereas prior to 2015 the Aliens Ordinance required the release of foreign­ ers from detention as soon as a first application for international protection was lodged, the law now prescribes that an asylum seeker is only released when he or she is granted access to the regular procedure. Therefore, if they are assessed in an Accelerated Procedure they will stay in detention until the asylum procedure is concluded. If the application is rejected and the asylum seeker lodges an appeal, he or she shall remain in detention until the appeal has been examined. When the applicant makes a subsequent application, detention ceases on the date he or she is granted access to the new procedure. If the application is rejected and the asylum seeker lodges an appeal, he or she shall remain in detention until under the appeal has been examined. (AIDA 2017, p. 90)

Evaluation of border activities in Romania 207 Very few of the cases on refusal of entry into the Romanian territory actually reach the courts. For instance, in the first half of 2018, 2,466 third-country nation­ als were refused entry into Romanian territory, but only 23 appeals were lodged against decisions refusing entry (AIDA 2018, p. 19). Even when cases reach the courts, injured third-country nationals do not always have access to a fair trial due to a combination of an ill-designed national legislation and courts’ refusal to disclose any evidence used to declare thirdcountry nationals undesirable. Therefore, in addition to the practical barriers in accessing the complaint mechanisms there are also systemic shortcomings in the legislative framework governing certain of the complaint mechanisms. This is the case with the procedure for declaring a third-country national undesirable, which has raised particular concerns regarding the right to fair trial and rights of defence in the context in which the security clearance procedure for lawyers who defend those declared undesirable takes considerable time and thus leads to situations where the defendant is left without a legal representative. In Romania, the lawyers are not nominated automatically by the authorities in return proce­ dures assessing the allegations of national security threats, and thus the legal representative chosen by the individual, if he or she is not already on the list of special advocates, will have to pass the special security clearance procedure, which usually lasts longer than the duration of the administrative and court pro­ ceedings. If the lawyers want to access the content of the evidence gathered by the Intelligence Service, they need special certificates which can take between 30 to 90 days, and courts do not have the obligation to suspend the procedure for declaring a person undesirable until his or her lawyers obtains the security clearance certificate.49 The A.M.N. case50 illustrates that, when national courts and parliaments refuse to ensure effective remedies for fundamental rights violations resulting from inco­ herent legislation, the defendant third-country nationals will resort to external accountability forums, such as the ECtHR. The Romanian case is also interesting from the perspective of the lack of engagement with the relevant standards on rights of defence developed by the CJEU under Article 47 of the EU Charter in the ZZ case.51 A.M.N., a Pakistani citizen, entered Romania with a study visa of 90 days, which expired in February 2011. One month later, the Romanian Office for Immi­ gration (ROI) (now called General Inspectorate for Immigration) encountered A.M.N. as an illegal resident and issued a decision ordering him to leave the ter­ ritory of Romania in 15 days. Two days later, he lodged an asylum application on grounds of having been subject to persecution in Pakistan. His asylum application was rejected by both ROI and the first instance court. While the asylum proceed­ ings were pending, he married a Romanian citizen and consequently requested a residence permit in Romania as family member of a Romanian citizen. Before the interview at the ROI, the Romanian Intelligence Service (RIS) requested the Court of Appeal of Bucharest (CAB) to declare him undesirable in Romania and to issue an entry ban of ten years, in light of evidence indicating that A.M.N. may

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have been involved in activities that may constitute a threat to national security. The RIS also requested his placement in custody/detention until his removal.52 The evidence submitted by RIS was classified as ‘top secret’ and was made available only to the CAB. The case was subjected to an emergency procedure. A.M.N. was served a summons to present himself before the CAB on 8 July 2011, with the hearing set for the next day. He argued before the CAB that he was not informed of the object of the proceedings. A Nepalese interpreter was present, despite the fact that A.M.N. spoke only Urdu and a little English. The defendant asked for a postponement in order to hire an attorney and to read the indictment, which had not been communicated to him by the RIS. The Court approved only two hours of delay, because of the specific emergency procedure which governs this type of trial. Without taking advantage of the two-hour delay he had been granted, the defendant deposited before the Court proof of his request of asylum and proof that he had also requested a right of residence as a family member of a Romanian citizen. He also stated that his return to Pakistan would put his life in danger. The CAB approved the request of the RIS, declaring the defendant’s presence in the State to be undesirable. It issued an entry ban prohibiting him from entering Romania and the EU for a period of ten years, including a stipulation that his period in custody shall not exceed 18 months. The reasoning of the CAB included only the following statement as regards access to evidence: ‘Examining the information provided by the RIS classified as state secret, level “Top Secret”, the Court finds that there is sufficient proof that the foreign citizen engaged in activities that are likely to endanger national security.’ The CAB held that it did not make a difference whether he was an asylum-seeker or a family member of an EU citizen, since involvement in terrorist activities can lead in both circumstances to the person being declared undesirable. As to the limitation to the right to fam­ ily life, the CAB held that the limitation was necessary in light of the objective of ensuring national security, and found that the interference with the right was proportionate. Two weeks later A.M.N. was returned to Pakistan. The day following his expulsion, a lawyer lodged an appeal on his behalf against the judgment of the CAB before the High Court of Cassation and Justice requesting the annulment of the measure declaring him undesirable and reduction of the entry ban. In support of his appeal, the lawyer argued that (1) since he had less than one day to prepare his defence, he was thus placed in a situation where it was impossible to defend himself; (2) the translator present during the court pro­ ceedings did not speak his mother tongue, Urdu, but only English and Nepalese; (3) in the very short postponement given by the first instance court, he could not hire an attorney who could have a special permit to access the ‘top secret’ docu­ ments. Only an attorney with a special permit could access those documents, and the attorney needed to undergo an approval procedure that lasted at least 60 days before obtaining the permit; therefore, the defendant could not access the papers that were held as evidence against him, making the judicial procedure a mere pro forma trial. The lawyer argued that A.M.N. had not been involved in terrorist activities, and had never been convicted of actions similar to terrorism in Romania. It was

Evaluation of border activities in Romania 209 submitted that he was living with his spouse and had made several inquiries for obtaining the right of residence, one of them being pending. In a final decision, the High Court of Cassation and Justice dismissed the applicant’s appeal. It held that the CAB had correctly examined the aspects related to national security and the measures ordered were justified by the acts attributed to the applicant. Follow­ ing the final decision of the High Court of Cassation and Justice, the lawyers of A.M.N lodged a complaint before the European Court of Human Rights for viola­ tions of Articles 5(1)(f), 4, and 8 of the ECHR.53 Before the ECtHR, A.M.N. complained that his deprivation of liberty was based on a law that did not meet the requirements of ‘law’ within the meaning of the Convention. In particular, he submitted that the domestic law was unpredict­ able and did not offer him the minimum level of protection against arbitrariness. The domestic legal framework appears to be incoherent, since according to the Government Decree No. 585/2002 regarding the protection of classified docu­ ments, obtaining a permit of access to classified data requires a procedure lasting a minimum of 60 days, while Governmental Emergency Ordinance No. 194/2002 provides that the procedure of declaring somebody persona non grata is an emer­ gency procedure which is much faster than the 60 days period. This legal con­ tradiction could lead to a violation of the right to asylum, fair trial, and the right to respect for private and family life, the latter have no objective possibility to defend themselves or to have a fair trial. Relying on Article 5(4) of the ECHR, the applicant complained that the domes­ tic law did not provide a means of effectively challenging both his placement in detention, and the administrative decision and judgment declaring him an undesir­ able person. He stated that the procedure before the CAB was unfair because of the confidentiality of the information used as evidence against him, whereby no facts or information were presented to him. He submitted that access to informa­ tion classified as ‘secret’ is not permitted to foreign citizens and access to counsel who has access to these documents only permitted by a decision of the court of appeal in this regard. Accordingly, he found himself unable to challenge the facts and the authenticity of the evidence against him. A violation of Article 8 of the ECHR was also invoked, since the defendant’s supervision by the RIS and the collection and storage of information was argued to constitute unlawful interference with his right to respect for his private life. In this regard, he argued that the domestic law does not describe the circumstances in which the RIS can monitor people and gather information about them and no time limit is fixed as to the storage of the information collected and duration of retention. Furthermore, in the present case, the RIS’s decision to monitor the com­ plainant was not subject to any controls. Lastly, the applicant argued that the expulsion order and entry ban infringed his right to respect for private and family life guaranteed by Article 8 of the ECHR. He stated that the interference with his right to respect for family life was dispro­ portionate and arbitrary since the charges that justified the contested measures were never communicated to him. In the meantime, the case was erased from the ECtHR docket due to a procedural error regarding the power of attorney.

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Nevertheless, the issue has come up in a subsequent case regarding other thirdcountry nationals declared undesirable, who have also complained before the ECtHR for similar violations of human rights as were present in the A.M.N case.54 The Court will now have the opportunity to decide on the issue, and the transfer of the case to the Grand Chamber of the ECtHR is an indication on the serious­ ness and pervasiveness of alleged human rights violations. The fact that domestic courts, including the supreme court – the High Court of Cassation and Justice – rubber-stamped the RIS approach on the secrecy of the information in question, and did not authorise the disclosure of the essential grounds for declaring the per­ son undesirable, have perhaps contributed to the decision in transferring the case to the Grand Chamber.55

9.4 Conclusions: normative and practical gaps This chapter has shown that despite Romania’s consistent efforts in transposing the relevant EU legislation on asylum and immigration, and the provision of a multi-prong complaint mechanism, the use of the mechanisms by the injured third-country nationals is minimal and ineffective. Practical and legal barriers in accessing the complaint mechanisms have increased since 2017, following the move of the Western Balkan corridor through Romania. For instance, this chapter showed that while the Ombudsman has wide review­ ing and remedial powers, accessing its procedure is cumbersome for the migrants who suffered human rights violations which occurred in the context of border con­ trol and border surveillance activities. The petitions have to be written in Roma­ nian, according to the law, or in an international language. As a consequence, migrants who are illiterate or have no knowledge of an international language are practically hindered from their right to make such a complaint. Moreover, the effective access to a complaint mechanism is hindered by the minimal to nonexist­ ent access to legal aid at the borders. Furthermore, the effectiveness of the complaint mechanism is limited due to the fact that the complaints before the administrative authorities do not have sus­ pensive effect over actions or decisions adopted in the context of border control or border surveillance. As reports have described the fact that migrants are not provided information about the possibility to apply for asylum, it is fair to assume that there is also a lack of information about the right to complain in case of mistreatment. Access to legal representation and counselling at the border is non­ existent, and NGOs can only contact and assist migrants when taken over by the IGI-DAI or IGI Migration Directorate (AIDA 2018, p. 16). In the light of the high number of collective expulsions from Romania to Serbia in 2017, the possibility of lodging complaints was also reduced when the com­ plainant is no longer in the territory of the country responsible for assessing the human rights responsibilities of its border or coast guards. The migrant who is refused entry has 24 hours to make a complaint against human rights violations which occurred in the context of border management. According to the Aliens Act, the foreigner who was refused entry into the territory has the possibility to

Evaluation of border activities in Romania 211 voluntarily leave the border crossing point within a maximum of 24 hours. The term is calculated from the hour following that in which the measure of nonadmission to Romania was ordered.56 Upon the expiry of the 24 hours, the meas­ ure will be enforced by the border police.57 If the border police cannot enforce the measure in 12 hours, the foreigner is placed in another location established outside the border crossing point with transit area status.58 This provision makes it almost impossible for the foreigner to appeal against the refusal of entry and even more, to seek remedy for the harm suffered. Another systemic shortcoming in the complaint mechanism is the ineffective right of defence for the third-country nationals who are declared undesirable. Fol­ lowing the refusal of national courts to require the administration to disclose the essential grounds for declaring a third-country national undesirable and the long procedure for security clearance of lawyers in such procedures which leave the defendants without a legal representative, several complaints have been lodged before the ECtHR. It remains to be seen what path the Grand Chamber will choose in these cases: the protection of human rights of the third-country nation­ als or the protection of the national security interests of the member states, which have lately monopolised the political discourse on migration. In conclusion, this chapter argues that there is an urgent need of prompt, effec­ tive, independent, and impartial monitoring and investigation into the allegations of pushbacks and ill-treatment at the Serbia/Romanian border, which have so far remained unchallenged. Furthermore, it is salient that those migrants and refugees who have survived pushback operations or ill-treatment by law enforcement offic­ ers are given a temporary legal status, unless a more favourable one is available, for the purpose of allowing them to follow up their complaints and seek remedy to the harm they have suffered. In situations where national authorities, includ­ ing courts, failed to remedy the human rights violations, so far, the sole effective remedy available to the injured third-country nationals has been the ECtHR com­ plaint mechanism. However this remedy is cumbersome, since it requires access to experienced and willing lawyers to take up such cases. To address these short­ comings in the human rights remedial system, an option could be to make the EU funding allocation for the management of borders dependent on the member states’ effective provisions of human rights complaint mechanisms, including of adequate monitoring, review, and training.

Notes 1 The chapter is based on legislation and jurisprudence up until August 2019. 2 Romania is the EU member state with the highest numbers of emigrants in the EU, see M. Moraru & F. Nica, ‘Consular Services and Policies for the Romanian Diaspora’, in D. Vintila & J.M. Lafleur (eds.), Migration and Transnational Social Protection in Post-Crisis Europe, London: Routledge, forthcoming 2020. 3 M. Sebe, ‘Romania’s Stance in the Issue of the Refugees Crisis’, IED Working Paper, March 2016. 4 Iris Goldner Lang, ‘The Western Balkans Route as an Alternative to Breaching the EU Charter of Fundamental Rights’, in A. Crescenzi, R. Forastiero & G. Palmisano (eds.),

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Asylum and the EU Charter of Fundamental Rights, Napoli: Editura Scientifica, 2018, pp. 195–203. Romanian Border Police 2017a, 2017b, 2017c. When Romania registered 4,820 asylum applications, according to the General Inspec­ torate for Immigration, Evaluation of Activity In 2017, available in Romanian at http:// igi.mai.gov.ro/sites/default/files/evaluarea_activitatii_in_anul_2017.pdf. The General Inspectorate for Immigration, Evaluation of Activity In 2016, available in Romanian at http://igi.mai.gov.ro/sites/all/themes/multipurpose_zymphonies_theme/ images/pdf/Prezentare%202016%20%20Animation%20text%20final.pdf. The General Inspectorate For Immigration, Evaluation of Activity In 2017, asylum requests from Iraqis -2.742; Syrian -945. The General Inspectorate For Immigration, Evaluation of Activity In 2016, asylum request from Syrians -816; Iraqis -472. AIDA, ‘Country Report: Romania’, 2017, www.asylumineurope.org/sites/default/ files/report-download/aida_ro.pdf. Ibid. Ibid., and M. Sebe, Romania’s Stance in the Issue of the Refugees Crisis, IED Working Paper March 2016. Article 58^3(1) Law 360 of 2002 on the Status of the Policeman. Article 58^4 Law 360 of 2002 on the Status of the Policeman. Article 59(2) Law 360 of 2002 on the Status of the Policeman. Article 59(4) Law 360 of 2002 on the Status of the Policeman. Article 55 Criminal Procedure Code. Jonny Byrne, William Priestley (September 2015), Updated February 2017 by Wil­ liam Priestley, Police Oversight Mechanisms in the Council of Europe Member States, COE, https://rm.coe.int/police-oversight-mechanisms-in-the-coe-member-states/ 16807175dd. Romanian Ombudsman, institutional structure, www.avp.ro/linkuri/Organigrama.pdf; Jonny Byrne, William Priestley (September 2015), Updated February 2017 by William Priestley, Police Oversight Mechanisms in the Council of Europe Member States, COE. Law 9 of 2018 for modifying and completing the Law no. 35/1997 regarding the organisation and functioning of the Ombudsman, available in Romanian at: www.avp. ro/mnp/legi/lege9_mnp.pdf. Article 12^2 Law 35/1997 on organisation and functioning of the Institution of the Ombudsman, amended. Article 14(1) Law 35/1997 on organisation and functioning of the Institution of the Ombudsman, amended. Article 15(2) of the Law no. 35/1997 regarding the organisation and functioning of the Ombudsman. Article 3(3^1) Asylum Act – In applying the provisions of this law, the General Inspec­ torate for Immigration may use interpreters and translators authorised under Law no. 178/1997 on the authorisation and payment of interpreters and translators used by the Superior Council of Magistracy, the Ministry of Justice, the Prosecutor’s Office attached to the High Court of Cassation and Justice, the National Anticorruption Direc­ torate, the criminal prosecution bodies, the courts of law, the offices of notaries public, lawyers and bailiffs, with subsequent amendments and completions, to perform inter­ pretation and / or translation into and from foreign languages, to request forensic or other expertise, as well as to consult specialists. Information provided by the Ombudsman, 7 December 2017. Information provided by the Ombudsman, 7 December 2017. Article 23(2) of Law 35/1997. Government Emergency Ordinance No. 194 of 12 December 2002 regarding the regime for foreigners in Romania (Aliens Ordinance), last updated November 2016.

Evaluation of border activities in Romania 213 29 Article 85(1) of the Government Emergency Ordinance No. 194 of 12 December 2002 regarding the regime for foreigners in Romania (Aliens Ordinance), last updated November 2016. 30 Article 85(2) Aliens Ordinance. 31 Article 85(3) Aliens Ordinance. 32 Article 85(4) Aliens Ordinance. 33 Article 85(5) Aliens Ordinance. 34 Article 85(6) Aliens Ordinance. 35 Article 17(1) Law 544/2004. 36 Article 20 Law 544/2004. 37 Article 21 Law 544/2004. Romanian Border Police, Situations in which persons are refused entry/exit to/from Romania, available in Romanian at www.politiadefrontiera. ro/ro/main/pg-situatii-in-care-se-poate-refuza-intrareaiesirea-indin-romania-163.html. 38 Article 7(1) Law 554/2004 on Administrative Litigation. 39 Article 7(4) in conjunction with article 2(1)g) Law 554/2004 on Administrative Litigation. 40 Article 14 Law 544/2004. 41 Article 15 Law 544/2004. 42 Information provided by the Ombudsman, 7 December 2017. 43 APADOR-CH, Law enforcement abuses, available in Romanian at www.apador.org/en/ abuzuri-ale-fortelor-de-ordine/; European Roma Rights Centre/APADOR-CH/Romani CRISS (2016), Memorandum on the implementation of the judgments in the group of cases Barbu Anghelescu 44 (No. 46430/99) concerning police brutality in Romania, available in English at: www.errc.org/cms/upload/file/joint-submission-to-the-councilof-europe-onimplementation-of-police-brutality-judgments-in-romania-june-2%20 016.pdf; European Commission against Racism and Intolerance (ECRI), Report on Romania, (fifth monitoring cycle) Adopted on 3 April 2019 Published on 5 June 2019, available in English at: https://rm.coe.int/fifth-report-on-romania/168094c9e5 44 US Department of State’s 2018 Country Reports on Human Rights Practices: Romania, available in English at: www.state.gov/reports/2018-country-reports-on-human-rights­ practices/romania/; Country Reports on Human Rights Practices for 2015, available in English at: https://2009-2017.state.gov/j/drl/rls/hrrpt/humanrightsreport/#wrapper. 45 Council of Europe – CPT, Report to the Romanian Government on the visit to Roma­ nia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 19 February 2018, available in English at: https://rm.coe.int/16809390a6. 46 J. Białas & M. Jaźwińska, ‘Preliminary Questions in Asylum Cases Lodged by the Courts from Central and Eastern Europe: A Pragmatic Study’, in A. Crescenzi, R. Forastiero & G. Palmisano (eds.), Asylum and the EU Charter of Fundamental Rights, Napoli: Editura Scientifica, 2018, pp. 175–195. 47 Article 23 Romanian Constitution; Article 209 Criminal Procedure Code. 48 JRS report, ‘Forgotten at the Gates of Europe – Ongoing Protection Concerns at the EU’s External Border’, JRS 2018a. 49 For more information on the security clearance certificate set out by the Governmental Decision No. 585/2002, Annex no. 12, see the website of the National Registry Office for Classified Information, www.orniss.ro/en/index.html. 50 Case submitted by lawyer Diana Andrasoni, ACTIONES Case note, Romanian High Court of Cassation and Justice, File No. 5473/2/2012, ECHR application no. 19943/13, available in the ACTIONES Database. 51 See C-300/11, ZZ, ECLI:EU:C:2013:363. The ZZ preliminary ruling is a landmark case on the scope of disclosure of evidence in national security cases and can serve as reference judgment in cases of non-disclosure of evidence based on national secu­ rity leading to negative consequences for third country nationals, asylum seekers, or

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irregular migrants. For a commentary, see REJUS Casebook on Effective Justice in Asylum and Immigration, www.rejus.eu/sites/default/files/content/materials/rejus_ casebook_effective_justice_in_asylum_and_immigration.pdf. The request was founded on Article 3, letter I and l of the Law No. 51/1991 regarding National Security and Article 44 of Law 535/2004 regarding prevention of and fight against terrorism and Article 85 of Emergency Ordinance no. 194/2002 regarding the legal regime of foreigners in Romania. M.N.A. v Romania, Application No. 1994/13. See Application No. 80982/12, Muhammad and Muhammad v. Romania. Case C-300/11 ZZ v Secretary of State for the Home Department ECLI:EU:C:2013:363; joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, ECLI:EU:C:2008:461; PF Scott, The National Security Con­ stitution (Hart Publishing, Oxford 2018), 212ff. Article 9(1) Aliens Act. Article 9(2) Aliens Act. Article 9(3) Aliens Act.

References Asylum Information Database (AIDA) (2017), ‘Country Report: Romania’, www.asylu mineurope.org/sites/default/files/report-download/aida_ro.pdf. Asylum Information Database (AIDA) (2018), ‘Country Report Romania’. Białas, J. & Jaźwińska, M. (2018), ‘Preliminary Questions in Asylum Cases Lodged by the Courts from Central and Eastern Europe: A Pragmatic Study’, in A. Crescenzi, R. Forastiero & G. Palmisano (eds.), Asylum and the EU Charter of Fundamental Rights, Naples: Editura Scientifica, pp. 175–195. Byrne, J. & Priestley, W. (2015), ‘Police Oversight Mechanisms in the Council of Europe Member States’, updated in 2017 by W. Priestley, Strasbourg, Council of Europe, https:// rm.coe.int/police-oversight-mechanisms-in-the-coe-member-states/16807175dd. Coast Guard (2017a), ‘Ambarcaţiune cu migranţi din Irak, interceptată de poliţiştii de frontierăromâni, în apropierea ţărmului românesc al Mării Negre’, 13 August, http://bit. ly/2lVx0h5. Coast Guard (2017b), ‘Ambarcaţiuni cu migranţi, interceptate şi blocate de poliţiştii de frontieră români în Marea Neagră’, 9 September, http://bit.ly/2iyi1Vk. Coast Guard (2017b), ‘Intervenţie dificilă pe Marea Neagră’, 13 September, http://bit. ly/2lSKhHj. Coast Guard (2017c), ‘Intervenţie dificilă pe Marea Neagră’, 28 November, http://bit. ly/2oquP3P. Coast Guard (2017d), ‘Pescador cu migranţi, interceptat de poliţiştii de frontieră români în apropierea ţărmului românesc al Mării Negre’, 21 August, http://bit.ly/2h8IGIh. Coast Guard (2017e), ‘Pescador cu migranţi, interceptat de poliţiştii de frontieră româniîna propiereaţărmuluiromânesc al MăriiNegre’, 3 September, http://bit.ly/2zlfiZA. European Commission Against Racism and Intolerance (ECRI) (2019), ‘Report on Roma­ nia (Fifth Monitoring Cycle)’, adopted on 3 April 2019, published on 5 June 2019, https://rm.coe.int/fifth-report-on-romania/168094c9e5. European Roma Rights Centre/APADOR-CH/Romani CRISS (2016), ‘Memorandum on the Implementation of the Judgements in the Group of Cases Barbu Anghelescu 44 (No. 46430/99) Concerning Police Brutality in Romania’, www.errc.org/cms/upload/file/ joint-submission-to-the-council-of-europe-onimplementation-of-police-brutality-judg ments-in-romania-june-2%20016.pdf.

Evaluation of border activities in Romania 215 The General Inspectorate for Immigration, ‘Evaluation of Activity in 2017’, http://igi.mai. gov.ro/sites/default/files/evaluarea_activitatii_in_anul_2017.pdf. The General Inspectorate for Immigration, ‘Evaluation of Activity in 2016’, http://igi.mai. gov.ro/sites/all/themes/multipurpose_zymphonies_theme/images/pdf/Prezentare%20 2016%20%20Animation%20text%20final.pdf. Goldner Lang, I. (2018), ‘The Western Balkans Route as an Alternative to Breaching the EU Charter of Fundamental Rights’, in A. Crescenzi, R. Forastiero & G. Palmisano (eds.), Asylum and the EU Charter of Fundamental Rights, Naples: Editura Scientifica, pp. 195–203. Jesuit Refugee Service (JRS) (2018a), ‘Forgotten at the Gates of Europe: Ongoing Protec­ tion Concerns at the EU’s External Border’, https://reliefweb.int/sites/reliefweb.int/files/ resources/PEB_Report1.pdf. Jesuit Refugee Service (JRS) (2018b), ‘Romania: Rough Justice for Black Sea Arriv­ als’, PEB PROJECT: Bucharest, 15 January, https://jrseurope.org/campaign_ detail?PTN=PROMO-20170516044859&TN=PROJECT-20180115054646&L=EN. Moraru, M. & Nica, F. (2019), ‘Consular Services and Policies for the Romanian Dias­ pora’, in D. Vintila & J.M. Lafleur (eds.), Migration and Transnational Social Protection in Post-Crisis Europe, London: Routledge. Romanian Border Police (2017a), ‘11 cetăţeni iranieni şi irakieni şi două călăuze din Tur­ cia, opriţi de poliţiştii de frontieră timişeni’, 16 October, http://bit.ly/2hfzRjA. Romanian Border Police (2017b), ‘Patru cetăţeni irakieni şi o călăuză sârbă, opriţi de poliţiştii de frontieră timişeni’, 8 October, http://bit.ly/2zz95tN. Romanian Border Police (2017c), ‘Două familii de cetăţeni din Irak şiAfganistan, depistate la frontiera de sud-vest’, 27 September 2017, http://bit.ly/2h8HJzu. Romanian Border Police (2017d), ‘Unsprezecemigranţiascunşiîntr-un microbuz cu mobilă, descoperiţi la P.T.F. Giurgiu’, 5 October, http://bit.ly/2Am3Lr5. Romanian Border Police (2017e), ‘14 cetăţeni irakieni şi cinci traficanti bulgari, opriţi la frontiera cu Bulgaria’, 5 October, http://bit.ly/2hfrapl. Romanian Border Police (2017f), ‘Doi cetăţeni sirieni ascunşi sub un camion, descoperiţi la P.T.F. Giurgiu’, 11 September, http://bit.ly/2hdWQve. Romanian Border Police (2017g), ‘Nouăsprezece irakieni depistaţi în două autoturisme, în apropierea malului Dunării’, 10 September, http://bit.ly/2j3eT84. Romanian Border Police (2017h), ‘Traficanţi de migranţi opriţi cu focuri de armă, la fron­ tiera cu Serbia’, 28 August http://bit.ly/2EF7OQD. Romanian Border Police (2018), ‘Evaluation of the Activity of the Romanian Border Police in 2017’, 15 February, www.politiadefrontiera.ro/ro/main/i-evaluarea-activitatiipolitiei-de-frontiera-romane-desfasurate-in-anul-2017-11980.html. Romanian Border Police (2019), ‘Situations in Which Persons Are Refused Entry/Exit to/ from Romania’, www.politiadefrontiera.ro/ro/main/pg-situatii-in-care-se-poate-refuzaintrareaiesirea-indin-romania-163.html. Sebe, M. (2016), ‘Romania’s Stance in the Issue of the Refugees Crisis: Preliminary Obser­ vations’, IED Working Paper, March 2016. UNHCR Serbia (2017a), Inter-Agency Operational Update, September, http://bit. ly/2hXuzWA. UNHCR Serbia (2017b), Update 2–8 October 2017, http://bit.ly/2zvGXUH. UNHCR Serbia (2017c), Update 9–15 October 2017, http://bit.ly/2jpEtAo.

Part III

Justicing international, regional, and EU standards

10 Complaint mechanism during return flights The European border and Coast

Guard Agency

Jari Pirjola 10.1 Introduction It is widely recognised that every person deprived of his or her liberty should be entitled to lodge formal complaints with bodies designated for this purpose. This is one important safeguard against torture and inhuman or degrading treatment or punishment for persons deprived of their liberty (e.g. persons held in police estab­ lishments, in immigration detention centres, or during forced return flights). The possibility to lodge a complaint is also an important safeguard against other kinds of abuse of public power or the use of power contrary to good governance. Fur­ thermore, a well-functioning complaint mechanism can serve as a valuable source of information which can reveal potential problems affecting the management of people subject to different forms of detention. Complaint mechanisms also serve the purpose of allaying tension among persons deprived of their liberty by reas­ suring them that their concerns are treated seriously and, where appropriate, that suitable remedies are proposed.1 In general, independent complaint bodies should be unconnected and separate from the services responsible for persons deprived of their liberty. In this con­ text, it is essential that they are, and are seen to be, independent. This should not preclude the authorities from establishing or developing internal mechanisms for handling complaints relating to facts and abuses of a less serious nature. As a rule, complaint bodies should have a function which is clearly distinct from that of monitoring bodies responsible for carrying out visits to places of deprivation of liberty.2 The UN Subcommittee for the Prevention of Torture (SPT) has noted, for example, that the mandate of the National Preventive Mechanism (NPMs) under the OPCAT protocol is preventive; NPMs should not undertake investigations or adjudicate on complaints concerning ill-treatment, even if they encounter such cases while carrying out their visiting function. In other words, the mandate of an NPM differs from other bodies working against ill-treatment in its approach: it seeks to identify patterns and detect systemic risks of prohibited treatment rather than investigating complaints.3 The above-described distinction between reacting to complaints and prevent­ ing them from arising is not, however, always clear in practice. For example, Ombudsmen institutions that are designated as NPMs can use the information

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they receive by investigating complaints to the planning and targeting of their NPM visits. In the same way, during NPM visits, visiting delegations may in practice receive complaints even though the purpose of the visit is to carry out preventive visit focusing, for example, on structural problems and risks of illtreatment in the establishment.4 It is also important to note that complaint bodies offer a supplementary protec­ tion. They should not be considered as a substitute for criminal and other legal remedies that should be available to persons deprived of their liberty. The deci­ sions of the Ombudsmen in different European countries, for example, are usu­ ally not legally binding, whereas the decisions of the courts are binding. For this reason, it is often advisable to appeal to the court of law instead of to the body investigating complaints if there is a legal possibility for that. In this chapter, I will discuss the complaint procedure in the context of return flights coordinated or organised by the European Border and Coast Guard Agency (hereinafter Frontex or Agency). I will explore the complaint procedure in the light of the increasing involvement and expansion of return competences of Fron­ tex under the new Frontex Regulation (Reg. 2019/1896). Furthermore, I will ask if new powers and wider mandate are accompanied with effective safeguards against the possible abuse of these powers.5 Before starting my analysis, it is necessary to briefly explain what return flights are and how they are carried out. Return flights are operations where third-country nationals who have exhausted all legal avenues to legitimise their stay in the EU, or who have committed offences in the EU, are returned to their home countries by a return flight. In practice, one of the EU member states or Schengen Associ­ ated Countries takes the initiative to organise a joint return flight to a specific des­ tination country and charters a plane for that purpose. The countries of destination are chosen according to need – the presence of irregular immigrants of a given nationality who have received return decisions – and the conditions applicable to the destination country, such as a readmission agreement. Return operations must be carried out in conformity with international human rights law. Article 34 of the Agency’s regulation (2016/1624) states that in per­ forming its tasks, Frontex shall guarantee the protection of fundamental rights in accordance with the EU Law and the Charter of Fundamental Rights of the European Union.6 The Agency shall, for example, respect the principle of non­ refoulement and take into account the special needs of children, unaccompanied minors, victims of trafficking in human beings, persons in need of international protection, or other vulnerable persons. In addition, escorts participating in a removal operation coordinated by Frontex are also subject to the Frontex Code of Conduct for return operations and return interventions coordinated or organised by Frontex and to the Code of Conduct applicable for all persons participating in Frontex activities.7 In some cases, the representative of Frontex travels on the charter flight to the destination country. His or her tasks include making sure that the joint return operation is carried out in conformity with the Charter of Fundamental Rights of the European Union and the Frontex Code of Conduct. Article 4:3 of the Code

Complaint mechanism during return flights

221

of Conduct stipulates, for example, that the return operation must be terminated, in whole or in part, if the executive director considers that there are violations of fundamental rights or of international protection obligations that are of a serious nature. It is not clear, however, what the respect of non-refoulement means in practice when rejected asylum seekers are handed over to the authorities upon return.8 In what situation should Frontex keep the returnee in plane in order to make sure that the fundamental rights of the returnee are not violated after return? As Frontex is bound by the human rights obligations, it is important that there is a clear division of responsibilities between member states and Frontex, ensuring that Frontex has full legal responsibility for its actions.9 The chapter is organized in the following way. After looking at how and why Frontex decided to set up a complaint procedure, the chapter discusses the gen­ eral principles of good complaint procedures and ask if the complaint mecha­ nism of Frontex is compatible with these generally recognised principles. The chapter then briefly looks at complaint mechanisms that deal with actions and/ or inactions of the national teams that are escorting returnees. It ends by show­ ing that returnees should also have the possibility to submit complaints postreturn. Furthermore, the chapter argues that the next step in the monitoring of return flights should be the establishment of post-return monitoring mechanisms to increase the accountability and human rights compliance of Frontex return operations.

10.2 General principles of good complaint mechanisms One way to increase the accountability as well as human rights compliance during Frontex return operations is the setting up of a complaint procedure. To this end, in 2013, the European Ombudsman recommended that Frontex put in place an individual complaint mechanism in which the Fundamental Rights Officer (FRO) would be responsible for handling violations of fundamental rights alleged to have occurred in the course of its operations.10 Frontex did not implement this recom­ mendation, however, alleging that its regulation does not provide the FRO with the necessary executive powers to handle individual complaints. The Parliament backed the European Ombudsman’s recommendation to introduce an individual complaint mechanism, stating that in view of the ever-growing humanitarian and legal challenges at the EU’s external borders and the strengthening of Frontex operations, there is a need for a mechanism that is capable of processing indi­ vidual complaints.11 In 2014, the European Ombudsman made a decision on her own initiative to open an inquiry which sought to clarify how Frontex, as a coordinator of Joint Return Operations, could ensure respect for the fundamental rights and human dignity of the individuals being returned.12 The Ombudsman noted that even though Frontex has taken important steps by establishing regular exchanges through focal points and by conducting regular meetings with the member states’ competent authorities, more could be done.

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In her decision, the European Ombudsman recommended that Frontex encour­ age member states to inform returnees, in advance of a JRO, of the possibility to complain about violations of fundamental rights or human dignity that occur during the operation. The submission of complaints should be facilitated at each stage of a JRO as well as in the post-return phase. Aggrieved individuals should be able to complain to Frontex or to the member state concerned. The European Ombudsman regretted the prior refusal of Frontex to act on her predecessor’s rec­ ommendation, made in April 2013, to set up a complaint mechanism. Frontex finally established an individual complaint mechanism following EU Regulation 2016/1624. The complaint mechanism allows the Agency to moni­ tor the respect of fundamental rights in all its activities, including return flights. Consequently, during the return flights migrants have, at least in theory, a right to submit complaints if they feel that their rights have been violated. According to the Frontex complaint form, you, or a person or party acting on your behalf, may submit a complaint to Frontex, if you believe that you are directly affected by the actions of staff involved in a Frontex activity, and you considerer that one or more of your fundamental rights have been violated due to those actions. The complaint must be submitted in writing in one of the EU languages, although it can also be submitted in some other languages (Arabic, Urdu, Pahtu, etc.). Complaints shall be considered even if they are not submitted in standard­ ised complaint form. The returnee should submit the complaint within a year of the date on which the alleged violation of his or her fundamental rights occurred. The complaints must not exceed 15 pages.13 As the complaint mechanism for return flights has been finally set up, it is necessary to ask how it functions in practice. Does the mechanism operate in con­ formity with the established principles of good complaint systems? These prin­ ciples include availability, provision of information, accessibility, confidentiality, safety, effectivity, and accountability. Furthermore, it is necessary to ask if the investigation of complaints is independent. 10.2.1 Availability Availability means that there should be clearly designated complaint bodies where complaints can be submitted. There are a variety of complaint model examples in Council of Europe member states, ranging from general complaint bodies and the establishment of special units (e.g. special prosecutors or judges, and complaint sections within ombudsman institutions) to specialised complaint agencies (inde­ pendent police complaint body; prison ombudsman; special complaint board or commission). Indeed, it is often recommended to set up an independent agency specialised in the investigation of complaints against public officials, which is demonstrably separate from the authorities responsible for persons deprived of their liberty and the prosecution services.

Complaint mechanism during return flights 223 In the context of a Frontex return flight, a returnee must submit a complaint to the Frontex Fundamental Rights Officer (FRO). The FRO is responsible for handling complaints in accordance with the right to good administration. She or he will register the complaint and consider whether the complaint is admissible under the rules establishing the complaint procedure. If admissible, the complaint will be forwarded to the Frontex Executive Director. If national staff that took part in the return flight was involved in the alleged violation of the fundamental rights of the detainee, the complaint shall be forwarded to the authorities of the member state concerned, including to the relevant authority or body competent for assess­ ing fundamental rights compliance.14 Even though it is welcomed that Frontex has established a body where com­ plaints can be submitted, it is clear that this body is not a legally independent agency separate from Frontex. For this reason, the current complaint system (or the slightly changed complaint system under the proposed new regulation 2019/33) cannot be considered as independent complaint mechanism. An FRO is an independent expert who monitors and promotes fundamental rights within Frontex.15 She or he can be described as an internal complaint mechanism. An independent and effective complaint mechanism should, however, include the possibility of complaining outside the Frontex system. 10.2.2 Provision of appropriate information Another important principle of a well-functioning complaint mechanism is the provision of appropriate information. Persons deprived of their liberty should promptly receive information, both orally and in writing, on all avenues of com­ plaint within and outside the places in which they are being held. Migrants should receive prompt information about their rights, including their right to complain, in a language they understand. Written information provided to them should there­ fore be available in the languages most commonly spoken and be easily accessi­ ble. Returnees should understand the modalities for exercising their right to lodge formal complaints. For this purpose, appropriate communication strategies should be developed (e.g. information leaflets, information videos) and made available to returnees in a straightforward, easy-to-understand and non-legalistic manner. Specific consid­ eration should be made with regard to their age, their gender, and any situations rendering them particularly vulnerable (e.g. disability, health conditions).16 The right to complain should be extended to other interested parties, as a rule, with the consent of the person concerned (such as his or her lawyer or an organi­ sation concerned with the welfare of persons deprived of their liberty). It is also important that transparent procedures, including appeal procedures (when com­ plaints are rejected), should be established. Furthermore, the EU Ombudsman has recommended that information provided to returnees include contact details of agencies or individuals who might assist returnees in submitting complaints when they are back in the country of return, such as NGOs, pro bono lawyers, and third-country Ombudsmen.17

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As regards provision of information, the EU Regulation states that the Agency shall ensure that information about the possibility and procedure for making a complaint is readily available, including for vulnerable persons. The complaint form must be available on the website and a copy of the complaint form must also be made available during return flights.18 The new draft 2019 regulation pro­ poses, furthermore, that a standardised complaint form shall be made available and be easily accessible, including on mobile devices. In addition, the agency shall ensure that further guidance and assistance on the complaint procedure is provided to the complainants. In the same way, according to the Code of Conduct for return operations, the head of return operations or the competent authorities of the member state hosting a return intervention must ensure that returnees have information about the possibility to submit a complaint if their rights are violated. According to this author’s own experiences during return operations, as well as the information I have received from the police officers participating in return flights, returnees are not provided with information about their possibilities to submit complaints systematically and in advance. Information leaflets about this right exist, but as far as I have been informed, they are not systematically distrib­ uted to the returnees. In the words of an experienced police officer, the ‘complaint mechanism is currently only functioning on paper.’19 When appropriate, the detainees should be provided with information on the complaint procedure during return flights at the point when they are placed in migration detention centres, open reception centres, or while they are placed at the airport waiting for the boarding. Arrangements could be made to ensure that external bodies provide such information; nevertheless, this does not discharge the state from its responsibility to provide appropriate legal information when it is deprivating persons of their liberty. All the information provided – for example, during return flights – should be accessible and available in user-friendly formats. Long-term detention, for exam­ ple, can affect detainees’ capability to understand their rights during return opera­ tions. Some returnees might not know what ‘fundamental rights’ means in the context of a return flight. Introductory leaflets/brochures containing information on complaint procedures should be systematically distributed to migrants, their family members, legal guardians, and other trusted persons. Those who are unable to understand such information should receive appropriate assistance. Finally, if a complaint is considered inadmissible, complainants should be informed of the reasons by the competent complaint body and, where possible, provided with further options for addressing their concerns. If the returnee faces inhuman treatment upon return, he or she may, for example, be entitled to com­ pensation or even have the possibility to return to the sending country.20 10.2.3   Accessibility, confidentiality, and safety As noted above, complaint forms should always be made available to returnees. If needed, appropriate support should be given to persons who do not know how to make a complaint. Persons with special needs, particularly persons having

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problems with speaking, reading, and understanding the language during return operation, should be offered alternative means of communication and the pro­ vision of appropriate assistance. Specific action should be taken to ensure that persons with disabilities have unrestricted access to complaint mechanisms. It is clear that the fact that a returnee has a lawyer in the sending country does not affect his or her own right to make complaints. Arrangements should also be made to ensure that complainants are free from intimidation and reprisals. In this connection, staff operating in return flights should receive the clear message that any kind of attempt to prevent complaints from reaching the relevant complaint bodies will not be tolerated and will be the subject of appropriate sanctions. Furthermore, in order to safeguard the inter­ ests of the migrants, complaints shall be dealt with confidentially by the FRO in accordance with national and Union law unless the complainant explicitly waives his or her right to confidentiality. My own experience as well as the experience of other return flights monitors I have talked to indicates that complaint forms are not always systematically made available. It should also be kept in mind that in some situations and contexts escorts and other staff members during return flights can have a temptation to prevent returnees from submitting a complaint. For this reason, the complaint mechanism should be easily accessible to anyone who wishes to submit a com­ plaint. Official complaint forms with necessary contact information should always be made available in hard copy during return operations. In addition, escorts should always wear a visible identification tag to make them easily identifiable (either by their name or by an identification number). The perceived fairness of a complaint system is crucial to its effectiveness in combat­ ing impunity and promoting a safe environment for returnees. The system should inspire public confidence and its operation should not dissuade the persons in question from making complaints. 10.2.4  Effectiveness    and accountability In order to be considered effective, a complaint mechanism should be capable of processing the complaints received promptly, thoroughly, and expeditiously. It should also be capable of remedying any failure to offer protection that leading to a determination of responsibility, and an appropriate sanction of those responsi­ ble; preventing further rights violations (preventive function); and, where appro­ priate, offering compensation (compensatory function). Complaint bodies should also be entitled to initiate ex officio proceedings (i.e. without an official complaint being lodged) whenever there are indications of serious abuse. In this context, the adequacy of the investigations into complaints of torture and other forms of ill-treatment has been the subject of an extensive case law of the European Court of Human Rights.21 This may involve a review of documents, interviewing in private the complainant as well as witnesses, including staff mem­ bers, requesting medical and other expertise, and obtaining detailed information from the relevant authorities.

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According to the EU regulation, the FRO shall handle complaints in accord­ ance with the right to good administration and shall ensure the follow-up of the complaint. The complainant shall be informed about the procedure and informed ‘that a response may be expected as soon as it becomes available.’ The decision regarding a complaint shall be in written form and reasoned. In the case of a regis­ tered complaint concerning a staff member of Frontex, the FRO shall recommend to the executive director appropriate follow-up, including disciplinary measures, and where appropriate, referral to civil and criminal justice procedures in accord­ ance with the regulation and national law. The executive director shall ensure the appropriate follow-up and report back to the FRO within a determined time frame, and if necessary, at regular intervals thereafter regarding the implementa­ tion of disciplinary measures as the findings and follow-up made by the Agency in response to the complaint. The body receiving complaints should keep a record of complaints that have been dealt with in a specific register. Such a register would include the names of the complainants, the type of complaints, the outcome of the complaint procedure and of any appeal procedure, follow-up action taken to remedy the situation com­ plained of, and any compensation provided to the complainants. These records should serve as a management tool. For instance, it may be the case that many of the complaints relate to the same member of staff. If the data are correctly gath­ ered and analysed, this will make it possible to identify trends and facilitate future decision making. According to the EU regulation, all admissible complaints are registered and handled in a way that respects the data protection legislation. The FRO registers complaints also for the annual report of Frontex. As noted above, the FRO is responsible for handling complaints received by the Agency in accordance with the right to good administration. For this purpose, he or she shall review the admissibility of a complaint, register admissible com­ plaints, and forward all registered complaints to the executive director and com­ plaints concerning members of the teams to the home member state, including the relevant authority or body competent for ensuring compliance with fundamental rights, for further action in accordance with their mandate.

10.3 National investigation of complaints in Finland In Finland, the ‘body competent for fundamental rights’ is the Parliamentary Ombudsman of Finland. The Ombudsman is a supreme overseer of legality, elected by the Parliament. According to the Finnish Constitution, the Parliamen­ tary Ombudsman exercises oversight to ensure that those who perform public tasks comply with the law, fulfil their responsibilities, and implement fundamen­ tal and human rights in their activities. The scope of the Ombudsman’s oversight includes courts, authorities, and public servants as well as other persons and bod­ ies that perform public tasks. In the division of labour between the Ombudsman and Chancellor of Justice, the other national overseer of legality, responsibility for matters concerning prisons and other closed institutions where people are deprived of their liberty has been entrusted to the Ombudsman.

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The Ombudsman is independent and acts outside the traditional tripartite divi­ sion of powers of state – legislative, executive, and judicial. Anyone can file a complaint if he or she feels that a civil servant, for example, has acted unlawfully or neglected a duty in the performance of his or her task. The Ombudsman has the right to receive from authorities and others who perform public services all the information he or she needs in order to perform his or her oversight of legality. The objective, among other things, is to ensure that various administrative sec­ tors’ own systems of legal remedies and internal oversight mechanisms operate appropriately. Besides the Constitution of Finland, the powers and tasks of the Ombudsman are regulated in the Parliamentary Ombudsman Act. According to this Act, the Ombudsman shall investigate a complaint if the matter to which it relates falls within his or her remit and if there is reason to suspect that the subject has acted unlawfully or neglected a duty or if the Ombudsman for another reason takes the view that doing so is warranted. After receiving a complaint, the Ombudsman shall take the measures that he or she deems necessary from the perspective of compliance with the law, protection under the law, or implementation of funda­ mental and human rights. The Ombudsman can transfer handling of a complaint to a competent authority if the nature of the matter so warrants. If, in a matter within his or her remit, the Ombudsman concludes that a subject has acted unlawfully or neglected a duty but considers that a criminal charge or disciplinary proceedings are nonetheless unwarranted, the Ombudsman may issue a reprimand to the subject for future guidance. Furthermore, and if necessary, the Ombudsman may express to the sub­ ject his or her opinion concerning what constitutes proper observance of the law, or draw the attention of the subject to the requirements of good administration or to considerations of fundamental and human rights. In a matter within the Ombudsman’s remit, he or she may also issue a recom­ mendation to the competent authority that an error be redressed or a shortcoming rectified. In addition, the Ombudsman may draw the attention of the government or another body responsible for legislative drafting to defects in legislation or offi­ cial regulations, as well as make recommendations concerning the development of these and the elimination of the defects. Finally, the Ombudsman may order that a police inquiry, as referred to in the Police Act or a pre-trial investigation, as referred to in the Pre-trial Investigations Act, be carried out in order to clarify a matter under investigation by the Ombudsman. The Parliamentary Ombudsman can be considered as an independent institu­ tion, the activities of which are based on a strong constitutional mandate. The Ombudsman and his or her staff are independent of the national administration and enjoy functional and financial independence as well. The Ombudsman is free to appoint the staff of the office, as well as to develop and decide its own working methods and rules of procedure. Even though the Ombudsman is elected by the national parliament, she or he is independent of the legislature and does not take instructions from parliamentarians or other public officials. The Parliament may, however, for extremely weighty reasons and after consulting the Constitutional

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Law Committee dismiss the Ombudsman before the end of his or her term by a decision supported by at least two-thirds of votes cast. The independent and strong mandate of the Parliamentary Ombudsman guaran­ tees that if the Frontex Fundamental Rights Officer forwards a complaint concern­ ing a national team to Finland, the complaint will be investigated according to the established principles of good complaint system discussed above.

10.4 Concluding observations: do human rights stop at the airport? The situation of detained migrants who are subject to a removal order is com­ plex. During the removal operation, from the place of detention to the country of destination, several countries and organisations may be involved. Further­ more, migrants may complain on various grounds, such as their missing personal belongings, the absence of fit-to-fly documents, the failure to provide adequate access to asylum procedures, or excessive use of force by staff (e.g. before and during a forced return operation). In addition, different bodies may be involved in the handling of these com­ plaints. Once the return operation is engaged, migrants are seldom aware of which authority is responsible for which part of the operation. This underlines again the importance of transparent complaint procedures. In some countries, the escorting authorities inform the returnees about complaint procedures by providing them with flyers in a language they understand. This should always be the practice. The fact that a complaint procedure has been set up for migrants who are deported by return flights coordinated by Frontex is a positive development.22 In light of the expansion of Frontex’s mandate in the future, an effective complaint system becomes even more crucial and necessary. Under the new Frontex regula­ tion, the European Border and Coast Guard Agency will be strengthened in terms of staff and technical equipment. Frontex is also being given a broader mandate to support member states’ activities on border protection, return, and cooperation with third countries. New powers and a wider mandate require effective safe­ guards against the possible abuse of these powers. One fundamental safeguard is setting up an independent and effective complaint mechanism in line with the universal principles discussed in this chapter. In the context of return operations, the biggest challenge is to strengthen the independence and the practical operation of the complaint mechanism. The mech­ anism must exist not only in paper but also in practice. When the Committee for the Prevention of Torture (CPT) on 14 August 2018 monitored a return flight from Germany to Afghanistan, it noted in its report that during the present removal operation by air, returnees were expected to address either their respective escorts or the escort leader if they felt that their rights and entitlements had been violated. They could also have addressed com­ plaints to the representatives of the social support service present at Munich Airport. That said, the procedure appeared not to be clearly established in

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practice; for instance, it was initially not clear who could provide returnees with a copy of the official complaint form. The Federal Police informed the delegation that the form was provided only upon request and that it was only available in the English language.23 During the above-mentioned return operation, none of the returnees were informed about the right to make a complaint nor were they told how to make a complaint, and there were no complaint forms provided during the flight, render­ ing the right to complain ineffective in practice. The CPT reminded in its report that complaint mechanism should be available, accessible, confidential/safe, effective, and traceable. As part of these guarantees, persons deprived of their liberty should promptly receive information, both orally and in writing, about all avenues of complaint in a language they can understand. It is important that the existence and functioning of a complaint mechanism is monitored by independent monitors, such as by NPMs. From the consultations held with the National Agency for the Prevention of Torture before the return flight operation to Afghanistan, it became apparent that the German NPM, for example, is now regularly monitoring return operations by air. In 2017, eight return operations were monitored by the NPM and three more in 2018 (until early October); this included three Frontex-coordinated operations as well as one Dub­ lin return, and members of the NPM had accompanied the flight phase on six occasions. The National Agency had also developed standards on removals. In its report, the CPT welcomed the regular and independent monitoring of removal operations by air by the NPM. In addition to CPT return flights monitors, the return operation to Afghanistan was also monitored by a forced return monitor from the ‘pool of forced-return monitors,’ as required under the 2016 European Border and Coast Guard Regula­ tion and the 2008 Returns Directive. The pool includes persons made available by member states and Frontex staff. The return flight to Afghanistan was monitored by a Frontex staff member. It is positive that return operations coordinated by Frontex are now monitored by an internal forced return monitor. However, and as stated also by the CPT, the current arrangements cannot be considered as an inde­ pendent external monitoring mechanism. To fulfil this criterion, the monitoring mechanism must meet the requirements of institutional independence. As already noted at the outset of this chapter, it is welcomed that Frontex has established a body where complaints can be submitted. However, it is obvious that this body is not a legally independent agency separate from Frontex. Ideally, a person investigating complaints should be completely independent from the agency implicated. The independence of the complaint system could be strength­ ened, for example, by making it possible to appeal against the decisions of the Fundamental Rights Officer to the European Ombudsman or to a new independent complaint commission. This would guarantee also the institutional independence of the complaint investigation. In addition, it should also be possible to submit a complaint after return. The CPT, for example, has consistently advocated the setting up of an effective

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complaint procedure, both internal and external, for any complaints from detain­ ees about their treatment. Such procedure should be accessible in practice, which means that detainees should be able to file a complaint while on board the plane during the flight or upon arrival to the destination, using the help of modern technology. Even though the complaint procedure is an important legal safeguard against the abuse of power, it is also in the interest of the returnees as well of the states and Frontex to avoid unnecessary complaints during return operations. One way to do this is to prepare migrants to the upcoming return and provide them with appropriate legal safeguards before the return takes place. The CPT has placed particular emphasis on timely notification of the removal to both the returnee and his or her lawyer. Following this notification, the returnee should be provided with immediate access to lawyer, access to medical doctor, and the right to inform a third person in the sending as well as in the receiving country of the coming return flight. These rights should be enjoyed by all categories of foreign nationals to be removed from the very outset of their notification but at least 24 hours prior to the flight. If needed, psychosocial support should be available prior to return operation. One of the paradoxes of the return operations – both national and returns opera­ tions organised by Frontex – is that the monitoring of the treatment of returnees stops at the airport of the destination country. Frontex or sending countries do not know what happens to returnees (rejected asylum seekers, for example) upon return, as independent post-return information is not collected. For this reason, decision makers and courts can make incorrect decisions and return asylum seek­ ers to areas where returnees may face serious human rights violations without ever finding this out. Inversely, authorities or courts may decide not to return irregular migrants to countries or to certain areas in a country, even though it is safe to return them to these areas. In general, post-return information could increase the transparency, accountability, and legitimacy of return policies and support policy makers in developing programmes that could assist in creating conditions for quality returns. More systematic collection of information on post-return experiences could complement the current means for gathering country-of-origin information, and, in that way, improve the quality and human rights compliancy of the return opera­ tions. The monitoring of the return conditions would assist in striking a fairer and more accountable balance between the interests of the returning states, the countries of origin, and the individuals concerned. In the future, monitoring could be done by using modern technology such as user-friendly applications on mobile phones. This method would enable the collection of a large amount of data cheaply, quickly, and safely. As more people have the possibility of sharing their post-return information, the more reliable the human rights information will be. The European Ombudsman has also paid attention to the lack of post-return information. In her decision (01/9/2014), she noted that the responsibility of those involved in a return operation finishes when the handover has taken place. Neither Frontex nor the member state involved has a specific obligation

Complaint mechanism during return flights 231 to check on the welfare and treatment of those who have been returned to their countries of origin. There is no regular follow-up in terms of what happens to returnees after the handover, even though such follow-up could – as she wrote – ‘arguably make a difference.’ She recommended that returnees be informed of which agency or service may be able to assist them in the return country with making a complaint. This information should therefore include contact details of agencies or individuals who might assist returnees to submit a complaint when they are back in the country of return, such as NGOs, pro bono lawyers, and thirdcountry ombudsmen. Indeed, the next step in the context of return operations by states or by Frontex should be the development of independent post-return monitoring mechanisms, especially for vulnerable groups as noted, for example, by the UN Committee for Against Torture. The Committee has recommended that states should put into place mechanisms to monitor the situation of vulnerable individuals and groups in receiving countries after their deportation, even in cases where return is voluntary, and act upon reports of ill-treatment, including for the purpose of informing its asylum policies.24 Post-return monitoring could both strengthen the protection of returnees as well assist in creating effective, transparent, and morally responsible return policies. Collection of independent information could be done by organisations that have specialised for the collection of post-return information.25 Only when post-return monitoring and post-arrival complaint mechanisms are in place will it be possi­ ble to say whether Frontex return operations are compliant in fundamental rights in practice and whether the principle of non-refoulement has been respected.26 In other words, those who use public power must be responsible for their deci­ sions. In an increasingly interconnected world, human rights should not stop at the airport.

Notes 1 In general, see 27th Annual Report of the CPT. Available at https://rm.coe.int/16807 bc1cf. 2 Where the body designated as the NPM performs other functions in addition to those under the Optional Protocol, its NPM functions should be located within a separate unit or department, with its own staff and budget. See SPT Guidelines on National Pre­ ventive Mechanism, para. 32, www.ohchr.org/EN/HRBodies/OPCAT/Pages/National PreventiveMechanisms.aspx. 3 See OHCHR, ‘Preventing Torture – The Role of National Preventive Mechanism’, A Practical Guide, Professional training, Series No. 21, New York, 2018. 4 See J. Pirjola, ‘The Parliamentary Ombudsman of Finland as a National Preventive Mechanism Under the Optional Protocol to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, Nordic Journal of International Law, Vol. 77, 2008, pp. 163–174. 5 See also S. Carrera & M. Stefan, ‘Complaint Mechanisms in Border Management and Expulsion Operations in Europe Effective Remedies for Victims of Human Rights Violations’, Centre for European Policy Studies (CEPS) Brussels. 2018. 6 Regulation 2016/1624 of the European Parliament and of the Council of 14 September 2016.

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7 Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Pun­ ishment (CPT) from 13 to 15 August 2018. Available at www.coe.int. 8 See A. Neal, ‘Securitization and Risk at the EU Border: The Origin of Frontex’, Jour­ nal of Common market Studies, Vol. 47, 2009, pp. 333–356. 9 See A. Baldaccini, ‘Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea’, in B. Ryan & V. Mitsilegas (eds.), Extraterritorial Immigration Control. Legal Challenges, Leiden: Martinus Nijhoff Publishers, 2010, pp. 229–255. Baldaccini notes that ‘There are also questions as to the extent to which Frontex, as an Agency of the EU, is itself responsible for ensuring that operations are respectful of human rights’, at p. 230. 10 European Ombudsman, Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/BEH-MHZ concerning Frontex, 12 October 2013. 11 D. Fernandez Rojo, ‘The Introduction of an Individual Complaint Mechanism Within Frontex: Two Steps Forward, One Step Back’, Tijdschrift voor Bestuurswetenschap­ pen en Publiekrecht, No. 4–5, 2016, p. 226. 12 Decision of the European Ombudsman closing her own-initiative inquiry OI/9/2014/ MHZ concerning the European Agency for the Management of Operational Coopera­ tion at the External Borders of the Member States of the European Union (Frontex). 13 See Complaint Form for Potential Violations of Fundamental Rights. Available at www.frontex.com. 14 Regulation 2016/1624 of the European Parliament and of the Council 0f 14 Septem­ ber 2016, art 72. 15 Draft regulation 2019/XXX. 16 27th Annual Report of the CPT. 17 Decision of the European Ombudsman closing her own initiative inquiry OI/9/2014/ MHZ concerning the European Agency for the Management of Operational Coopera­ tion at the External Borders of the Member States of the European Union, p. 15. 18 Regulation 2016/1624 of the European Parliament and of the Council of 14 Septem­ ber 2016, art. 72. 19 E-mail from participating police officers of 12 June 2018 regarding the practical func­ tioning of the Frontex complaints procedure. In the file of the author. 20 X v. Switzerland, app no 16744/14 (ECHR 26 January 2017). 21 For detailed analysis, see 14th General Report on the CPT’s activities. 22 Frontex Annual Activity Report 2017, Brussels, 27 June 2018. The FRO team has also supported the drafting of a new procedure on the complaints mechanism for return activities. The mechanism strives to have an online system for submission of com­ plaints directly from mobile devices. 23 Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Pun­ ishment (CPT) from 13 to 15 August 2018, para 58. Available at www.coe.int. 24 The Committee Against Torture (CAT/C/SR.1386), 30 November 2015. 25 For example, organisations like the new ‘Post-Return Observatory’ in Finland whose aim is to collect independent information from the returnees for the benefit of states as well as for the returning migrants. 26 See J. Pirjola, ‘Out of Sight, Out of Mind: Post-return Monitoring – A Missing Link in the International Protection of Refugees?’ Published in Refugee Survey Quarterly, Vol 38, issue 4.

References Baldaccini, A. (2010), ‘Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea’, in B. Ryan & V. Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges, Leiden: Martinus Nijhoff Publishers, pp. 229–255.

Complaint mechanism during return flights 233 Carrera, S. & Stefan, M. (2018), ‘Complaint Mechanisms in Border Management and Expulsion Operations in Europe Effective Remedies for Victims of Human Rights Vio­ lations’, Centre for European Policy Studies (CEPS), Brussels. Council of Europe (2017), 217th General Report of the CPT, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1 January–31 December, https://rm.coe.int/16807bc1cf. Council of Europe (2018), ‘Report to the German Government on the Visit to Germany Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 13 to 15 August 2018’. European Ombudsman (2013), ‘Special Report of the European Ombudsman in OwnInitiative Inquiry OI/5/2012/BEH-MHZ Concerning Frontex’, 12 October 2013. Fernandez Rojo, D. (2016), ‘The Introduction of an Individual Complaint Mechanism Within Frontex: Two Steps Forward, One Step Back’, Tijdschrift voor Bestuursweten­ schappen en Publiekrecht, No. 4–5, p. 226. Frontex (2018), ‘Frontex Annual Activity Report 2017’, Brussels, 27 June. Neal, A. (2009), ‘Securitization and Risk at the EU Border. The Origin of Frontex’, Journal of Common Market Studies, Vol. 47, No. 2, pp. 333–356. OHCHR (2018), ‘Preventing Torture – The role of National Preventive Mechanism’, A Practical Guide, Professional Training, Series No. 21, New York. Pirjola, J. (2008), ‘The Parliamentary Ombudsman of Finland as a National Preventive Mechanism under the Optional Protocol to the United Nations Convention Against Tor­ ture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, Nordic Journal of International Law, Vol. 77, No. 1–2, pp. 163–174. Pirjola, J. (2019), ‘Out of Sight, Out of Mind: Post-Return Monitoring – A Missing Link in the International Protection of Refugees?’, Refugee Survey Quarterly, Vol. 38, No 4, pp. 363–386.

11 Mechanisms to prevent pushbacks Tineke Strik

11.1 Introduction With the aim to combat irregular migration, Council of Europe member states concentrate much effort on guarding their borders. Although states are bound to reconcile border control with international refugee law, refusals of entry and expulsions without any individual assessment of protection needs have become a documented phenomenon at Europe’s borders, even on the territory of mem­ ber states further inland. As these practices are persistent and widespread and, in some countries, even take on a systematic character, those ‘pushbacks’ can be considered as part of national policies rather than incidental measures. The high­ est risk attached to pushbacks is the violation of the right to asylum and the non­ refoulement principle, meaning that states are not allowed to send a person back to a place where he or she might face persecution in the sense of the United Nations 1951 Convention relating to the Status of Refugees, or inhuman or degrading treatment in the sense of the European Convention on Human Rights. This is why the European Court of Human Rights requires an individual assessment on protec­ tion needs and the safety of a return in order to prevent violations of Article 3 of the Convention. There are also reports and evidence of inhuman and degrading treatment of member states and their agencies in the framework of these pushbacks, through intimidation, taking or destroying goods of migrants, and even through the use of violence and depriving migrants of food and basic services. In their denial of pushback action, these types of (sometimes systematic) inhuman and degrading treatment are denied as well, and as a consequence not adequately examined. Pushbacks take place in particular at European Union borders, which is at least in part a consequence of the shortcomings of the current Dublin regula­ tion and of the failure of attempts to introduce fair responsibility sharing in Europe. But also at the internal Schengen borders, migrants are automatically stopped or returned. This chapter is based on my research as a rapporteur for the Parliamentary Assembly of the Council of Europe about pushback actions and policies throughout Europe. My report led to the adoption of a resolution and recommendation by the Assembly at 28 June 2019 (Strik 2019). This chapter sets out the legal framework prohibiting pushbacks and gives an overview of

Mechanisms to prevent pushbacks 235 the practices in Europe. I analyse the situation at the Croatian-Bosnian border as a case study, based on my field research. After that, I discuss the mechanisms of judicial oversight and complaints now in place and the factors that determine their effectiveness.

11.2 Legal framework 11.2.1  Definition    of pushbacks Pushing back an irregular migrant without any individual assessment of protec­ tion needs, creates the risk of refoulement. The obligation of states not to expel or return (refouler) a person to territories where his or her life or freedom would be threatened is a protection principle set out in Article 33 of the United Nations 1951 Convention Relating to the Status of Refugees, Article 3 of the Convention on Human Rights, and Article 3 of the Convention Against Torture. Article 33 of the Refugee Convention prohibits states from expelling or returning (refouler) a refugee in any manner whatsoever to a territory where she or he would be at risk of persecution as defined in Article 1 of the Convention. The prohibition of refoulement applies to all refugees, including those who have not been formally recognised as such, and to asylum seekers whose status has not yet been deter­ mined. Denying a person access to a proper asylum procedure before he or she is returned implies that the member state concerned creates the risk of refoule­ ment. As the principle of non-refoulement is increasingly recognised as a norm of customary international law (Goodwin-Gill & McAdam 2007, p. 354; Wallace 2014, p. 435), it also applies to states which have not ratified the relevant conven­ tions, but it can also affect the validity of (bilateral) agreements which violate this principle.1 Article 4 of Protocol No. 4 to the European Convention on Human Rights spe­ cifically prohibits the collective expulsion of aliens. Collective expulsion has been defined by the European Court of Human Rights as ‘any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group’ (see, for instance, Čonka v. Belgium – 51564/99). Because of the lack of any individual assessment of protection needs, the non­ refoulement principle of Article 3 of the ECHR applies as well, sometimes also due to the violence the pushbacks are accompanied with. Pushback actions are closely linked to another phenomenon described as ‘pull­ back.’ This consists in agreement between countries that migrants will be retained on one side, usually in exchange for financial or other economic incentives given to the retaining country. Pullbacks are implemented by means of joint patrols, agreements to prevent migrants from approaching the border, in some cases fund­ ing for reception centres or camps (Strik 2018). This poses a serious problem of responsibility for violations of the human rights of migrants denied freedom of movement or access to an asylum procedure and potentially victims of the worst forms of inhuman treatment.

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11.2.2 What’s at stake? Irregularly travelling migrants, especially the refugees among them, are extremely vulnerable in border regions where they depend on proper and understandable information and the right procedures as well as effective application of these rules. Reported pushbacks concern actions towards migrants who have managed to cross the border and find themselves inland and actions towards migrants who are present near or at the border while attempting to cross it. A significant number of them have attempted or envisaged submitting an asylum claim. The denial of access to a proper asylum procedure for victims of pushbacks implies that they run the risk of being returned to or stranded in another country where they do not have access to a proper asylum procedure either, which puts them at risk of being sent back to yet another country (so-called ‘chain refoulement’). Pushbacks can, however, also lead to direct persecution or inhuman or degrading treatment in the country which they are returned to, or from which they cannot escape. The core obligations of asylum and international law are intended to prevent this from happening. Pushbacks can be seen as a next step in the deterrence policies as developed by wealthy countries in response to the rising numbers of asylum seekers and refu­ gees. During the last three decades, such countries developed different types of policies deterring or preventing migrants and refugees from arriving at their ter­ ritory (Hathaway 1992, pp. 40–41), such as visa requirements, carrier sanctions, and liaison officers in countries of departure. Cooperation with third countries on migration primarily aims at preventing migrants from departing a country of transit or returning them there. Regarding refugees who nevertheless managed to enter their territory, states introduced measures to exclude them from the asy­ lum procedure (Vedsted-Hansen 1999) such as time-limits or safe third-countries concepts (Hurwitz 2009; Gil-Bazo 2006). Deterrence policies not only increase the already large burden upon the main host countries for refugees (GammeltoftHansen & Tan 2017, p. 28) but also make asylum seekers more vulnerable, inherent to their clandestine position. Despite the formal aim to combat human smuggling, they make more asylum seekers dependent on smugglers and subject to abuse and violence. According to Gammeltoft-Hansen and Hathaway (2015), the underlying belief of the deterrence paradigm is that developed states can successfully insulate themselves from taking their fair share in the global responsibility for refugee protection by both designing migration control in a way that pre­ vents refugees from requesting protection at their borders and at the same time expressing their commitment to international refugee law. Although their poli­ cies are clearly at odds with the international legal regime, the deterrence para­ digm is not premised on a rejection of international refugee and human rights law. Instead, these developed states prefer to confirm international standards in order to keep the main hosting countries committed to the current asylum regime. Political leaders of wealthy states may be dissatisfied with the Refugee

Mechanisms to prevent pushbacks 237 Convention, but they know that the adoption of any new system would need to address the huge inequality of the current responsibility sharing and thus increase instead of diminish their own burden. Although the Refugee Convention is based on the principle of a common responsibility for refugees, and international law has developed criteria for responsibility outside the territory (see for instance Den Heijer 2011, 2017; Fren­ zen 2017), the most unambiguous criterion for legal responsibility is territory and sovereignty. This link between territory and responsibility is a strong incentive for deterrence policies. Gammeltoft-Hansen (2014) describes deterrence policies as examples of ‘creative legal thinking’ in order to limit, shift, or circumvent legal obligations. Pushback policies can be perceived as a next step in this tendency, beyond creative thinking, as any pretention to respect international law is absent. Whereas other measures aim to prevent migrants from reaching the territory or borders in order to be preserved from the obligation to protect refugees, pushingback states simply deny their responsibility for migrants that have reached their borders and are thus entitled to invoke international human rights law. States that persistently deny reported cases of pushbacks do not fully investigate allegations. By doing so, they deprive victims of the right to an effective remedy and to hold authorities accountable for human rights violations. States that admit their pushback policies and use it as a way to deter migrants from heading to their country openly challenge both the international legal framework and the principle of an equitable responsibility sharing on the global level. As this blunt attitude may also undermine the acceptance of responsibility by the main hosting countries, the pushing-back policies are among all deterrence measures the most serious threat to the international refugee law system. 11.2.3 Council of Europe On the basis of Article 3 of the Convention, the Court has consistently reiterated in its case law the importance of individualised procedural safeguards in order to prevent refoulement, often with a reference to the prohibition of collective expul­ sions. In Sharifi and others v. Italy and Greece,2 it found a violation of Article 4 of Protocol 4 to the Convention due to the lack of access to individualised procedural safeguards at the port of Ancona, where the applicants had been detained. The Court held that the Dublin system, the mechanism for deciding which EU state is in charge of handling an asylum claim lodged by a third-country national, must be applied in a manner compatible with the Convention. According to the Court, no form of collective and indiscriminate returns can be justified by reference to the Dublin system or to migratory pressure (para. 225). The returning State has to ensure that the destination country offers sufficient guarantees to prevent the person concerned being removed to his country of origin without an assessment of the risks faced. In its landmark Hirsi Jamaa case, the Court convicted Italy for its pushback operations in international waters in cooperation with Libya. Automatic returns

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(pushback operations) without any individual assessment and the possibility of legal redress constitute a violation of Articles 3 and 13 of the European Conven­ tion on Human Rights (ECHR) and Article 4 of the Protocol 4 to the Convention.3 The Court held: ‘[W]here a State had, exceptionally, exercised its jurisdiction outside its national territory, it could accept that the exercise of extraterritorial jurisdiction by that State had taken the form of collective expulsion.’ This case is particularly relevant for incidents involving expulsions at sea (pushbacks from Italy to Libya, for instance). Once again, the failure to take the victims’ individual circumstances into account informed the Court’s finding of a violation of Proto­ col 4. The Court made clear that member states exercising effective control over migrants also exercise jurisdiction and are therefore bound by the obligations of the ECHR, even if this control takes place outside their territory. Since then, mem­ ber states tend to circumvent their responsibility with creative interpretations of their jurisdiction and territory. In its judgment in N.D. and N.T. v. Spain of 2017, on the automatic return of sub-Saharan migrants by the Spanish government to Morocco, the ECtHR recalled its jurisdiction as established in the Hirsi judgment and made clear that member states cannot escape their responsibility while construing their jurisdic­ tion in a certain way.4 Member states are hence not allowed to move their borders inwards to prevent asylum seekers from making an asylum claim (Gortazár Rotae­ che & Ferré Trad 2017; Pijnenburg 2017). After the case was referred to the Grand Chamber, the Council of Europe Commissioner for Human Rights submitted his written observations, in which he confirmed the violence against the migrants and the absence of any individual examination or right to an effective remedy.5 In relation to the refusal of access to territory and to asylum application proce­ dures, at the time of writing (May 2019) the ECtHR had imposed interim measures on Hungary for the eighth time, ordering a family of Afghan asylum seekers to be given adequate food supplies while in the Röszke border transit zone. Recently, the Hungarian authorities forced two asylum-seeking Afghan families to leave the country under duress, which was condemned by UNHCR (2019) as deeply shock­ ing and a flagrant violation of international and EU law. According to the HHC, they were faced with a choice of either returning to Kabul or cross the border to Serbia (HHC). The ECtHR issued interim measures to Poland in several cases concerning pushbacks to Belarus in 2017.6 In the same year, 34 complaints against the Bor­ der Guard were registered by the Voivodeship Administrative Court, while the Supreme Administrative Court recently ruled in 12 cases that the official notes issued and signed only by the Border Guard to substantiate refusal of entry deci­ sions, referring solely to economic activity as the reason for foreigners’ entry into the country, were not credible. Applicants before the Court alleged they had been pushed back several times to Belarus (in one case 28 times!), including after the issue of the interim measures under Rule 39 to allow them to apply for asylum in Poland. Despite this, all the applicants were still in Belarus at the time of the communication. At the time of the report, none of these cases had been judged.

Mechanisms to prevent pushbacks 239 11.2.4 European Union 11.2.4.1 Legislation As stipulated in the introductory chapter, the guarantees under EU law are to some extent more extensive than those provided for in the Council of Europe instruments. Article 19 of the EU Charter on Fundamental Rights implements the prohibition of collective expulsions as enshrined in Protocol 4 to the ECHR, and Article 18 encompasses the non-refoulement principle of Article 3 of the ECHR. But in addition, Article 18 guarantees the right to asylum, which goes beyond the standards of the Convention as it also entails a certain content of the required pro­ tection, such as certain (social) rights attached to protection status. Another dif­ ference is that the Convention also applies to extraterritorial activities of a Treaty Party, if it meets the criteria of ‘effective control,’ but the EUCFR can only be invoked outside the EU territory in case of operations by EU Agencies, not by member states. Secondary asylum legislation does not apply at all outside the EU territory.7 This secondary asylum law encompasses specific guarantees for migrants arriving at the border of an EU member state. The Qualification Directive (2011/95) codifies the prohibition of non-refoulement as defined in the UN Refugee Convention and Article 3 of the Convention into EU secondary law, prohibiting member states from expelling an individual to a country where they face a real risk of persecution. Article 78 of the TFEU stipulates that the EU must provide a policy for asylum, subsidiary protection, and temporary protec­ tion, ‘ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the 1951 Geneva Convention and its Protocol and other relevant treaties.’ Access to procedural guarantees in order to invoke the right to asylum is established in Article 6 Procedures Directive (2013/32), which obliges member states to register an asylum application within three working days. According to the effectiveness principle and recital 27 of the Directive, from the moment a migrant has expressed his or her wish to apply for asylum, the Procedures Directive and other instruments of the Common European Asylum System are applicable. According to Article 2(b) of the Directive, an application for international protection means ‘a request made by a third-country national or a stateless person for protection, who can be understood to seek refugee status or subsidiary protection status.’ The directive therefore obliges member states, inter alia through Article 4, to ensure that national authorities are sensitive to signals expressing that a migrant wants to ask for protection. Recital 26 explic­ itly adds to this requirement that persons present in the territorial waters of a member state are to be disembarked on land and have their applications exam­ ined “in accordance with this Directive”. Furthermore, as already mentioned in the introductory chapter, the Schengen Border Code ensures that asylum law prevails over securing the borders.8

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11.2.4.2 Frontex The impact of the involvement of the European Border and Coast Guard Agency (Frontex) in border management is twofold. On the one hand, it helps reduce cases of police violence in general,9 but on the other hand, it seems to facilitate pushbacks or at least to refrain from interventions in pushbacks by member states. Allegations of complicity in the involvement of pushbacks by member states per­ sistently haunt the agency. These accusations concern involvement in expulsions of migrants from the shores of Italy to Libya (Crosbie 2009) and direct participa­ tion in violent pushback operations at the Evros land border between Turkey and Greece, whereby individuals are beaten and robbed of their possessions (Amnesty International 2014; Soguel 2018). In 2013, NGOs accused Frontex of complic­ ity in ‘maritime pushbacks’ between Greece and Turkey by implementing illegal operations designed to detect, dissuade, and intercept migrants wishing to claim asylum in Greece (Migreurop, FIDH & EMHRN 2014, p. 34). In 2015, questions were raised about the role of Frontex in pushbacks from Hungary to Serbia.10 These allegations have brought the European Ombudsman to start an investiga­ tion into the way Frontex implemented the Charter on Fundamental Rights. As Frontex did not provide for an individual complaint procedure, arguing that its task is limited to coordination, leaving responsibility for actions with the member states, the Ombudsman urged Frontex to establish a complaint procedure (Euro­ pean Ombudsman 2013). After Frontex remained silent, the Ombudsman started an investigation into the application of safeguards in the Regulation and Funda­ mental Rights Strategy and declared itself admissible for individual complaints about the behaviour of Frontex (European Ombudsman 2014). Although the EBCG Frontex Regulation, adopted in 2016, provides for a complaint procedure, it largely relies on the discretionary power of internal oversight bodies (Carrera & Stefan 2018, para. 2.2.2.).11 The Fundamental Rights Officer (FRO), responsi­ ble for assessing complaints, operates under the responsibility of the Executive Director, which raises doubts as to its independence. Complaints concerning a staff member of the agency are subjected to the scrutiny of the Executive Direc­ tor itself, and complaints concerning officers from the member states are dealt with by the national authorities of that state. In the revised EBCG Regulation, on which the co-legislatures reached an agreement in the trilogue on 28 March 2019 (European Council 2019), this mechanism has slightly changed.12 Apart from the addition of the criteria ‘effective’ and ‘independent,’ the mandatory recommenda­ tion by the FRO to the director about the follow-up to an admissible complaint, as well as the obligation of the director to report back to the FRO are relevant improvements. Furthermore, the scope is expanded to actions in third countries as well as to ‘failures to act’. Another relevant asset is the achievement of the European Parliament to have independent human rights monitors established who have a role in advising, monitoring, and evaluating operations. They will also act as forced return monitors and have access to every operational area. In the first year after entry into force of the Regulation, at least 40 human rights officers will be deployed.13 Although these changes contribute to an increased accountability,

Mechanisms to prevent pushbacks 241 there are still doubts if they correspond to the expansion of powers and competen­ cies of the agency (Gkliati 2019). 11.2.5 Civil society as a watchdog Apart from any potential accountability of Frontex, member states remain respon­ sible for not risking refoulement. Instead of undertaking action to abandon all types of pushbacks by responding actively and adequately to every signal or actual evidence, an increasing number of countries tend to refuse an independent exami­ nation of serious allegations, to simply deny them or even to accuse, stigmatise, or criminalise NGOs and other civil society actors who work to assist migrants in gaining access to an asylum procedure and protection. In reporting and attempting to investigate pushbacks and related human rights violations, they are frequently blamed and negatively framed for ‘interference,’ despite their role as key actors in facilitating migrants’ access to rights and to justice. Such behaviour towards those NGOs is in contradiction with adopted texts such as the Council of Europe Rec­ ommendation CM/Rec(2007)14 on the legal status of nongovernmental organisa­ tions in Europe.14 Civil society organisations working for the promotion of vulnerable groups and minority rights may be more likely to face threats. While in some Council of Europe member states there may not be an immediate danger to their per­ sonal safety, the environment in which they operate can still be hostile. Human rights defenders dealing with the rights of refugees, asylum seekers and migrants, women, LGBTI persons, Roma, and other national minority groups are in a par­ ticularly vulnerable position given the ‘unpopularity’ of such issues in many coun­ tries. It was noted how distorted and harmful rhetoric by politicians has led parts of the population to openly manifest hatred towards those groups and towards civil society actors that promote and protect their rights (AI 2019). The Commis­ sioner for Human Rights, expressing concerns about the increasingly challenging work of human rights defenders with regard to refugees and migrants, has made a number of recommendations regarding the importance of the work of nongov­ ernmental organisations and civil society in migration and the need for them to be allowed to carry out their work in an ‘enabling environment conducive to their work’ (CoE 2019b).

11.3 Cases of pushback actions 11.3.1 Pushbacks from European Union member states to countries outside of Europe 11.3.1.1 The border between Morocco and Spain at Ceuta and Melilla López-Sala (2019), in Chapter 1 of this book (on Ceuta and Melilla), as well as Barbero and Illamola-Dausa (2019), in Chapter 2 of this book (on the general return policy in Spain), observe a dangerous combination of increasing restrictions

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to access to an asylum procedure and the lack of complaint mechanisms or other ways to hold the authorities accountable for violating international law. An impor­ tant threat to the right of access to an asylum procedure formed the amendment to the Spanish Aliens Act of 2015, which provides that ‘those foreigners who are detected at Ceuta’s and Melilla’s border lines when trying to pass the border’s contentious elements to irregularly cross the border can be rejected to avoid their illegal entry in Spain’ (ECRE 2018a). Although accompanied by provisions aimed to guarantee international human rights obligations, the amendment has in prac­ tice allowed the Spanish government to justify collective expulsions. Spain’s approach towards migrants entering irregularly has led to individuals taking drastic measures, with over 700 migrants violently attempting to storm the Ceuta fence in July 2018.15 Despite widespread criticism of its policy, the Spanish interior ministry recently stated that there were no immediate plans to halt summary deportations.16 In September 2018, the Special Representative of the Secretariat General of the Council of Europe criticised the substandard liv­ ing conditions in the Spanish enclaves of Ceuta and Melilla (CoE 2018a). With regard to prevention of entry into the territory, he warned about the ‘questions raised with regard to the right to seek asylum and the respect for the principle of non-refoulement’ in the context of practices involving information sharing by the border police with the relevant authorities of a neighbouring country regarding suspected unauthorised bor­ der crossings and the subsequent action of the authorities in the neighbouring country to intercept migrants and refugees before they cross the border. (CoE 2018a, para. 3.1) Neither the judgment in N.D. and N.T., nor these criticisms, have led to any change in practice. 11.3.1.2 Pushbacks and pullbacks between Italy and Libya Under a 2008 agreement between Italy and Libya aimed at preventing irregular migration from Libya to Italy, Italy carried out several naval operations whereby it intercepted irregular migrants and returned them to Libya. These were con­ demned by the European Court of Human Rights in the Hirsi Jamaa case. This agreement was suspended in 2011, but in February 2017, a new memorandum of understanding provided for support from Italy to the Libyan Coast Guard to pull back migrants trying to cross from Libya to Italy. By refraining from any physical involvement in interceptions, it aimed to avoid the application of the ECHR. In 2018, a complaint has nevertheless been filed with the Court with the argument that Italy was responsible for a fatal rescue incident in November 2017 in which the Libyan coast guard allegedly interfered in attempts by an NGO ves­ sel to rescue 130 migrants from a sinking dinghy, as a result of which at least 20 migrants died and survivors suffered severe human rights violations in Libya. The application is currently under examination (GLAN 2018; Pijnenburg 2018). Italy

Mechanisms to prevent pushbacks 243 is not acting on its own: as the cooperation with the Libyan coast guard is largely supported by the EU Trust Fund for Africa, the EU is also accused of complicity in the human rights violations in Libya (HRW 2019; Carrera & Cortinovis 2019). In PACE Resolution 2228, the Assembly asked the Italian government to investigate fully the allegations of experts and international NGOs of returns to Libya of migrants picked up at sea in the Italian Search and Rescue Zone, and of collusion between the Libyan coast guard and the people smugglers in the Mediterranean. (Strik 2018, para. 11.3) Since then, the situation has, if anything, worsened since as political tensions and violence in Libya have risen, NGOs are no longer authorised to carry out search and rescue operations in the Mediterranean. 11.3.2 Pushbacks from EU to Council of Europe member states 11.3.2.1 Pushbacks from Greece to Turkey The chapter of this volume on Greek border policies shows that pushbacks to Turkey date back at least to 2012, when the fence was erected at the land border in the Evros region (Drakopoulou, Kostantinou & Koros 2019). They increas­ ingly took place at sea, where migrants tried to evade the border controls at the fenced land border. The notorious Farmakonisi case, where 12 people (including nine children) drowned when their boat was pushed back into the Turkish waters, illustrates that authorities are not held accountable if no independent investigation takes place, even despite ample evidence of their involvement in pushbacks.17 The EU-Turkey Statement of March 2016, which implied that arrivals at the Greek islands could be returned to Turkey, led to an increase of crossings and pushbacks at the land border (European Council 2016). In April 2017, some 3,600 asylum seekers attempted to cross the Evros River from Turkey into Greece.18 By the end of July 2017, 9,480 had attempted to make the crossing, and UNHCR recorded a total of 18,014 registrations at the land border as of 31 Decem­ ber 2018.19 Since mid-2017, there have been frequent reports of pushbacks into Turkey at the Evros border (ECRE 2017a, p. 23). Human Rights Watch (HRW 2018b) has accused the Greek authorities of summarily expelling migrants at this border, where migrants were allegedly beaten, robbed of their possessions, and subjected to ill-treatment by ‘forces wearing uniforms and masks without recog­ nizable insignia.’ These reports have been corroborated by other media outlets.20 In February 2018, the Greek Council for Refugees (GCR) reported that ‘large families, pregnant women, victims of torture but also minors,’ were victims of pushbacks at the Evros border. According to the GCR: A common element in their testimonies is their arbitrary detention in police stations, under extremely poor hygiene conditions, the use of violence and

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Tineke Strik their subsequent transfer, crammed in vans, on one side of the river, wherefrom, on overcrowded boats, they are transferred to the other side, with their lives exposed in danger and in violation of fundamental human rights. (GCR 2018, p. 2)

In February 2019, the Council of Europe’s Committee on the Prevention of Tor­ ture and Inhuman, or Degrading Treatment (CPT) reported the following after a visit to Greece regarding police and border guard stations in the Evros region: [S]everal foreign nationals interviewed in private at three places of detention made credible allegations about the occurrence of push-back operations from Greece to Turkey by boat across the Evros River border, after they had been apprehended by Greek police and border guards. A number of them alleged that they had been physically ill-treated (including baton blows to the head) by police and border guard officers or (para-) military commandos during such push-back operations . . . the CPT considers that, at least until early March 2018, these persons were not effectively protected against the risk of refoulement. The Committee recommends that the Greek authorities act to prevent any form of pushbacks taking place, and effectively protect foreign nationals against the risk of refoulement. (CoE 2019a, paras. 138-139) A follow-up report referring to continued allegations of such practices was released by the GCR in collaboration with the Greek NGOs ARSIS, and Human Rights 360 (December 2018). Public criticism, including from official monitoring bodies, did not seem to have altered the Greek policies. 11.3.2.2 Pushbacks from Hungary to Serbia Since the erection of the fence at the land border between Hungary and Serbia in 2015, access to asylum on the Hungarian territory is extremely difficult. Irregu­ lar entry into Hungary through the border fence is punishable by up to ten years imprisonment – and/or the imposition of an expulsion order. Lodging an asylum claim does not suspend the criminal procedure, placing Hungary in breach of Arti­ cle 31 of the 1951 Geneva Convention (ECRE 2017b, p. 18). Legal amendments that entered into force on 5 July 2016 allowed the Hungarian police to automati­ cally push back asylum seekers who were apprehended within 8 km of the SerbianHungarian or Croatian-Hungarian border, depriving them of the opportunity to lodge an asylum claim (ECRE 2017b; Tóth 2019). As a result, between 5 July and 31 December 2016, 19,057 migrants were denied access (i.e. prevented from entering or escorted back to the border) at the Hungarian-Serbian border. Further legal reforms in March 2017 and 2018 allowed successively for irregu­ larly staying migrants found anywhere in Hungary to be escorted to the external side of the border fence with Serbia and for the criminalisation of individuals and organisations considered to be assisting irregular crossing (UNHCR 2018).

Mechanisms to prevent pushbacks 245 In 2017, 9,136 migrants were pushed back from the territory of Hungary to the external side of the border fence with Serbia. The only legal means for those trav­ elling along the Balkans to enter Hungary is to lodge an asylum claim at one of the ‘transit zones’ erected along the borders between Serbia and Croatia. In practice, however, the number of migrants granted permission to enter Hungary is very small: Hungary applies the policy of non-entry to the territory in the transit zones. By January 2018, only one asylum seeker per day per transit zone, five days per week (a total of ten persons per week) was allowed to enter Hungary via each of the two transit zones. The refusal of access to an asylum procedure is accompanied by systematic intimidation and violence. Médecins sans Frontiers has recorded hundreds of inju­ ries inflicted by Hungarian border guards, including dog bites, irritations caused by pepper spray, and bruises caused by assaults,21 noting further that 76% of chil­ dren treated by its clinicians cite the state authorities as the main perpetrators of violence against them (MSF 2017, p. 4). HRW notes that ‘[a]sylum seekers are detained indefinitely in substandard border camps without a possibility to chal­ lenge their detention. They face violence during operations to force them back to the border, and limitations on meaningful access to asylum’ and that ‘[b]y August, authorities had limited daily entry of asylum seekers to 1–2 asylum seekers per day, leaving thousands stranded in poor conditions in Serbia’ (HRW 2018d). Dur­ ing a visit to Hungary, the CPT stated that injuries found on the bodies of inter­ viewees confirmed reports of beatings during pushback operations (CoE 2018b). The proliferation of unofficial ‘border hunters,’ which have subsequently become part of the Hungarian border patrol force, further fuels a hostile climate towards asylum seekers and puts all migrants at risk. According to Doctors Without Bor­ ders, such groups promote ‘xenophobic discourse and violence against refugees, asylum seekers and other migrants in the country.’22 There are similar reports of violent militias on the borders of Bulgaria and Slovenia. A related recent dissuasive measure taken by Hungary has been food depri­ vation of third-country nationals detained in the transit zones, evidenced from August 2018. After several interim measures issued by the ECtHR following complaints by the Hungarian Helsinki Committee (HHC), the Hungarian Immi­ gration and Asylum Office (IAO) undertook to provide food to all asylum-seekers in the transit zone. However, on 8 February 2019, the parents of an Iraqi family of five detained in the transit zone were refused food by the IAO for five days, until a new interim measure was issued by the Court ordering the practice to be stopped. Between February 2019 and 23 April 2019, the HHC had to request interim meas­ ures on a case-by-case basis in a total of eight cases, pertaining to three starved people in the transit zones, bringing the total number of starvation cases since August 2018 to 13, and that of affected individuals to 21 (HHC 2019). 11.3.2.3 Pushbacks from Bulgaria to Turkey Pushbacks and other violent actions appear to remain widespread along the border of Bulgaria with Turkey. Turkish agencies and organisations report that at least

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10,000 individuals are being pushed back collectively from Bulgaria and Greece into Turkey on a monthly basis. Low numbers of new arrivals into Bulgaria in the first half of 2018 and a sharp increase in the second half indicate unofficial crossborder cooperation between the Bulgarian and Turkish governments to prevent access through this external EU border, at least for the duration of the Bulgarian Presidency of the EU Council. According to the Asylum in Europe organisation (AIDA), alongside pushbacks this cooperation made access to the territory and international protection of those in need of it all the more difficult.23 In Bulgaria, migrants and asylum seekers have been expelled to Turkey without due process. Again, migrants report being beaten, assaulted with dogs, and robbed of their money, mobile phones, food, drinks, and other items. Border crossings into Bulgaria increased in 2018, and between August 2018 and October 2018, a total of 2,416 people were detained by the Bulgarian authorities. In Novem­ ber 2018, Bulgaria and Greece collectively pushed back 11,000 migrants, with many being stripped, beaten, and robbed of their food and possessions before being expelled to Turkey (ECRE 2018b; Bordermonitoring Bulgaria 2018).

11.4 Case study: pushbacks from Croatia to Bosnia and Herzegovina Croatia has the longest external land border of the European Union, spanning 1,300 km in all, of which 1,100 km separate the country from Bosnia and Herze­ govina. As a candidate Schengen country, effective border controls are a top prior­ ity for the Croatian authorities. Whereas the interest in complying with Schengen rules on refusing entry to irregular migrants is high, Croatia seems less interested in complying with the rules on international protection (Croatian Law Centre 2019). In 2017 and 2018, HRW reported that the Croatian police were violently expelling migrants back to the Serbian border and the Bosnian territory without giving them the chance to lodge an asylum claim. They explained on the basis of testimonies: Croatian police deported them to Bosnia and Herzegovina without due pro­ cess after detaining them deep inside Croatian territory. Sixteen, including women and children, said police beat them with batons, kicked and punched them, stole their money, and either stole or destroyed their mobile phones. (HRW 2018a) The Belgrade Centre for Human Rights and the International Aid Network (2017) published a report ‘Documenting Abuse and Collective Expulsions of Refugees and Migrants’ which includes data on pushbacks and violence against refugees and migrants by Croatian border police. According to the Asylum Infor­ mation Database (AIDA), ‘people from Afghanistan, but also from Iraq, Paki­ stan, Syria and other countries, were not given access to the asylum procedure, although some explicitly and repeatedly approached the Croatian police, express­ ing their wish to apply for international protection.’24

Mechanisms to prevent pushbacks 247 In October 2018, the Council of Europe Commissioner for Human Rights stated that she was ‘worried’ by reports from ‘expert refugee and migrant organi­ sations that provide consistent and substantiated information about a large number of collective expulsions from Croatia to Serbia and to Bosnia and Herzegovina of irregular migrants, including potential asylum seekers.’25 11.4.1 A closer examination These reports were the reason for initiating a working visit to Croatia (Zagreb and Cetingrad) and the border region of Bosnia and Herzegovina (from Velika Kladuša to Bihać) to gain first-hand knowledge of the situation regarding pushback action in this area. I was able to visit several ministries of Croatia, the UNHCR, and IOM partners on the ground, and to Médecins du Monde Belgique as well as many local NGOs, and also with the mayor of Bihać. The authorities confirmed that Croatia’s candidacy to become part of the Schengen area had made tight border control a priority nationally as well as for the EU. As the refugee camps in the Republic of Bosnia and Herzegovina, Velika Kladuša and Bihać, shelter a great variety of nationalities (among them North African, Syrian, Afghan, Somalian, Eritrean, and Iraqi nationals) at least part of the migrants entering Croatia would be entitled to protection. However, only few of them actually applied for asylum in Croatia. According to the Croatian govern­ ment, this follows from their wish to travel further, which is why many of them try to enter irregularly to avoid fingerprinting (and consequently the responsibility for Croatia based on the Dublin Regulation). In 2017, 70% of the people who reg­ istered as asylum seekers left Croatia before the end of the asylum procedure. At the same time, the Croatian authorities implicitly expressed their fear of becoming responsible for all asylum seekers entered, if the Dublin Regulation was strictly applied. This fear revealed their own interest in avoiding an asylum claim lodged as well. Frustration was high in the Croatian government on aspects of the Dublin reform negotiations, such as on the suggestion by some member states to carry out border and asylum procedures at control centres in coastal states. Croatia did not have problems in coastal regions and rejected the idea of opening a sea passage for migrants. 11.4.2 Border control and policing The Croatian Border Police force at the Cetingrad station explained that 80–90% of equipment and infrastructure was paid for by the European Union. In all, 6,500 officers were deployed along the border; on the Bosnian side there were only two to four officers between sectors. A mixed patrol system with the Bosnian police along the ‘green border’ of 25 km on the Bosnian territory offers Croatian officers the chance to use their equipment for a timely detecting of migrants. The police’s official remit was to prevent irregular immigration and cross-border trafficking, but those joint patrol operations may also have a deterring effect for asylum seek­ ers to approach official border-crossing points and ask for protection. According

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to the Croatian Ombudsman, the objective and effect of these joint patrols is that migrants are discouraged from approaching the Croatian/Bosnian border. 11.4.3 Allegations of pushbacks and violence During my meeting with her, the State Secretary for European and International Affairs explained that accusations of police violence were now the subject of inquiry at the ministry level instead of within the police’s own ranks. However, she was persistent in her denial of the alleged violence used by the border police and of the pushbacks. I was struck by the large discrepancies between the statements of the authorities and non-state actors like the Ombudsman and NGOs. The authori­ ties expressed mistrust of NGOs, seen as questioning unnecessarily the country’s border management, accusing the Croatian police of mistreatment where cases were extremely rare, and in some cases encouraging irregular border crossing. On the other hand, the findings of Ombudsman and NGOs were so consistent and sub­ stantiated that I as a rapporteur had to take and investigate them seriously. In this context, the Deputy Ombudsman of Croatia told me that only 1% of the complaints with the Ministry of the Interior about alleged pushbacks had been declared admissible, which caused her concern about the level of independence of the complaint procedure. It was not yet clear to the Ombudsman how the impar­ tiality will be safeguarded in the future procedures, especially while the com­ plaints remain to be dealt with by the same ministry. Many of the complaints concerned the experiences of undocumented migrants on the Croatian territory who were apprehended and brought to the police station. They claimed that they were not provided with information about the possibility to request for asylum but instead were brought back to the border or into Bos­ nian territory. As official return procedures to Bosnia and Serbia were not always easy, the detention period awaiting the return could take a long time. Those who managed to lodge an asylum claim had to wait for long periods, often in deten­ tion. The number of asylum claims had dropped by 40% in 2018 as compared to 2017. Length of detention in police stations was also a concern, as was the lack of adequate health care in several detention centres. Cases of suspected refoulement included, such as decisions concerning a large group of people turned away in 1.5 hours with exactly the same wording for each person ‘Economic migrants, do not wish to stay.’ Usually in these cases, deci­ sions ordered return with voluntary departure within a 7-day deadline. Additional problems outlined by independent bodies, international organisations, and NGOs concerned the non-registration of cases, the apprehension of migrants anywhere within the territory, sometimes far inland, and transportation to border areas where decisions were taken without allowing sufficient time for appeal, absence of interpretation, and misinformation about rights to protection. 11.4.4 Nongovernmental organisations All non-state actors also mentioned many cases in which detected migrants reported not being sent to a police station but immediately being brought to the

Mechanisms to prevent pushbacks 249 border or far inland within Bosnian territory, implying that no access to an asylum procedure was offered and official return procedures were circumvented. In some cases, this happened even with migrants who were found in the north of Croatia, sometimes after a formal readmission procedure was applied by the Slovenian authorities. An element that appeared to be structural, especially in those informal procedures, was the brutal way pushbacks were carried out. Goods, in particu­ lar mobile phones, were destroyed, people were intimidated, and many people reported that violence was used against them. Respondents also explained how systematic and well-documented these prac­ tices were. They referred to several documentaries in which Croatian authorities were shown mistreating groups of migrants, among them women and minors, while directing them to the Bosnian territory. This was also confirmed by the Mayor of the Bosnian city of Bihać, Mr. Suhret Fazlic, who claimed he had been confronted with special units of the Croatian authorities in the forests within Bos­ nian territory, forcing migrants to walk. During other occasions, the Mayor had met groups of migrants who had been stripped of their shoes or even all of their clothing, allegedly by the Croatian authorities. Individual migrants face many hurdles to register their testimonies, let alone to file a complaint or go to court. NGOs observed that migrants who wanted to testify about the violence used were referred to local doctors, who appeared reluctant to report injuries as the result of police violence. My meeting with the Deputy Ombudsperson of Croatia corroborated, nota­ bly, the conclusions of the Council of Europe Commissioner for Human Rights concerning increasing (administrative and other) obstacles facing human rights’ defenders and NGOs dealing with migrants in many parts of Europe. For instance, the Ombudspersons’ office had to request advance written requests to consult spe­ cific police records rather than having access to database information without restrictions. Lawyers and NGOs were seeing their access to persons in need of assistance reduced and their presence resented, if not hampered, by the authori­ ties. These restrictions illustrate that it has become more difficult to reach out for migrants in need of help or to monitor border practices. 11.4.5 Situation in Bosnia and Herzegovina Despite the efforts of IOM and UNHCR, the camps in the Una Sana canton of Bosnia and Herzegovina I visited were overcrowded and suffered from very bad circumstances. Conditions in the Bira camp in Bihać were horrifying, accom­ modation was in warehouses but with interior water leaks and lack of sanitary installations. During my visit of the Velika Kladuša camp, I met with a family who had just been returned by the Croatian authorities after being detected on Croatian territory. They explained that they had failed to submit an asylum claim. They appeared exhausted, as they had had to walk a long distance after being dropped by the Croatian police. Several respondents we spoke to on the Bosnian terri­ tory, from where migrants make multiple attempts to cross the Croatian border, emphasised that most migrants aimed to request asylum in Croatia. They explic­ itly challenged the statement of the Croatian authorities that migrants preferred to

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be returned to Bosnia in order to make another attempt to cross into Croatia irreg­ ularly as to avoid Dublin registration, rather than applying for asylum in Croatia. In Bihać, I met with Mayor Mr Suhret Fazlić. He stated that the Croatian police were returning migrants across the border in contradiction to extradition proce­ dures and agreements. There was an 8-km zone into Bosnian territory where Cro­ atian police were authorised to ‘discourage’ people from trying to enter Croatia, but this distance was not respected. The attempts to close the European Union’s eastern border had made the situation in Bosnia and Herzegovina untenable, with thousands of migrants ‘disappearing’ into the region on both sides of the bor­ der but especially the Bosnian side where police patrols were few. As mentioned before, the mayor had witnessed in many occasions that Croatian authorities car­ rying weapons (he presumed they belonged to a special unit within the border police) operated deep into the Bosnian territory while returning migrants. The mayor uttered his criticism on the inhuman character of the actions, but also on the unlawfulness, as they deprived asylum seekers from the right to asylum and they violated the sovereignty of the Republic of Bosnia and Herzegovina. The representative of UNHCR explained that it was almost impossible for migrants to have access to asylum in Bosnia and Herzegovina. There were only a few officials (RSDs) in the whole country tasked with the examination of asylum requests, where according to UNHCR, 25,000 have expressed their intention to seek asylum. As many of the migrants are stuck in the country, it is important to have them registered and to offer them protection and support to build a future. He mentioned several procedural obstacles: an expression of the intention to ask asylum expired after two weeks, but it was very difficult to lodge an asylum claim in time, due to the lack of capacity. The only office to lodge a claim was located in Sarajevo, but migrants who travelled to Sarajevo from North-Bosnia were not allowed to return to the camps in the north due to the limitation of numbers of migrants in each ‘zone’ of Bosnia. Thousands of migrants resided outside the camps, lacking any access to health care, information, legal assistance, or safety. 11.4.6 EU response In a letter of 5 June 2019, the EU Commissioners Avramopoulos and Stylianides responded to an urgent request by a number of Members of the European Parlia­ ment of 2 April 2019 to intervene and stop the pushbacks.26 The Commissioners explained that they were in contact with the Croatian authorities on the allegations and was closely monitoring the situation. According to the Commissioner, the Croatian Ministry of Interior had concluded a Protocol with UNHCR Zagreb and the Croatian Law Centre on monitoring the conduct of police officers in the field of border management, combatting irregular migration and asylum, and ensuring full respect of fundamental rights in all actions. This Protocol complements a monitoring mechanism which aims to ensure that external border controls comply with the EU Charter of Fundamental Rights and Union asylum law. Furthermore, the Commissioners explained that Croatia benefits from financial programmes to bring their asylum and reception system to the level of the EU standards and that

Mechanisms to prevent pushbacks 251 the Commission supported humanitarian partners in Bosnia and Herzegovina to ensure that the EU-funded humanitarian response is aligned with international standards.

11.5 Conclusions This chapter shows that pushback actions and policies in European countries are evidenced in many regions but mainly concentrated at the external borders of the EU and the Schengen area, although not restricted to these areas. Pushback actions and policies present a flagrant denial of a range of human rights of persons seeking asylum in Europe, beginning with the right to access to information, pro­ tection, due process, legal assistance, and legal remedies. By refusing and return­ ing migrants without any individual assessment, states violate their obligation to guarantee access to an asylum procedure, to refrain from refoulement and to grant the right to asylum. Pushback actions can be regarded as an ultimate instrument of deterrence policies, which, unlike other deterrent measures, doesn’t even pre­ tend to comply with international law. The practices are so well documented and reported by authoritative organisations that they have become undeniable. The chapter also reveals the structural character, which implies that the practices do not stem from individual officers disobeying the rules but from a policy designed and organised on a higher level. Despite some landmark judgments of the ECtHR, member states apparently experience impunity. This may partially result from the silence at the EU level, which was, for instance, the case regarding the pushbacks by Spain to Morocco. Commissioner Avramopoulos refused to visit Ceuta and Melilla and stated that the border procedure was in compliance with the Returns Directive and asylum law.27 Even after the judgment N.D and N.T., pressure from the EU level on Spain to comply with this case law remained absent. The recent visits of Commission officials to the Croatian/Bosnian border area following the letter of the Commissioners about the pushback practices there, is encouraging. There is another factor creating the risk of pushbacks. As the EU is highly demanding and supportive towards external border controls, its institutions carry a large responsibility to ensure that increasing border surveillance does not affect the right to asylum and other relevant human rights. Compliance with the right to asylum and other human rights should be a strict criterion for granting and spend­ ing the EU budget on border management. In particular, the Commission has suf­ ficient instruments at its disposal to achieve that. In that context, it should require independent monitoring and complaint procedures, and ensure their effectiveness. The increasing cooperation with third countries seems to trigger pushback poli­ cies as well. Coleman observed that, although the number of formal applications of readmission agreements is relatively low, the existence of those agreements facilitates the establishment and use of informal readmission procedures (Cole­ man 2009, p. 319). These practices function well due to the fallback option of the formal and more bureaucratic procedure, which authorities prefer to avoid. However, informal practices lack any procedural safeguard which could have been invoked by affected individuals if a formal agreement was applied. Putting

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an end to impunity starts with structural, independent, and transparent monitor­ ing at all levels. Taking into account the close relationship between pushbacks and pullbacks, external cooperation with third countries should also be subject to monitoring. Such monitoring would help to prevent migrants getting stuck in a country where access to protection is failing. Effective monitoring also requires the establishment of human rights standards for such cooperation as a basis for an ex-ante evaluation of a cooperation agreement. Monitoring reports would provide a sound basis for interventions by the Commission in cases of possible violations. Any type of border monitoring should allow for unannounced visits to all bor­ der areas, and the findings of border monitoring exercises should be published. Apart from their own monitoring exercises, international organisations and insti­ tutions highly depend on national actors signalling violations. The level of inde­ pendence, the rights of these actors, and their accessibility to the border regions and migrants determine their ability to observe and criticise certain practices. Throughout Europe, however, the negative framing of NGOs by politicians and authorities, sometimes followed by criminalisation, facilitates and legitimises restrictions on their rights and capacities. In this way, shrinking democratic space constitutes an immediate threat to the right to asylum and the rule of law. In many countries national Ombudsmen, who show independence and courage in address­ ing push back actions, play an important role in protecting NGOs. However, as they are in the hands of national parliaments when it comes to their appointment, the actions they undertake may have consequences for their future position. The EU Ombudsman could play a role in protecting the independence of the National Ombudsman. In their Introduction of this book, Carrera and Stefan (2019) observe that NMPs and CPT are more independent than certain EU mechanisms, but the EU Ombudsman, FRA, and the Court of Auditors could fulfil an important role as well, at least in ensuring that effective measures to prevent, monitor, and sanction pushbacks are taken at the EU level. The risk of impunity also stems from the obstacles for victims to hold authori­ ties accountable. Irregular migrants are vulnerable, especially in border regions. As a result of the pushbacks, they are not in the country anymore, which leaves them unaware of the procedural steps to take. Most of the time, they had already lacked information while at the border. The absence of adequate and compre­ hensive information about the asylum procedure makes them vulnerable for poorly trained local border officials. The absence of medical services at the border implies a lack of formal means of testifying to physical violence which may be carried out by border officials, and therefore there can be no proof of the causes of the violence. Authorities often claim that injuries are caused by migrants using violence against one another. Legal assistance is often not accessible due to sev­ eral reasons: the remote places of pushbacks, insufficient capacity and funding of legal aid, and restricted access for legal aid organisations to the relevant spots and asylum seekers. EU policies and funding aiming at strengthening legal assistance would significantly contribute to compliance by member states. Finally, improved relocation is key in reducing the pressure on Europe’s bor­ dering countries, to avoid overcrowding, unnecessary detention, and generally

Mechanisms to prevent pushbacks 253 unacceptable reception conditions for asylum seekers. However, for a structural improvement of the behaviour at the external borders, more solidarity within the Dublin system is needed, through abolishing the principle that the member state of first entry is responsible for the asylum procedure. From the global perspective, the tendency of pushback policies combined with impunity fuels non-admission and pushback policies by third countries as well. This global race to the bottom in order to shift responsibility can only be put to a halt if the international refugee protection system is reinforced. Monitoring and enforcing a serious implementa­ tion of the UN Global Compact on the Refugees may be a vital strategy to regain the spirit of a common responsibility (Aleinikoff & Martin 2018).28

Notes 1 See Article 53 Vienna Convention on the Law of the Treaties. 2 Sharifi and others v. Italy and Greece, Application no. 16643/09 (ECtHR, 21 October

2014). 3 Hirsi Jamaa and others v. Italy, Application no. 27765/09 (ECtHR, 23 February 2012). 4 N.D. and N.T. v. Spain, App nos. 8675/15 and 8697/15 (ECtHR, 3 October 2017). 5 Third-party intervention by the Council of Europe Commissioner for Human Rights at CJEU proceedings concerning cases of N.D. v. Spain (No. 8675/15) and N.T. v. Spain. (No. 8697/15), 22 March 2018, COMDH(2018)11, https://rm.coe.int/ third-party-intervention-n-d-and-n-t-v-spain-by-nils-muiznieks-council/1680796bfc. 6 See ECtHR, M.K. against Poland, Application no. 40503/17, lodged on 8 July 2017 http://hudoc.echr.coe.int/eng?i=001-176229; ECtHR, M.K. and Others against Poland, Application no. 43643/17, lodged on 8 June 2017, http://hudoc.echr.coe.int/eng?i=001176472; ECtHR Application no. 42902/17 M.A. and Others against Poland, lodged on 16 June 2017, http://hudoc.echr.coe.int/eng?i=001-176484; Application no 51246/17, D.A. and Others against Poland, lodged on 20 July 2017 http://hudoc.echr.coe.int/ eng?i=001-177298. 7 See Article 3, Procedures Directive (2013/32) and Article 3, Dublin Regulation (604/2013). 8 See Article 13 SBC. 9 According to HRW, for instance, at the hearing of the Migration Committee of PACE, Strasbourg on 9 April 2019. 10 Parliamentary question by Judith Sargentini (Verts/ALE) to the Commission, E-014710/2015, 21 November 2015, www.europarl.europa.eu/doceo/document/E-8-20 15-014710_EN.html. 11 Regulation 2016/1624/EU, Article 72. 12 Article 108 of new Regulation, repealing Regulation 1052/2013 and Regulation

2016/1624. See the interinstitutional file no. 2018/0330(COD). 13 Article 107a Regulation, Council Document 8354/19. 14 Recommendation CM/Rec(2007)14 of 30 September 2018, HDIM.IO/59/08. 15 J. Sanchez Rodriguez & F. Peregil, ‘More Than 700 Migrants Make Violent Border Crossing into Ceuta’, El País, 27 July 2018, https://elpais.com/elpais/2018/07/26/ inenglish/1532599360_950584.html; see also: ‘1,000 Migrants Storm Border Fence at Spanish Enclave of Ceuta’, 2 January 2017, Euractive, www.euractiv.com/section/ justice-home-affairs/news/1000-migrants-storm-border-fence-at-spanish-enclave­ of-ceuta/. 16 P. Ortega Dolz, ‘Spain Justifies Migrant Pushback in Wake of Large-Scale Jump at Ceuta’, El País, 27 July 2018, https://elpais.com/elpais/2018/07/27/inenglish/1532677497_ 218740.html.

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17 See, for the communication between the Council of Europe and the Greek government, Appendix 2 of the Progress Report on Greece by the Monitoring Committee of PACE, 14 December 2017, Doc. 14450 Part 3 (GR). 18 S. Souli, ‘Unprepared and Overwhelmed: Greece’s Resurgent River Border with Turkey’, The New Humanitarian (formerly IRIN News), 27 September 2018, www. irinnews.org/special-report/2018/09/27/unprepared-and-overwhelmed-greece-s-resur gent-river-border-turkey. 19 See https://data2.unhcr.org/en/situations/mediterranean/location/5179. 20 E. Reidy, ‘An Open Secret: Refugee Pushbacks Across the Turkey-Greece Border’, The New Humanitarian, 8 October 2018, www.irinnews.org/special-report/2018/10/08/ refugee-pushbacks-across-turkey-greece-border-Evros; L. Lee, ‘Evros River: “Forced Pushback” of Refugees at the Edge of EU’, Al Jazeera, 28 January 2018, www. aljazeera.com/news/2018/01/evros-river-forced-pushback-refugees-edge-eu-18012 8105408674.html. 21 J. Wallen, ‘Hungary Is the Worst’: Refugees Become Punch Bag Under PM Viktor Orbán’, Independent UK, Budapest, www.independent.co.uk/news/world/europe/hun gary-refugees-immigration-viktor-orban-racism-border-fence-a8446046.html. 22 Ibid., p. 8. 23 AIDA, ‘Country Report Bulgaria, 2018 Update’, January 2019, www.asylumineurope. org/sites/default/files/report-download/aida_bg_2018update.pdf. 24 Croatian Law Centre, Access to the territory and push backs – Croatia, AIDA & ECRE, www.asylumineurope.org/reports/country/croatia/access-territory-and-push-backs. 25 ‘Council of Europe Urges Croatia to Probe Police Abuse Allegations’, Al Jazeera, 5 Octo­ ber 2018, www.aljazeera.com/news/europe/2018/10/council-europe-urges-croatia­ probe-police-abuse-allegations-181005104405894.html. 26 Letter of Commissioner Avramopoulos and Commissioner Stylianides to Members of the European Parliament, 5 June 2019, Ref. Ares(2019)3619041, 5 June 2019. 27 Reply of the Commissioner to Parliamentary questions on 20 January 2016, E-010830/2015. 28 Resolution 73/151 of the General Assembly of the UN (17 December 2018), Office of the United Nations High Commissioner for Refugees, UN Doc A/RES/73/151; GA12107.

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European Council (2019), ‘European Border and Coast Guard: Council Confirms Agreement on Stronger Mandate’, Press Release of the European Council, 1 April, www.consilium. europa.eu/en/press/press-releases/2019/04/01/european-border-and-coast-guard-council­ confirms-agreement-on-stronger-mandate/. European Ombudsman (2013), Recommendation of the European Ombudsman in His Own Initiative Inquiry OI/5/2012/BEH-MHZ Concerning the European Agency for the Man­ agement of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), November. European Ombudsman (2014), ‘Fundamental Rights and Forced Returns Of Migrants: Ombudsman Opens Investigation’, October, Press Release no. 20. Frenzen, N. (2017), ‘Extraterritorial Refugee Protection’, in A. Nollkaemper & I. Plakoke­ falos (eds.), The Practice of Shared Responsibility in International Law, Cambridge: Cambridge University Press, pp. 506–526. Gammeltoft-Hansen, T. & Hathaway, J. (2015), ‘Non-Refoulement in a World of Coopera­ tive Deterrence’, Columbian Journal of Transnational Law, Vol. 53, pp. 257–260. Gammeltoft-Hansen, T. & Tan, N.F. (2017), ‘The End of the Deterrence Paradigm? Future Directions for Global Refugee Policy’, Journal on Migration and Human Security, Vol. 5, No. 1, pp. 28–56. Gammeltoft-Hansen, T., (2014), ‘The Role of International Refugee Law in Refugee Pol­ icy’, Journal of Refugee Studies, Vol. 27, No. 4, pp. 574–595. Gil-Bazo, M-T. (2006), ‘The Practice of Mediterranean States in the Context of the Euro­ pean Union’s Justice and Home Affairs External Dimension: The Safe Third Country Concept Revisited’, International Journal of Refugee Law, Vol. 18, p. 571–600. Gkliati, M. (2019), ‘The New European Border and Coast Guard: Do Increased Powers Come with Enhanced Accountability?’ EU Law Analysis, 17 April. GLAN (2018), ‘Legal Action Against Italy Over Its Coordination of Libyan Coast Guard Pull-Backs Resulting in Migrant Deaths and Abuse’, 8 May. Goodwin-Gill, G. & McAdam, J. (2007), The Refugee in International Law, Oxford: Oxford University Press. Gortazár Rotaeche, C. & Ferré Trad, N. (2017), ‘A Cold Shower for Spain-Hot Returns from Melilla to Morocco: ND and NT v Spain ECtHR, 3 October 2017’, EU Migration Law Blog, 20 October. Greek Council for Refugees (2018), ‘Reports of Systematic Pushbacks in the Evros Region’, 20 February, www.gcr.gr/en/ekdoseis-media/reports/reports/item/790-reports-ofsystematic-pushbacks-in-the-evros-region. Greek Council for Refugees, ARSIS-Association for the Social Support of Youth & HumanRights360 (2018), ‘The New Normality: Continuous Push-Backs of Third Coun­ try Nationals on the Evros River’, www.gcr.gr/el/news/press-releases-announcements/ item/1028-i-nea-kanonikotita-ston-evro-ameiotes-synexizontai-oi-paranomes-epanap roothiseis-politon-triton-xoron. Hathaway, J.C. (1992), ‘The Emerging Policies of Non-Entree’, Refugees, Vol. 91, pp. 40–41. Human Rights Watch (2018a), ‘Croatia: Migrants Pushed Back to Bosnia and Herzego­ vina’, 11 December. Human Rights Watch (2018b), ‘Greece: Violent Pushbacks at Turkey Border’, 18 Decem­ ber, www.hrw.org/news/2018/12/18/greece-violent-pushbacks-turkey-border. Human Rights Watch (2018c), ‘Spain – Events of 2018 – Part of the EU Chapter’, www. hrw.org/world-report/2019/country-chapters/spain. Human Rights Watch (2018d), ‘Hungary Events of 2018 – Part of the EU Chapter’.

Mechanisms to prevent pushbacks 257 Human Rights Watch (2019), ‘No Escape from Hell: EU Policies Contribute to Abuse of Migrants in Libya’, www.hrw.org/report/2019/01/21/no-escape-hell/eu-policies-con tribute-abuse-migrants-libya. The Hungarian Helsinki Committee (2019), ‘European Court of Human Rights Orders Hungarian Government to Give Food to Detained Migrants in Eighth Emergency Case’, 19 March, www.helsinki.hu/en/echr_eighth_interim_measure_denial_of_food/. Hurwitz, A. (2009), The Collective Responsibility of States to Protect Refugees, Oxford: Oxford University Press. López-Fonseca, O. & Cañas, J.A. (2018), ‘Government Sends 116 Migrants Who Jumped Fence Back to Morocco’, El País, 23 August, https://elpais.com/elpais/2018/08/23/ inenglish/1535032545_735013.html. López-Sala, A. (2019), ‘Keeping Up Appearances: Dubious Legality, Fundamental Rights and Migration Control at the Peripheral Borders of Europe. The Cases of Ceuta and Melilla’, in S. Carrera & M. Stefan (eds.), Human Rights on Complaint Mechanisms and Access to Justice in Detention and Expulsion Policies in the EU, London: Routledge, Chapter 1. Médecins Sans Frontiers (2017), ‘Games of Violence, Unaccompanied Children and Young People Repeatedly Abused by EU Member State Border Authorities’, Summer. Migreurop, FIDH & EMHRN (2014), ‘Frontex Between Greece and Turkey: At the Border of Denial’, July. Ortega Dolz, P. (2018), ‘Spain Justifies Migrant Pushback in Wake of Large-Scale Jump at Ceuta’, El País, 27 July. Pijnenburg, A. (2017), ‘Is ND and NT v Spain the New Hirsi?’ EJIL Talk, 17 October. Pijnenburg, A. (2018), ‘From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg?’ European Journal of Migration and Law, Vol. 20, No. 4, pp. 396–426. Reidy, E. (2018), ‘An Open Secret: Refugee Pushbacks Across the Turkey-Greece Bor­ der’, The New Humanitarian, 8 October, www.irinnews.org/special-report/2018/10/08/ refugee-pushbacks-across-turkey-greece-border-Evros. Sanchez Rodriguez, J. & Peregil, F. (2018), ‘More Than 700 Migrants Make Violent Bor­ der Crossing into Ceuta’, El País, 27 July. Soguel, D. (2018), ‘Are Greek and EU Officials Illegally Deporting Migrants to Tur­ key?’ The Christian Science Monitor, 20 December, www.csmonitor.com/World/ Europe/2018/1221/Are-Greek-and-EU-officials-illegally-deporting-migrants-to-Turkey. Strik, T., (2018), ‘Human Rights Impact of the “External Dimension” of EU Asylum and Migration Policy: Out of Sight, Out of Rights?’ PACE report no. 14575, resolution no. 2228, and recommendation no. 2136, adopted 27 June. Strik, T. (2019), ‘Pushback Policies and Practice in Council of Europe Member States’, PACE doc. 14909, resolution no. 2299, recommendation no. 2161, adopted 28 June 2019. Tóth, J. (2019), ‘Hungary at the Border of Populism and Asylum’, in S. Carrera and M. Stefan (eds.), Human Rights on Complaint Mechanisms and Access to Justice in Deten­ tion and Expulsion Policies in the EU, London: Routledge, Chapter 3. UNHCR (2018), ‘Hungary: UNHCR Dismayed Over Further Border Restrictions and Draft Law Targeting NGOs Working with Asylum-Seekers and Refugees’, Press Release, 16 February, www.unhcr.org/hu/4486-hungary-unhcr-dismayed-border-restrictions-draftlaw-targeting-ngos-working-asylum-seekers-refugees.html. UNHCR (2019), ‘Hungary’s Coerced Removal of Afghan Families Deeply Shocking’, www.unhcr.org/news/press/2019/5/5cd3167a4/hungarys-coerced-removal-afghan-fam ilies-deeply-shocking.html.

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Vedsted-Hansen, J. (1999), ‘Non-admission Policies and the Right to Protection: Refugees’ Choice vs. States’ Exclusion?’ In F. Nicholson and P. Twomey (eds.), Refugee Rights and Realities: Evolving International Concepts and Regimes, Cambridge: Cambridge University Press. Wallace, R. (2014), ‘The Principle of Non-Refoulement in International Refugee Law’, in V. Chetail & C. Bauloz (red.), Research Handbook on International Law and Migration, Cheltenham: Edward Elgar, pp. 417–438. Wallen, J. (2018), ‘Hungary Is the Worst: Refugees Become Punch Bag Under PM Viktor Orbán’, Independent, 13 July, Budapest, www.independent.co.uk/news/world/europe/ hungary-refugees-immigration-viktor-orban-racism-border-fence-a8446046.html.

12 Human rights complaints at international borders or during expulsion procedures International, European, and EU

standards

Sergio Carrera and Marco Stefan 12.1 Introduction Border controls, border surveillance operations, and expulsion procedures through return flights pose largely documented risks and dilemmas to the human rights of migrants and asylum seekers.1 The chapters in this book attempted to clarify the extent to which the possibility to complaint and obtain remedies for human rights violations suffered by different categories of third-country nationals and people on the move is ensured across different European countries which are State Par­ ties of the Council of Europe and members of the EU. This concluding chapter complements such analytical effort and further delves into the examination of whether the extrajudicial complaint mechanisms in place in such countries can be considered effective. Particular attention is paid to the effectiveness of complaint mechanisms of administrative nature available against human rights violations that might occur throughout the performance of border management activities2 and in the implementation of joint return operations by air.3 Quasi-judicial reme­ dial bodies have an important role to play in redressing the fundamental rights abuses that arise from the implementation of border and migration management policies, also considering the lengthy procedures and high costs traditionally asso­ ciated with the undertaking of judicial remedies. The chapter retraces the effective remedies and protection standards provided by the ECHR, the EU legal system, and other relevant international human rights instruments, and identifies the main typologies of internal and external account­ ability bodies and institutions existing in the different countries covered by this book. Special focus is on the features of the complaint mechanism estab­ lished under Regulation (EU) 2019/1896 of 13 November 2019, which governs the activities of the European Border and Coast Guard (Frontex).4 The analysis pinpoints the structural and functional shortcomings of the Frontex complaint mechanism and highlights the protection gaps deriving from the differences in the accountability and oversight regimes to which the various law enforcement and security actors currently participating in joint border control, border surveillance, and expulsion operations are subject to in Europe.

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We subsequently proceed with a qualitative assessment of the existing over­ sight bodies and available instruments in order to verify whether they actually qualify as ‘effective complaint mechanisms.’ We do so by verifying their cur­ rent role in receiving, investigating, and redressing human rights violations in the context of border control, border surveillance, and joint return operations. Our examination also pinpoints a series of practical, legal, and procedural chal­ lenges currently affecting the possibility to lodge complaints and access effective remedies for human rights violations by law enforcement authorities and other security actors and professionals operating at land, air, and sea borders, or in the context of expulsions operations, particularly joint return flights. Finally, we iden­ tify a set of practical solutions that could increase the human rights accountability regimes of authorities involved in border and migration management activities. Particular attention is paid to the need of improving access to the effective judicial and non-judicial remedies that, according to the ECHR, EU law, and UN human rights treaties, should be made available to the different categories of individuals affected by border and immigration management policies in Europe.

12.2 Effective complaint mechanisms in light of regional and international human rights standards 12.2.1 The scope and nature of human rights protection in border management and expulsion operations under the ECHR All the CoE State Parties are subject to the obligation to guarantee the set of rights and liberties enshrined in the ECHR when controlling the entry, residence, and expulsion of aliens. The fundamental rights that the ECHR recognises for third-country nationals include, inter alia, the right not to be deprived of life,5 the right not to suffer ill-treatment amounting to torture,6 and the right not to be unlawfully deprived of liberty.7 Migrants and asylum seekers are entitled to an effective protection of these rights and freedoms when they enter into contact with a State Party’s authorities, regardless of whether the executive action of the latter takes place within or outside the national territory (e.g. in international waters).8 In accordance with settled European Court of Human Rights (ECtHR) case law, this also includes third-country nationals or stateless persons who, being under the effective control of a CoE contracting party, are entitled to receive protection under the ECHR.9 Responsibility to comply with these human rights therefore extends beyond the borders of CoE countries. The applicability of the ECHR is contingent on Article 1 of the ECHR, which states that ‘the High Contracting Parties shall secure to eve­ ryone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ On a number of occasions, the ECtHR has interpreted this provision to include certain instances of extraterritorial exercise of jurisdiction, which sub­ sists where the country concerned exercises effective control of an area outside its national territory.10 In the ruling of Hirsi Jamaa and other v. Italy, the ECtHR held that – in the context of the ‘pushback operations’ to Libya by Italian armed

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forces – Italy had assumed both continuous and exclusive de jure and de facto control over the applicants.11 The Strasbourg Court clearly established that practices of CoE countries’ authorities such as transferring a occupants of a migrant boat to an intercepting patrol ship place the affected individual within the effective control of the relevant state (Frenzen 2017). More recently, the ECtHR has confirmed its Hirsi doctrine of de jure and de facto control in respect of extraterritorial jurisdiction in N.D. and N.T. v. Spain.12 In the latter case, the Stras­ bourg Court restated that the obligation of Spanish authorities to ensure ECHR standards derives from the effective control exercised over the third-country nationals who trespass the fence built between Morocco and Spain, and does not depend on questions of territoriality (i.e. irrespective of whether the border fence is located in Spanish or Moroccan territory). If a human rights violation occurs in a situation falling under such circum­ stances (and several chapters in this volume show that they do), the individuals concerned should be granted an effective right of complaint and seek administra­ tive and judicial remedies before the competent authorities. In fact, by ratifying the ECHR, CoE State Parties have willingly committed to respect and safeguard specific human rights obligations which are both substantial and procedural in nature. Substantive obligations entail the adoption and implementation of rules of conduct directed at ensuring that the States’ authorities fully respect relevant standards regarding fundamental human rights protection in the performance of their border and migration management tasks. The ECtHR has stated that the ‘higher authorities’ of the Contracting States are under the duty to require their subordinates – including law enforcement authorities and the police – to com­ ply with the Convention and in particular, to ensure the substance of the rights embodied in Articles 2 and 3.13 Article 13 of the ECHR, in turn, grants the right to an effective remedy to everyone who claims that his or her rights and freedoms under the Convention have been violated.14 The remedy must not necessarily be of a judicial nature to effectively redress a substantial breach of human rights. In fact, the Strasbourg Court has established that the effectiveness of the protection provided under the CoE State Parties’ institutional and legal system also depends on the specific pow­ ers and procedural guarantees offered by alternative (i.e. administrative) remedies (Shelton 2014). These administrative remedies are complementary and supple­ mentary to the judicial remedies that must be still ensured at the national level, especially when the misconduct by border officials constitutes a crime and may lead to criminal liability. Article 13 of the ECHR also gives effect to the princi­ ple of subsidiarity, namely, by requiring that proper domestic remedies are made available to individuals before they have to take recourse to the ECtHR. Procedural obligations, therefore, involve the design and development of over­ sight mechanisms directed at delivering those standards in practice. State Parties are under a positive obligation to establish dedicated mechanisms for lodging administrative as well as judicial complaints through which a non-national may claim – before a national authority and according to national law – that a decision

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taken in the context of border check or border surveillance, or in the framework of an expulsion operation allegedly violates a Convention right, for instance, Article 2, 3, or 8 of the ECHR (Lambert 2007). The establishment of oversight mecha­ nisms responsible for receiving and handling complaints is in particular required to ensure that – in addition to access to justice and effective judicial protection – effective administrative remedies are provided when existing human rights obli­ gations are not complied with in the context of border control procedures, border surveillance practices, and expulsion operations 12.2.2   The role and features of effective complaint mechanisms in  light of the ECHR and COE standards 12.2.2.1 Effective complaint mechanisms in light of the case law of the European Court of Human Rights A set of standards or criteria have been progressively elaborated at the CoE level to clarify the features that ‘complaint instruments’ or ‘mechanisms’ should possess in order to address effectively allegations of human rights violations and miscon­ duct/violence by border guards and other relevant law enforcement authorities in the scope of migration management activities and return operations. The ECtHR has in particular helped in specifying the features that a remedy must possess in order to be considered effective in the meaning of the Convention. First, a remedy must exist institutionally and have the authority to ensure the effectiveness of the remedy in practice. Oversight bodies, even of an administra­ tive nature (e.g. an Ombudsperson), have such authority when they are empowered to conduct an effective investigation based, where necessary, on examinations by medical professionals into the allegations made by the complainant.15 Second, the remedy has to be adequate, allowing the competent national authority not only to deal with the substance of the complaint but also to grant appropriate relief. This entails an assessment of the risks of human rights violations faced by the third-country national with reference to the facts which were known or ought to be known to the state (for instance, at the time of expulsion). In order to be adequate, the scrutiny of a complaint received by a national authority must also be close, independent, and rigorous,16 and ensured without regard to what the person may have done, for instance, to warrant expulsion or any perceived threat to the national security of the expelling state.17 Third, the remedy must be available, prompt, accessible, and not hindered by the acts of the state authorities.18 Prompt­ ness of the proceedings for the assessment of the complaint should, however, not prevail over the effectiveness of the remedy. The ECtHR found that accelerated proceedings may lead to a superficial examination of the applicant’s claim and deprive him or her of a fair and reasonable opportunity to challenge a decision.19 With specific regard to Article 2 of the ECHR, the Strasbourg Court has clarified that in order to provide an effective remedy against a decision which allegedly violates the non-refoulement principle, a complaint mechanism must not only be

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available in practice, provide for independent and rigorous scrutiny, and prompt response20 but must also have an automatic suspensive effect.21 The ECtHR also stressed that a duty exists for the state’s oversight authorities to effectively investigate allegations of serious ill-treatment committed by a state agent against aliens. According to the Strasbourg Court, this duty entails ‘an obli­ gation to provide a complete and sufficient explanation as to how the injuries were caused.’22 The duty of states to conduct thorough investigations for ill-treatment of aliens also extends to cases of alleged violations by private individuals.23 When complaints brought against immigration law enforcement authorities engage responsibilities under Article 2 or 3 of the ECHR, investigations must meet spe­ cific standards. In the first place, they need to be independent and impartial, and they must exclude institutional or hierarchical connections between the inves­ tigators and the officer subject of the complaint.24 They must also be thorough, allowing for the gathering of evidence through which the facts of the case and the identification and sanctioning of those responsible are made possible.25 The hearing of the officer as a suspect and the critical analysis of his or her statements are also a requirement to be satisfied in order to ensure effective investigations.26 Furthermore, investigations must be prompt and ensure the initial protection of potential evidence27 so as to prevent risks of evidence loss through delay28 and to maintain confidence in the rule of law.29 A certain degree of publicity, openness, and transparency is also required to enable participation of the complainant in the complaints process and allow him or her to effectively safeguard his or her legitimate interests. As for the safeguards relating to the expulsion of aliens (primarily regulated by Article 1 of Protocol No. 7 to the ECHR),30 the ECtHR has applied Article 13 in conjunction with other provisions of the Convention in order to clarify the type of remedies that must be made available by State Parties. For instance, it has stated that where there is an arguable claim that such an expulsion may infringe the for­ eigner’s right to respect for family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of ‘challenging the deportation order’ and of having the issues ‘examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality.’31

12.2.2.2 The CPT’s recommendations on effective complaints mechanisms The European Committee for the Prevention of Torture (CPT) has also provided important guidance as to the role that complaint mechanisms should play, espe­ cially in the context of migration detention and deprivation of liberty. In a report

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published following a visit to Italy’s ‘hotspots’ and immigration detention centres, the CPT for instance made clear that the establishment of ‘effective complaint pro­ cedures,’ as well as the setting-up of ‘central incidents registers’ constitute ‘basic safeguards against ill-treatment,’ in places where foreign nationals are deprived of liberty. The CPT stressed that formal complaint mechanisms, whether internal or through an ‘independent outside body,’ are required to both prevent and verify allegations of physical ill-treatment by custodial staff in places of immigration detentions. The CPT recommended that detained persons should have ‘avenues open to them, both internally and externally, and be entitled to confidential access to an appropriate complaints authority.’32 With regard to the safeguard to be ensured during joint removal operations, and more specifically in the context of the deportation of foreign nationals by air, the CPT reinstated the importance that effective complaint procedures be ‘set up to allow for any complaints from detainees about their treatment by law enforcement officers.’33 The CPT has specified that, in order to qualify as ‘acces­ sible in practice,’ such procedures must give returnees the possibility to file a complaint ‘either immediately upon arrival or on board the plane prior to arrival.’ In addition, it was confirmed that the external procedure should ‘meet the require­ ments of independence’ and ‘offer guarantees that complaints will be dealt with effectively, expediently and thoroughly.’34 These are the necessary requirements, which according to the CPT, would allow a system of complaint mechanisms to effectively determine responsibilities, sanction those responsible, and prevent human rights violations in the context of joint removal operations. 12.2.3  Effective    remedies, right to good administration,  and their portability under EU law In the EU legal system, a guarantee corresponding to Article 13 of the ECHR is provided under Article 47 of the EU Charter of Fundamental Rights (EU Charter). This last provision expressly grants the right to an effective remedy to any person whose rights and freedoms protected under EU law have been violated, including in the context of border checks and return procedures. Article 47 of the EU Char­ ter imposes that the right to an effective remedy must be granted by ‘a tribunal’ (Shelton 2014, p. 1210). The CJEU has specified that in cases of mistreatment suf­ fered at the hands of national border guards, an effective remedy in the meaning of EU Charter Article 47 cannot be granted if complaints are only allowed before the same authority responsible for conducting checks at the EU borders, and when the decision undertaken by the latter with regard to the complaint is not subject to appeal. The Court also clarified that appeals against refusal of entry also include a right to challenge the way in which border checks are conducted.35 EU primary law additionally requires administrative rights – and in particular the right to good administration (Article 41 of the Charter) – to be respected. The fundamental right to good administration constitutes a general principle applying to EU and member states’ authorities responsible for the implementation of EU law. It inter alia requires that human rights considerations are respected and taken

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appropriately into account by actors responsible for implementing border control, border surveillance, and/or return operation, including EU Agencies like Frontex and EASO. Article 41 entails a right for third-country nationals to be heard before any individual measure that would affect him or her adversely is taken, but also to obtain rectification of the wrong suffered, and have any damage caused by the EU institutions or their servants in the performance of their duties made good, in accordance with the general principles common to the laws of the member states. Being entrusted with the mandate to conduct inquiries into cases of maladminis­ tration by EU institutions, bodies, offices, and agencies,36 the European Ombuds­ man has an important role to play when it comes to monitoring and ensuring the respect of fundamental rights of migrants who are subject to forced returns to their countries of origin.37 EU secondary legislation provides further indications regarding the charac­ teristics of bodies responsible for handling complaints and the type of remedies they should grant against decisions undertaken in the context of border manage­ ment and expulsions. Article 14(3) of the Schengen Borders Code (SBC) grants third-country nationals the possibility to appeal against a border guard’s decision refusing entry in accordance to national law.38 Such provision does not expressly require complaints against such decisions to have a suspensive effect. It neither specifies whether the complaint must satisfy any particular fair trial or effective remedy standards, and no express requirement is foreseen in relation to the inde­ pendence of the authority competent to receive the complaint. Yet the very pos­ sibility to effectively challenge and obtain remedies against decisions, actions, or inactions adopted by EU and member state authorities in the scope of the SBC would be rendered null in the absence of independent and fair complaint mecha­ nisms. European cooperation on migration management and border controls is in fact based on a general assumption that member states do count with these effective complaint mechanisms and systems of accountability in their domestic arenas. With regard to third-country nationals who are refused entry and consequently become subject to a return decision or an entry ban pursuant to the Returns Direc­ tive,39 EU law provides that an ‘effective remedy’ must be allowed before a ‘com­ petent judicial or administrative body composed of members who are impartial and who enjoy safeguards of independence.’40 Third-country nationals who are either refused entry or not entitled to stay within the territory of a member state, and who are detained for the purpose of their return, also have the right to be informed immediately about the possibility to engage proceedings by means of which the lawfulness of the detention can be subject to a prompt and speedy judi­ cial review (article 15(2) of the Returns Directive). As for the portability of human rights under EU law, the Luxembourg Court confirmed that EU countries must provide appropriate legal remedies for infringe­ ment of fundamental rights when a border management or immigration enforce­ ment measure or decision falls within the scope of EU law.41 Acts or omissions of police authorities, border guards, and immigration officials undertaken in the context of border control and surveillance activities, at the time of adoption of an

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entry decision, or during the implementation of a return process shall therefore be subject to the EU standards on effective oversight and remedies, which applies regardless of where the acts or omissions take place, and even when they are not directly related or necessary for the adoption of the entry or return decision. 12.2.3.1 Effective complaint mechanisms in light of the UN human rights treaty bodies and the Paris Principles on National Human Rights Institutions Specialised institutions within the United Nations (UN) system have also con­ tributed to clarify what are the specific features that complaint mechanisms in the context of immigration detention, expulsion operations, and removal procedures, including joint return flights should present in order to qualify as effective under international human rights law. Among the additional features that UN human rights treaty bodies have recognised as essential for the effectiveness of these complaint mechanisms, there a few of particular relevance: first, access to infor­ mation (detainees ought to be informed of complaint procedures and understand how to access them);42 second, procedural clarity and fairness; and third, respect for privacy and confidentiality.43 When addressing their complaints, returnees should also be free from intimidation and reprisals, meaning that attempts to pre­ vent complaints should not be tolerated.44 In many European countries, the delivery of this type of administrative protec­ tion is entrusted upon Ombudspersons and National Human Right Institutions (NHRIs), which are responsible for handling cases of mistreatment or unlaw­ ful behaviour from public authorities and often act on grounds that also cover violations of rights, including human rights (Reif 2004). The status and models of functioning national institutions for the protection and promotion of human rights are described in UN Paris Principles, compliance with which has been indicated by organisations including the Council of Europe45 as well as the EU Agency for Fundamental Rights (FRA) as an important indicator for evaluating the effectiveness of human rights institutions.46 A key feature for a NHRI to be compliant with the UN Paris Principles is its independence from the government. In addition, the body or institution must be characterised by regular and effective functioning, and have adequate powers of investigation and the capacity to hear complaints and transmit them to the competent authorities. In operative terms, it is also required that, in their work, national institutions develop relations with the nongovernmental organisations devoted to promoting and protecting human rights of particularly vulnerable groups (including third-country workers and refugees). The fulfilment of the minimum core criteria provided by the UN Paris Principles is assessed on a case-by-case basis by the Global Alliance of National Human Rights Institutions (GANHRI).47 Compliance with the Paris Principles is also assessed on the basis of an NHRI’s role in national contexts where demo­ cratic protections in the country are under threat, and in light of their actual con­ tribution to protect and promote the human rights of all persons, especially those most affected by states’ conduct.48

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12.3 Border and migration management actors, oversight bodies, and protection gaps 12.3.1 Multi-actorness and fragmentation of human rights accountability regimes The analysis of EU, regional, and international human rights law on effective remedies has shown that, in order to be effective, a complaint mechanism needs to: i) offer a form of administrative protection which is supplementary to the judicial remedies that must still be made available at the domestic and suprana­ tional level,49 and ii) be equipped with statutory powers and procedural guarantees capable of practically delivering third-country nationals a sufficient level of pro­ tection against abuses. Despite the extensive normative and jurisprudential guid­ ance regarding features and circumstances that allow oversight bodies to deliver effective remedies against fundamental rights violations, the chapters in this book demonstrate that ensuring access to effective remedies for abuses occurring in the field of border management and returns remains complicated in practice Human rights protection gaps derive, in the first place, from the multiplicity and blurring of mandates and operational roles of different border and migration management professionals who are subject to different domestic and suprana­ tional accountability regimes. The chapters in this book show how the governance of border management and immigration control systems currently depends on the work and interactions of many formal (military, police, gendarmerie, intelligence, border guards) and informal (private actors, international organisations) security actors. A large variety of authorities contributes, to different extents and in diverse operational contexts, to performing border checks, the surveillance of land and sea borders, and expulsion operations (Carrera & Stefan 2018). The institutional land­ scape appears particularly complex in some countries. In Italy, for instance, sea border patrols are carried out by five different authorities: Border Police, Tax and Customs Police, Carabinieri, Coast Guard, and the Navy. Another case in point is Greece, where border surveillance at sea falls under the shared responsibility of the Hellenic Coast Guard and the Hellenic Navy. As Drakopoulou, Kostantinou, and Koros note, multi-actors and agency cooperation in the conduct of illegal pushback operations at sea borders make identification of those responsible for abuses more difficult in practice. In some countries, executive functions related to border control, border surveillance, or expulsions are performed by agents affili­ ated to one law enforcement agency acting under the control of different minis­ tries. This is the case of the Guardia Civil in Spain, for example. As for expulsion procedures, their implementation not only relies on the coordination of different immigration and law enforcement authorities operating at the national and local level but also entails the involvement of support staff, including international organisation officials (e.g. IOM), private escorts, and medical personnel. All these authorities remain, in principle, equally subject to ordinary rules on civil and criminal liability for acts committed in violation of individual rights. However, as Campesi notes, the rules that regulate the statuses of different security players

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taking part in border and migration management activities, and their specific hier­ archical relations with superiors, significantly condition the margin of apprecia­ tion that each of these security actors have in assessing the potential human rights consequences of the orders received and the actual capacity they have to question their legitimacy. A result, the overall capacity of the different national systems to prevent and redress the potential misconduct and abuses of powers, for instance, through the activation of internal and internal complaint procedures by the very actors conducting the border practices, becomes fragmented. Joint border management activities, such as those coordinated by Fron­ tex or implemented under Common Defence and Security Policy (CDSP) ini­ tiatives such as Operation EUNAVFOR MED Sophia, make the actorness picture ever more complex and bring about a further blurring of who does what and under whose scrutiny (Vitiello 2018, pp. 135–136). This variety of law enforcement authorities, security actors, and defence actors perform their function under different accountability regimes. For example, only authori­ ties deployed in EBCG’s Frontex sea operations such as Triton, Poseidon Sea, Hera, Indalo, and Minerva participate in the implementation of the Schengen acquis, and remain subject to the legal obligations and scrutiny systems foreseen therein.50 The same accountability system does not apply to the defence actors involved in Operation EUNAVFOR MED Sophia, which are subject to a legal and policy framework on the protection and respect for human rights which is less stringent when compared the one applicable to Frontex. Further challenges arise from the ever-prominent operational involvement of authorities from third (non-CoE and non-EU) countries in border control and border surveillance activ­ ities directed at preventing irregular border crossings of migrants and asylum seekers, as well as in conducting expulsion operations.51 The exact role and actual responsibilities of foreign authorities acting de facto as EU external border agents remain to a large extent unclear. This is also due to the fact that their missions are often covered by ‘soft law’ instruments, such as Council Decisions, declarations, working agreements, memoranda of understanding, and technical arrangements which substantially escape both democratic and judicial scrutiny (Carrera, Den Hertog & Stefan 2017). From the perspective of third-country nationals who might be victim of abuses, the multiplication of border and immigration management-related actors translates into a difficulty in identifying clearly which bodies, institutions, and mechanisms are responsible for overseeing their actions and activities. The multiplicity of dif­ ferent authorities taking part in border control and border surveillance-related and migration management activities does not constitute a factor of impunity per se. It becomes so in the presence of legal, institutional, and practical limitations faced by victims of human rights abuses in counting on oversight systems and com­ plaint mechanisms capable of holding those responsible for the exercise of execu­ tive powers. Articulation of competences and the existence of adequate checks to ensure that standards follow the implementation of border and immigration law, policies, and practices becomes therefore crucial.

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12.3.2 Existing oversight systems responsible for receiving human rights complaints 12.3.2.1 The role and limitations of internal complaint mechanisms When it comes to the accountability of law enforcement authorities and the wide range of security actors performing border control, border surveillance, and/or expulsion operations, a first level of control is exercised by the internal oversight bodies. In the field of Security Sector Reform (SSR), it is often argued that internal oversight mechanisms constitute an integral part of the ‘conglomerate of pro­ cesses’ through which security actors can be held accountable for fundamental rights violations.52 Internal accountability relies in particular on an ‘internal chain of command’ that traditionally includes both a systematic reporting system and a functioning disciplinary system. These internal mechanisms allow colleagues to report abuses deriving from cases of misconduct or disapplication of orders, and in some instance, they might also be used by affected individuals to lodge complaints before oversight bodies or supervisors within the force. They can thus contribute to monitoring and improving human rights standards in the implemen­ tation of the executive powers of these agencies.53 Mechanisms of this type are established, for instance, in Austria, where the Federal States’ Security Police Directorates are competent to receive complaints against abuses committed by the Austrian National Border Police in the context of border control and apprehen­ sion procedures.54 Other examples of internal oversight systems and ‘complaint mechanisms’ established within law enforcement organisations responsible for border control, border surveillance, and expulsion operations include the audit body established within the Hellenic Police, as well as the Unit for Complaints, Applications and Administrative Control Department established at the Polish Border Guard headquarters. The effectiveness of internal oversight systems is inherently affected by a number of limitations that prevent these accountability bodies from meeting the protection standards required under EU law and other relevant international and regional human rights instruments. First and foremost, they fall short of ensuring the level of institutional independence that is necessary to thoroughly assess human rights allegations. As ‘internal discipline, hierarchy, as well as the collegial loyalty’ constitute typical features of law enforcement and security organisations (den Boer & Fernhout 2008), the integrity and accountability of agents within police and defence forces cannot depend solely on internal over­ sight systems and complaint mechanisms. If the above observation applies to the so-called security sector in general, specific challenges and limitations further undermine the effectiveness of internal complaint mechanisms when it comes to human rights abuses that might occur during the performance of border control, border surveillance, and/or expulsion-related tasks. In fact, these activities are often implemented in ‘out-of-sight’ operative contexts (e.g. border surveillance

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operations at sea). In addition, operators from the private sector (e.g. escorts and medical staff involved in forced return flights) as well as community-based militias (e.g. the so-called ‘border hunters’ in Hungary) have been progressively co-opted into border-management and policing work. The attention that has been given to standard-setting and accountability regimes for actions by the police in general has not been paid to the diversity of actors performing border controls/ surveillance functions. These elements further hamper the role and potential of traditional internal police accountability mechanisms in preventing abuses and redressing complaints concerning human rights violations that might occur at the hands of the different actors involved in border control, border surveillance, or returns operations. Internal oversight mechanisms therefore fall short of ensuring the right level of protection required under regional human rights instruments, including the ECHR and CPT, as well as EU primary law (the EU Charter) and secondary legislation (including the SBC and the Returns Directive). Beside independ­ ence, they lack other essential features such as adequacy and availability, which instruments of redress must possess in order to qualify as ‘effective complaint mechanisms.’ Internal accountability bodies and complaint mechanisms prove to be particularly ineffective when the commitment of human rights abuses occurs as a direct consequence of specific instructions given to border guards or police forces by their superiors. Recently, a policeman working for the Croatian Border Police filed an anonymous complaint before the Croatian Ombudsman claiming (also in the name of his colleagues) that they received orders from higher-ranking officials which mandated them to execute ‘illegal pushbacks.’ The orders included instructions to ‘return everyone without papers, to leave no traces, to take money, break mobile phones’ and ‘forcefully return refugees to Bosnia.’55 Croatian Law on Police Affairs and Powers expressly establishes that a police officer must refuse to execute an order that clearly constitutes a criminal offense, and requires him or her to report such situations to a sen­ ior superior.56 However, in the complaint (which describes the practices fol­ lowed by the border authorities and corroborates evidence given by reports from civil society organisations conducting independent monitoring at the CroatianBosnian border), the police officer stated that he and his colleagues executed the pushback operations according to the instructions because they feared that their refusal to do so would have likely resulted in a job loss. As Strik documents clearly in her chapter, pushbacks at the Croatian border with Bosnia constitute the result of a purposely designed strategy adopted by the Croatian government to comply with Schengen rules on refusing entry to irregular migrants. The use of violence in the execution of such operations has been publicly endorsed by Croatian authorities at the highest level.57 In the follow-up to the letter received by the police officer, the Croatian Ombudsman noted that filing an anonymous complaint to her office was the only way the policemen had at their disposal to challenge the legality of the pushbacks without fearing a reprisal from their colleagues.58

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12.3.2.2 Frontex human rights oversight: a case study of a substandard complaint mechanism The manifold limitations that affect the capacity of internal oversight systems to effectively handle human rights complaints related to abuses committed in the contexts of border and expulsion procedures emerge when analysing the mecha­ nism established under the EBCG Regulation. This mechanism is supposed to grant migrants and asylum seekers the possibility to lodge individual complaints about fundamental rights violations committed by staff involved in Frontex activities.59 However, the way in which this mechanism is currently organised raises serious doubts as to its compatibility with existing CoE, EU, and international standards on effective complaint mechanisms. An overall lack of independence, adequacy, accessibility, openness, and transparency affects the effectiveness of the Frontex complaint mechanism, and with it, the possibility to deliver effec­ tive remedies against fundamental rights abuses committed at the hands of the different actors responsible for the performance of border control, surveillance, and return operations. In the first place, the Frontex complaint procedure is not independent, since it largely relies on the discretionary power of internal oversight bodies. The respon­ sibility for handling different phases/aspects of the complaints received by the agency is entrusted to the Fundamental Rights Officer (FRO), but doubts persists as to the real capacity of the agency to act in ways that might not always be in its direct interest. The FRO remains an ordinary Frontex employee required to report to the Frontex Management Board,60 and in the framework of the procedure estab­ lished under Article 111 of the 2019 EBCG Regulation, to the Executive Director of the agency. The lack of independence in the Frontex complaint procedure is especially evident when it comes to fundamental right allegations concerning a staff member of the agency. When considered admissible by the FRO, these com­ plaints are then subjected to the scrutiny of the Executive Director,61 who has the power to conduct appropriate investigations, ensure follow-up and take decisions – with no guarantee of impartiality or transparency. This shortcoming becomes most significant when considering that the Executive Director has been entrusted with the exclusive responsibility to suspend a Frontex operation following provision by the Consultative Forum of evidence about fundamental human rights violations in specific member state border control, surveillance, and expulsion activities.62 Secondly, the Regulation fails to specify the nature of an ‘appropriate followup’ in case of complaint received by the agency. No clear indication is provided with regard to the concrete actions or measures that the FRO can undertake, for instance, to prompt and ensure thorough investigations into the complaints. The FRO might only recommend ‘appropriate follow up’ of ‘referral for the initiation of civil or criminal justice proceedings’ in accordance with the EBCG Regula­ tion and applicable national law.63 There is furthermore a lack of clarity as to the national institution required and competent to conduct investigations and pro­ vide remedies for human rights complaints received by Frontex and concerning

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the members of national teams participating in the agency’s operational activi­ ties.64 The extent to which national human rights institutions are involved in the assessment of the complaints is particularly uncertain. The EBCG Regulation only requires the FRO to ‘inform’ these authorities (when they exist) of the ongo­ ing procedure. The EBCG Regulation now foresees that where a member of the teams is found to have violated fundamental rights or international protection obligations, the Agency ‘shall request that the Member State remove that mem­ ber immediately from the activity of the Agency or the standing corps’.65 There is however no express mechanism in place to guarantee the actual removal (at least from the ‘standing corps’) of the subject found guilty of fundamental rights violation. Thirdly, the adequacy of the Frontex complaint mechanism is limited by the fact that this procedure only covers cases of human rights infringements commit­ ted by authorities performing border control, border surveillance, or expulsionrelated tasks in the framework of the agency’s activity. However, EU member states conduct parallel border surveillance activities which, while still falling within the scope of the SBC and subject to the EU Charter, take place outside the remit of Frontex operations. The way in which Frontex’s complaint mechanism is designed also casts doubts as to its capacity to adequately address human rights violations ensuing from border management operations which do not involve the physical participation of Frontex and/or member state agents. As noted by Carrera and Cortinovis in their chapter in this book, pullback operations of migrants at sea are increasingly enabled by the sharing of information which is collected by Frontex, passed on to responsible member states’ rescue coordination centres (e.g. the MRCC in Rome), and then used to assist or direct third countries’ authorities (e.g. Libya’s coast guards) so they can perform interceptions and return appre­ hended individuals to unsafe places. At no point in time do the migrants and asy­ lum seekers actually enter into contact with officials formally involved in Frontex naval operations, which have in fact progressively disengaged from patrolling the Mediterranean. Previous research has shown how Frontex and/or member state missions that can conduct rescues in the Central Mediterranean have progres­ sively been abandoned (Carrera & Cortinovis 2019). Such a strategy of active disengagement, coupled with the increasing recourse to automated border surveil­ lance systems (e.g. EUROSUR) and the deployment of remote border patrolling devices (including drones), effectively diminishes the practical usability of the Frontex complaint mechanisms. These strategies of ‘contactless’ border surveil­ lance and externalised border control blur operational responsibilities and seem to be ultimately designed to allow EU and member states to escape legal respon­ sibilities for acts materially conducted by third countries outside formal Frontex operations. However, the same level of fundamental rights accountability should be ensured in all cases where EU and/or member state authorities act within the scope of EU law, and regardless of whether a direct physical contact has been established with the victims of human rights violations. The way in which the Frontex complaint mechanism is designed constitutes not only a departure from existing EU and international standards on effective

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remedies but also stands at odds with the recommendations formulated by the European Ombudsman in its self-initiated inquiry concerning Frontex.66 The European Ombudsman’s inquiry highlighted that, in order to avoid ‘large mar­ gins of discretion,’67 Frontex complaint procedures should secure some degree of transparency, availability, openness, and accessibility. However, several of the current Frontex complaint mechanism’s features reflect concerning deficiencies with regard to these crucial requirements. For instance, complaints cannot be lodged anonymously.68 The choice of making anonymous complaints inadmissi­ ble can be explained in light of the objective of avoiding abuses of the procedure. Nevertheless, this restriction might hamper the overall accessibility of the proce­ dure, and most notably hinder its availability to victims of human rights who are in a situation of irregularity.69 The requirement to submit complaints in writing also constitutes a limitation, as it prevents the possibility of activating the com­ plaint procedure directly when the fundamental right abuse actually takes place.70 The fact that only individual complaints are allowed71 expressly contradicts the requirement to make the complaint mechanism available to all stakeholders with a legitimate interest to activate a procedure. In the view of the Ombudsman, allow­ ing the submission of so-called ‘public interest complaints’ could aid the agency – and, in particular, the Fundamental Rights Officer (FRO) – in its duty to consider infringements of fundamental rights in all Frontex activities. An open complaint mechanism would also complement the system of incident reporting from Frontex staff and guest officers, and integrate the overall set of ‘in-house instruments’ in place to monitor compliance with human rights standards applying to Frontex activities.72 The European Ombudsman, in particular, stressed that reporting and complaint mechanisms are not alternatives but mutually reinforce each other in guaranteeing the effective protection of fundamental rights.73 Practice shows that in the absence of functional interlinks between effective monitoring and com­ plaints mechanisms, even well-documented cases of abuses might end up with impunity. National oversight bodies as well as the Frontex Consultative Forum have repeatedly denounced how their accounts of fundamental rights incidents occurred during forced return flights as well as in the context of other joint opera­ tions orchestrated and implemented by Frontex have not been followed up by the agency. The press has reported how, to address this shortcoming, a group of national ombudsmen has recently announced plans to begin its own independent monitoring group and autonomously oversee the execution of the agency’s joint return flights.74 Official figures suggest that, in practice, it might be difficult (if not impos­ sible) for victims of human rights abuses deriving from actions or inactions of authorities involved in Frontex-led or participated activities to exercise their right to complain through the agency’s complaint procedure. In fact, while cases of human rights violations involving border and coast guards participating in Fron­ tex activities are constantly recorded through the Frontex Serious Incident report­ ing system,75 only two complaints were received by the agency in 2016 and 13 in 2017.76 It therefore appears that the inclusion in the EBCG Regulation of provi­ sions establishing a complaint mechanism responds only formally to the EU and

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international law requirement to establish instruments and procedures of redress for human rights abuses committed against migrants and asylum seekers. The agency’s complaint mechanism fails, however, to meet the minimum standards required for a remedy to be considered as effective. Pirjiola’s analysis in this book suggests that, unfortunately, the updated 2019 version of the EBCG Regulation foresees only minor improvements. These relate, for instance, to the online avail­ ability of a standardised complaint form but does not contemplate any substantial changes capable of addressing the main structural and functional shortcomings that currently affect the mechanism. 12.3.2.3 The role and functioning of existing National Human Rights Institutions and bodies operating as complaint mechanisms Among the countries covered by this book, it appears that all but Italy have estab­ lished bodies of administrative and/or quasi-judicial nature such as Ombudsper­ sons, NHRIs, along with national human rights commissions and institutes, which function as complaint mechanisms for human rights violations.77 These oversight bodies are generally and formally responsible for handling cases of mistreat­ ment or unlawful behaviour from public authorities, and are entitled to receive and address complaints related to fundamental rights infringements that are also committed in the context of border control, border surveillance, and expulsion operations (Carrera & Stefan 2018, pp. 67–69). They also contribute to the overall system of human rights accountability under EU and international law by cooper­ ating with other oversight bodies, and in particular with those of a judicial nature, before which they can report about cases of misconduct they become aware of. At the same time, the specific competences, powers, and exact roles of Ombudsper­ sons and NHRIs vary significantly from country to country. In this respect, the ‘models’ of this type of complaint mechanism are by and large context-specific. In Italy, an independent national human rights institution does not exist, and internal complaint mechanisms constitute the only extrajudicial accountability venue to which police officers as well as other authorities vested with border and immigration management functions are subject. A national ombudsperson for the people deprived of their personal freedom was only established in 2013.78 Acting as a National Preventive Mechanism (NPM) under the Optional Protocol to the UN Convention Against Torture (CAT),79 the National Guarantor has since 2016 the power to visit any place of detention, including detention centres and police premises at the border, but it is not vested with the power to receive and inves­ tigate individual complaints. This functional limitation is even more concerning considering that, as Campesi’s chapter indicates, in Italy judicial remedies are in practice very difficult to activate for human rights violations suffered by migrants and asylum seekers at the hands of Italian authorities. In other countries, the Ombudsman instead functions both as a complaint mech­ anism and as a human rights monitor in its capacity as a NPM. This is the case, for example, of Austria, Greece, Hungary, and Spain, where the ombudsman over­ views the implementation of the CAT but is also entitled to receive and investigate

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complaints, and in some cases can recommend or prescribe forms of reparations (e.g. the release of third-country nationals when it is found that their detention is arbitrary or unlawful, or the payment of compensation) in case of abuses. The attribution of these two functions (i.e. monitoring and handling of complaints) to the same human rights institution can enhance the capacity of the latter to contest misbehaviour or abuse of executive powers by border management and immigra­ tion enforcement actors, provided that certain conditions are met. Affected indi­ viduals might be allowed to activate a human rights complaint procedure directly during the visit of an Ombudsman mission to the locality. The latter might also be better positioned to start ex officio its own investigations to assess responsibili­ ties for infringements of human rights standards observed in places where forced return operations are implemented. As reported by Pirjola, information obtained though the investigation of complaints can be used to plan future NPMs visits. At the same time, protection gaps arise from the fact that the oversight tasks per­ formed by different national human rights bodies in their capacity as NPMs are by definition limited to abuses perpetrated in the framework of immigration deten­ tion and therefore can only effectively cover human rights violations occurring in the scope of expulsion operations. Only in a context where oversight bodies are entitled to receive and follow up on complaints related to acts or decisions undertaken in the context of different border and migration management-related activities (including sea and land borders control and surveillance), can human rights protection of migrants and asylum seekers be effectively secured. A good example in this respect is given by the Spanish Ombudsman which, as López-Sala notes, can launch and effectively started ex officio actions as a result of its visit to a site such as Ceuta and Melilla. The specific legal framework adopted in different national systems conditions not only the functional competence ratione materia of existing complaint mech­ anisms but also conditions the ways in which a complaint can be brought before human rights institutions and bodies. It also affects the extent to which the lat­ ter can independently start their own investigations. Also in this respect, the countries considered in this book present significant variations. In Hungary, a complaint (petition) before the Ombudsman can be lodged only if the complain­ ant has exhausted the available administrative legal remedies (excluding the judicial review of an administrative decision), or if no legal remedy is available to the complainant. Furthermore, the complaint cannot be processed if more than a year passed since the notification of the final administrative decision or in cases where the identity of the complainant has not been revealed by himself or herself. In Austria, complaints against human rights abuses committed in the framework of procedures related to denial of entry and apprehension (up to 14 days) have to be filed before the Security Police Directorates in the Federal States. On the other hand, the Austrian Ombudsman Board cannot handle com­ plaints regarding cases which involve a procedure that has not yet been con­ cluded, unless they relate, for example, to the duration of the proceedings, errors with deliveries, refusal to provide information or ‘gross discourtesy’ on the part of officials. In Greece, investigations against human rights violations occurring

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in the context of border management or forced removals can be activated ex officio, but this decision remains discretionary and ultimately depends upon the Greek Ombudsman. 12.3.2.4 Interlinks between national complaint mechanisms and International Human Rights Treaty Bodies Among the countries considered by this book, only Greece, Hungary, Poland, and Spain have existing NHRIs that fully comply with all the UN Paris Principles. As for the other NHRIs, compliance with such principles appears to be hampered by factors such as the specific nature, mandate, powers, and/or relations with the executive (Carrera & Stefan 2018). At the same time, a wide consensus exists among the international human rights community – comprising states, interna­ tional organisations, and civil society actors – that only NHRIs in full compliance with the UN Paris Principles should be entrusted with the responsibility to protect and promote human rights at the domestic level (Reif 2016, p. 95). Compliance of NHRIs with the Paris Principles is also essential to ensure the protection of human rights through the development of synergies and cooperation with the sys­ tem of protection established under relevant international human rights treaties. In fact, one of the essential requirements of the Paris Principles is the interaction of NHRIs with international human rights bodies and accountability fora. NHRIs are in particular required to assist, facilitate, and participate in country visits by UN experts, ‘including special procedures mandate holders, treaty bodies, fact find­ ing missions and commissions of inquiry.’80 They are also expected to contribute to ‘monitoring and promoting the implementation of relevant recommendations originating from the human rights system.’81 Currently, there are eight UN human rights treaty bodies (ICCPR,82 CESCR,83 CAT,84 CERD,85 CEDAW,86 CRPD,87 CED,88 and CRC)89 which may, under cer­ tain conditions, consider individual complaints (or communications) concerning violations of a right protected under their convention of reference. The individual complaint mechanism for the Committee on Migrant Workers (CMW) has been provided for in the covenant of reference, but it has not yet entered into force since the minimum number of required declarations by a convention’s signatory parties have still not been reached. The individual complaint mechanisms provided by UN human rights treaties bodies operate in a largely similar way. A series of preliminary require­ ments must be met in order for the individual complaint to be registered by the competent UN human rights body as a case for consideration. First, in order for an individual complaint to be raised against a state party, the latter has to recog­ nise the UN human rights treaty body’s competence to receive the complaints. Second, the individual complaint must concern a right protected by the treaty for implementation of which the committee is responsible. Third, before making a complaint to a UN human rights treaty body, a complaint must first be taken before the local courts and authorities and up to the highest available instance in

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the state party against which the complaint is directed. The committee may decide to derogate this general admissibility requirement when the claimant can prove that proceedings at the national level have been unreasonably prolonged, or rem­ edies are unavailable or appear plainly ineffective. However, the UN treaty bodies cannot act as an appellate instance with respect to national courts and tribunals, as they are not allowed to examine previous determinations of administrative, civil, or criminal liability of individuals, nor can they review the question of innocence or guilt. In most cases, the possibility of having a complaint considered by a UN human rights treaty body is also conditional on the exclusion of the activation of other relevant remedies ‘on the same matter’ provided under other existing international and supranational legal frameworks (such as the ECHR) to which the concerned country is party. For example, in order for the CCPR to consider any complaint from an individual regarding alleged violations of his or her rights, countries such as Austria, Italy, Poland, Romania, Spain, and Turkey require that the same matter does not constitute or has not previously constituted the object of an examination under another procedure of international investigation or set­ tlement.90 In addition to the individual complaint mechanisms referred to above, the Human Rights Council Complaint Procedure considers complaints submit­ ted to special rapporteurs or working groups of the Human Rights Council. This procedure not only addresses complaints submitted by individuals but also those submitted by groups or nongovernmental organisations that either represent indi­ viduals claiming to have been victims of human rights violations or have direct, reliable knowledge of such violations. Despite their important role in fostering states’ human rights accountability at the international level, UN individual complaint mechanisms do not meet all the standards which allow a complaint mechanism to be considered as fully effec­ tive. Although in some respects, the UN individual complaint mechanisms can be qualified as ‘quasi-judicial,’ committee decisions cannot be directly enforced. Rather, such decisions present an authoritative interpretation of the treaty and contain recommendations for state parties to take action based on the case. Where the competent committee finds that a violation has taken place, the state party is required to provide information within a particular time frame (e.g. 90 days for the CAT) on actions taken to implement the recommendations. Committees then monitor the follow-up process, and a complaint case remains open until satisfac­ tory measures are considered to have been taken. If the state party fails to take appropriate action, the case is kept under consideration by the Committee under the follow-up procedure. An interesting feature presented by some of these com­ plaint mechanisms (e.g. CAT) consists in their possibility to issue a request to the state party for ‘interim measures’ in order to prevent any irreparable harm (such as, for example, the deportation of an individual facing a risk of torture) that the alleged victim could face while the complaint is being decided.91 The CAT’s yearly reports record how complainants frequently request preventive protection, particularly in cases concerning imminent expulsion or extradition, where they allege a violation of Article 3 of the Convention.92

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12.4 Increasing the effectiveness of existing complaint mechanisms This chapter made clear that EU member states and CoE’s State Parties have a very specific obligation to establish administrative bodies entrusted with the com­ petence to receive human rights complaints. These oversight agencies can only qualify as ‘effective complaint mechanisms’ in the context of border management and immigration enforcement when they meet a series of functional and organi­ sational standards. Institutional independence, adequate powers of investigation, promptness, and thoroughness in follow-up procedures are among the main fea­ tures that an oversight body must possess in order to address the human rights complaints of irregular migrants and asylum seekers effectively. Given that these bodies offer a form of protection which is supplementary to the judicial oversight systems, they must be firmly anchored in a robust democratic framework where the rule of law – and more specifically the principle of separation of powers as well as the general principle of effective judicial protection – are guaranteed. At the same time, the research conducted by contributors to this book sug­ gests that formal compliance with the above-mentioned standards and features is not always sufficient to ensure that effective complaint mechanisms grant effec­ tive remedies in practice. Moraru and Nica’s chapter on Romania provide a clear illustration of how a complaint mechanism which appears as effective ‘on paper’ might not be so in practice. A wider set of contextual and operational issues must in fact be addressed to secure that existing accountability bodies and procedures adequately respond to the various types of fundamental rights challenges emerg­ ing from current border control, border surveillance, and returns policies and practices. 12.4.1 Strengthening the links between independent monitoring and complaint mechanisms A first set of accountability challenges derives from the absence of systematic, EU-wide, and independent system of monitoring border control and surveillance activities, as well as expulsion operations, and in particular during joint return flights. The unsystematic use of and in some cases non-existent independent mon­ itors in the different locations where border and migration management policies are implemented hinder the possibility of obtaining the evidence needed by com­ plaint bodies to investigate and redress abuses. The adequacy of an investigation, in some instances, crucially depends on a complainant’s possibility to interview witnesses. Especially when border activities take place in remote or out-of-sight locations such as the high seas, or chartered return flights, only professional inde­ pendent monitors can gather reliable information necessary to assess the existence of human rights abuses and ascertain related responsibilities. The establishment of strong functional links between independent monitoring bodies and independent complaint mechanisms can help in preventing and redress­ ing human rights abuses. For example, a monitoring body may be in possession of information that provides grounds for commencing a complaint procedure or that

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might be useful to investigate human rights abuse allegations. Findings from Italy, Greece, and Spain confirm how, in some cases, the activation of complaints was only possible because certain NGOs providing legal aid to migrants and asylum seekers actively searched for the victims of abuse and witnesses in their countries of origin or return. In Spain, furthermore, independent monitors such as NGOs or bar associations can also receive and transmit complaints to competent bod­ ies of judicial and administrative accountability. As noted by López-Sala, these organisations also provide legal assistance to migrants and asylum seekers on a wide range of cases. Enhanced presence of similar organisations at bordering sites would therefore also increase their possibility to provide migrants and asylum seekers the professional support required to ensure their rights. Referral and collaboration between monitors and the actors responsible for handling complaints (including civil society organisations specialised in access to legal aid) constitute a critical element to increase accountability of border and immigration enforcement authorities and other state actors, especially in those situations where recommendations from monitoring structures (e.g. the Frontex Consultative Forum) are not followed up on by the organisations subject to the monitoring. To the contrary, lack of interlinkages between actors performing these different accountability functions (i.e. monitoring, receiving, and addressing com­ plaints) generates substantial difficulties for complaint mechanisms to start – even ex officio – complaint procedures. While it seems that a few EU (e.g. Austria, Greece, Italy, but also Germany) are undertaking some steps aimed at enhancing systematic independent monitor­ ing of immigration enforcement activities (and in particular the different phases of forced returns), in several other countries and operational contexts the protec­ tion gaps which derive from the absence of independent human rights monitors are only likely to widen. This appears evident when considering recent policy initiatives adopted at the national and EU level and directed at the policing and/ or criminalisation of civil society actors operating in the field.93 Strik’s and Tóth’s chapters clearly show that activists and nongovernmental organisations are fre­ quently blamed for unduly ‘interfering’ with border management operations, while in fact they play a key role in reporting and investigating human rights vio­ lations as well as in facilitating migrants’ access to rights and justice. Externalisa­ tion of border patrolling practices to third countries, especially when conducted in favour of authorities such as the Libyan coast guards (which allegedly has links with armed factions and even criminal groups), also undermines the possibility to adequately monitor that EU and member state logistical and financial support does not lead to human rights abuses. A crucial issue affecting expulsion opera­ tions by air relates to the fact that the monitoring over the treatment of returnees generally stops at the airport of the destination country. 12.4.2 Improving complaint mechanisms’ accessibility through traceability of victims and portability of standards Various chapters in this book show that the extent to which complaint proce­ dures are accessible in practice is significantly reduced by different factors.

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A cross-cutting accessibility issue consists of the scarcity or absence of informa­ tion timely available to complainants about their right to complain. Further obsta­ cles derive from the heavily bureaucratic procedures for lodging complaints, the lack of knowledge of the language of the country where the complainant has been exposed to mistreatment and the complaint has to be lodged, and the non-availability or poor performance of interpreters. While these latter types of shortcomings sig­ nificantly affect the possibility that victims of fundamental rights abuses have to access an effective remedy, they could in practice be addressed relatively easily. Pirjola, for instance, notes that in the context of return operations, accessibility of complaint mechanisms could be enhanced through the systematic distribution of leaflets drafted in non-legalistic language and containing information indicating inter alia the contact details of the agencies or individuals who can assist in the submission of complaints, even post-return. Another key issue that currently undermines the effectiveness of complaint mechanisms (as well as of other justice venues) is constituted by the deprivation of the material possibility for victims of abuse to access legal aid. As several chap­ ters in this book show, the causes that currently hamper access to legal assistance (and consequently undermine the practical availability of complaint mechanisms) are multiple. In some cases, they derive from the adoption of highly informal bor­ der practices characterised by very low procedural guarantees. Various forms of pushbacks in Ceuta and Melilla analysed by López-Sala, as well the deportations of third-country nationals at the border from police stations in Spain described by Barbero and Illamona-Dausà provide concerning examples in this respect. This kind of often violent operation appears especially designed to restrict the rights to self-defence and legal aid, which should be otherwise ensured to individuals affected by administrative procedures, especially those impinging upon funda­ mental rights. For instance, the impossibility to access legal assistance channels and actors providing support to potential complainants depends on the fact that individuals apprehended during border control or surveillance operations are deprived of their mobile phones or mobile phone batteries. As Strik reports, this is the case for migrants and asylum seekers pushed back by Croatian authorities at the border with Bosnia-Herzegovina. Drakopoulou, Kostantinou, and Koros report how similar practices take place in Greece. Filing a complaint becomes particularly difficult when the individual affected by a human rights violation has already been expelled, pushed back, or is no longer physically present in the country.94 In most of the countries covered by this book, complaints before administrative or judicial bodies do not have a sus­ pensive effect. In some countries, complaint procedures can de jure or de facto be activated only if the complainant is physically present on the territory of the country. In her chapter, Lysienia shows that, in Poland, even when a third-country national has an arguable claim that a refusal of entry and removal order would expose him or her to a fundamental right abuse, immediate enforcement of such a measure would not be prevented by the activation of the administrative or judi­ cial remedies available in that country. In Italy, immigrants and asylum seekers often run the risk of being expelled even before they are given the possibility of

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lodging an asylum application.95 Legal practitioners from this EU member state reported of a case where the only means left to third-country nationals to avoid their return to a country where a risk of inhuman and degrading treatment exists (i.e. Sudan), was to physically resist their deportation on board the flight.96 In Hungary and Poland, the length of complaint proceedings appears to also act as a disincentive for foreigners to activate a complaint. In order to be effective, a complaint mechanism should not only be accessible but should also provide for prompt, expeditious, and yet thorough investigation and handling of the case. An additional challenge is represented by the fact that the anonymity of potential victims is not always guaranteed. However, these individuals may well be in fear of reprisal and intimidation if their identity were to become known. Third-country nationals usually dismay authorities and do not want to engage in formal com­ plaint procedures – their priority is ‘to make it’ across the border and reach their desired destination, not to submit a claim which may potentially jeopardise their journeys and dreams Often, the difficulty of obtaining a proper remedy is linked to the lack of ade­ quate investigations by the authority responsible for handling complaints. The use of user-friendly electronic tools (e.g. mobile phone applications, as well as dedicated internet pages making electronic complaint forms available in different languages) could also be introduced to allow affected individuals to report viola­ tions and lodge complaints before, during, and after return. Several chapters in this book confirm that the systematic and comprehensive collection of aggregated and disaggregated data on human rights incidents could facilitate effective and thorough investigations with a view to understanding causes, sanctioning and pre­ venting such practices, and protecting staff against unfounded allegations. Data protection-compliant video recording systems could be introduced in order to gather evidence of instances of excessive use of force, assault, and other forms of violence, torture, ill-treatment, and any other human rights violations and abuses perpetrated by border authorities and private actors, particularly in the context of border surveillance and joint return flights. These recordings could be available for periods of time commensurate with the usual length of procedures for lodging complaints so that they can be used to substantiate allegations of human rights violations. As reported by López- Sala in her chapter, these type of documents provide important sources of information that can be used by organisations to present lawsuits and lead to indictments. A further challenge is represented by the fact that identifying and tracking back the victim of a human rights violation who has been refused entry, pushed back, or expelled is still quite difficult in practice. Analyses on countries such as Austria, Italy, Poland, and Spain show how the complexity and costs involved in reaching out to undocumented victims of abuse after they have left a country’s territory often discourage activation of redress mechanisms, and often lead to the expiry of the terms prescribed by national law to lodge a complaint. To address such issues, other ways and procedures to lodge complaints (such as oral complaints) could be introduced so as to make the entire procedure simpler for complain­ ants. These practical remedies could help the development of a system of portable

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justice at the European level. The establishment of an EU-wide public interest complaint mechanism available to independent border monitors and civil society actors handled by an independent authority with adequate follow-up investigative and redress powers could have also been envisaged, although nothing similar is currently foreseen in the new Frontex Regulation. 12.4.3 Increasing adequacy of oversight bodies handling human rights complaints Poor quality of follow-ups to human rights complaints and limited transparency in the assessment of responsibilities also undermine the possibility of obtaining effective remedies. Even when they exist, complaint mechanisms that are not fully independent from the executive cannot guarantee an adequate level of effective­ ness and impartiality vis-à-vis the law enforcement authorities being monitored and the human rights allegations made against them. A concerning example in this respect is provided by the current Frontex com­ plaint mechanisms which, as demonstrated above, cannot ensure an impartial assessment of human rights allegations brought against Frontex staff or member state authorities. Even when evidence of human rights violations is provided, the Frontex Executive Director is not under the obligation to suspend the operations concerned. Furthermore, the FRO still does not have the power to directly followup fundamental rights complaints when they are addressed to the relevant authori­ ties in member states, and it is not expressly required to bring the issue before the European Ombudsman in cases of inadequate follow-up. Such shortcomings are particular concerning in light of the constantly increasing operational responsibil­ ity entrusted upon the agency, both in the context of border patrolling and control, and as the new EU ‘deportation machine.’97 As Cortinovis and Carrera show, Frontex’s complaint mechanism is not well designed to redress violations of member states or EBCG officials’ duty to refrain from committing international wrongful acts with far reaching fundamental rights repercussions. The authors’ research shows how these acts currently take the form of ‘at a distance’ cooperation with third countries such as Libya, where mass violations of migrants and asylum seekers’ fundamental rights constitute a well-documented reality. To date, exchange of information with the Libyan coast guard and EU operational and financial support to the authorities of this North African country can only lead to abuses of fundamental rights protected under EU law. Yet, it is practically impossible for affected individuals to effectively seek remedies against these practices through the Frontex complaint mechanism. In their chapter, Carrera and Cortinovis also point out how EASO is another agency which, despite conducting operational activities likely to have an impact on asy­ lum seekers’ rights, is not currently subject to a precise accountability framework nor equipped with any dedicated (let alone, independent) complaint mechanism. Similar concerns have also been raised by the European Ombudsman, which has in fact recommended EASO to set up a complaint mechanism, and suggested the agency to do so ‘as a matter of priority’.98 It is indeed crucial for the Union to align

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its agencies’ oversight mechanisms to the accountability standards provided under EU and international human right law. Adequateness in the follow-up of complaints received by existing admin­ istrative bodies could be enhanced through a system of multilevel cooperation among different accountability venues. The chapters in this book confirm that investigations and redress by existing complaint mechanisms do not preclude the possibility to activate other venues of accountability, of both judicial and adminis­ trative nature. The powers to refer cases to further investigations by other judicial authorities and disciplinary bodies is expressly included in the mandate of sev­ eral NHRIs. It appears, however, that these type of interactions remain, to date, rather limited. Enhanced cooperation among national complaint mechanisms, and between the latter and regional institutions such as the CPT, as well as UN human rights treaty bodies such as the Office of the High Commissioner for Human Rights (OHCHR), could help increase their effectiveness as they carry out field visits, receive and consider direct human rights complaints, and ask for remedies to governments on behalf of victims.

Notes 1 Among the many sources available, see, for instance, Border Violence Monitoring, A project documenting illegal pushbacks and police violence inflicted by EU mem­ ber state authorities, such as the borders of Serbia/Croatia and Serbia/Hungary, www. borderviolence.eu/. See also MSF, ‘Games of Violence: Unaccompanied Children and Young People Repeatedly Abused by EU Member State Border Authorities – Serbia’, Geneva: Médecins Sans Frontières, 2017; Amnesty International, ‘En tierra de nadie: La situación de personas refugiadas y migrantes en Ceuta y Melilla’, Madrid: Amnesty International Spain, 29 November 2017. 2 The concept of border management encompasses actions and/or decisions undertaken in the context of both border control and border surveillance. See, J. Monar, ‘The External Shield of the Area of Freedom, Security and Justice: Progress and Deficits of the Integrated Management of External EU Borders’, in J. de Zwaan & F.A.N.J. Gou­ dappel (eds.), Freedom, Security and Justice in the European Union: Implementation of The Hague Programme, The Hague: T.M.C. Asser Press, 2006, pp. 73–90. 3 See, Frontex, ‘Guide for Joint Return Operations by Air Coordinated by Frontex’, War­ saw, 12 May 2016. In the document, Joint Return Operation by Air is defined as an ‘operation aimed at the removal of illegally present third-country nationals by air. The initiative for such an operation is to be taken by one Member State, which will invite the participation of others.’ 4 Regulation of the European Parliament and of the Council of 23 October 2019 on the European Border and Coast Guard and repealing Regulations (EU) No. 1052/2013 and (EU) 2016/1624. 5 European Court of Human Rights (ECtHR), Solomou and others v Turkey, Application No. 36832/97, 24.06.2008. 6 ECtHR, Ribitsch v. Austria, Application No. 18896/91, 4.12.1995. 7 ECtHR, Kuznetsov v. Ukraine, Application No. 39042/97, 29.04.2003; and ECtHR, Ilaşcu and others v Moldova and Russia (GC), Application No. 48787/99, 8 July 2004. 8 Ibid., paras. 73–75. 9 ECtHR, Issa and others v. Turkey, Application No. 31821/96, 16.11.2004, para. 71. 10 ECtHR, Loizidou v. Turkey (Preliminary Objections), Application No. 15318/89, 23.03.1995, para. 62.

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11 ECtHR, Hirsi Jamaa and others v Italy (GC), appl. no. 27765/09, 23.12.2012, paras. 73 and 81. 12 ECtHR, N.D. and N.T. v. Spain, Application Nos. 8675/15 and 8697/15, 03.10.2017, para. 54. 13 See, for instance, ECtHR, Assanidze v Georgia, Application No. 71503/01, 8.04.2004. 14 ECtHR, Klass and others v. Germany, Application No. 5029/71, 6.09.1978. 15 ECtHR, Silver and others v the United Kingdom, Application Nos. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75 and 7136/75, 25.03.1983, para. 113. See also ECtHR Leander v Sweden, Application No. 9248/81, 26.03.1987, paras. 29–30, and ECtHR, Klass and others v Germany, op. cit. (n 14), para 67. 16 ECtHR, M.S.S. v. Belgium and Greece (GC), Application No. 30696/09, 21.01.2011 paras. 293 and 387. 17 ECtHR, Aydin v. Turkey, Application No. 23178/94, 25.09.1997, para 107. 18 ECtHR, Muminov v. Russia, Application No. 42502/06, 11.12.2008, para 100. 19 ECtHR, I.M. v France, Application No. 9152/09, 2.02.2012, paras 130, 147–14, and 154. 20 See M.S.S. v Belgium and Greece, op. cit., paras 283–293. 21 See Hirsi Jamaa and others v Italy, op. cit. (n 11), paras 199–200, and ECtHR, Gebremedhin v France, Application No. 25389/05, 26.04.2007, para 58; it is sufficient if one court has the option to decide before removal; a final decision of a court of last instance is not required. 22 ECtHR, Assenov and others v Bulgaria, Application No. 24760/94, 28.10.1998. 23 ECtHR, M.C. v Bulgaria, Application No. 39272/98, 4.12.2003. 24 ECtHR, Halat v. Turkey, Application No. 23607/08, 8.11.2011; ECtHR, Mocanu and others v Romania, Application Nos. 10865/09, 45886/07 and 32431/08, 17.09.2014. 25 ECtHR, Aksoy v. Turkey, Application No. 21987/93, 18.12.1996; ECtHR, Alder v United Kingdom, Application No. 42078/02, 22.11.2011. 26 ECtHR, Ramsahai and others v The Netherlands, Application No. 52391/99, 15.05.2007. 27 ECtHR, Alder v. United Kingdom, op. cit. (n 25). 28 ECtHR, Kaya v. Turkey, Application No. 22729/93, 19.02.1998. 29 ECtHR, Aydin v. Turkey, op. cit. (n 17). 30 This provision establishes that an alien lawfully resident can be expelled from the ter­ ritory of a State Party only in pursuance of a decision reached in accordance with law and has the right to submit reasons against his expulsion, to have his case reviewed and to be legally represented. Such procedural safeguards can be restricted when the expul­ sion is necessary in the interests of public order or is grounded on reasons of national security. The provision is modelled on article 13 of the International Covenant on Civil and Political Rights. 31 ECtHR, Al-Nashif v Bulgaria, Application No. 50963/99, 20.06.2002, para. 133. 32 See CPT Report to the Italian Government on the visit to Italy carried out by the Euro­ pean Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 13 June 2017, CPT/Inf (2018) 13, p. 29. 33 See in particular, CPT Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treat­ ment or Punishment (CPT) from 16 to 18 December 2015, CPT/Inf (2016) 33, p, 18. 34 Ibid. 35 CJEU, Case C-23/12 Mohamad Zakaria, 17 January 2013. 36 See Articles 20, 24, and 228 of the Treaty on the Functioning of the European Union (TFEU) and Article 43 of the Charter of Fundamental Rights of the European Union. 37 European Ombudsman Press Release no. 20/2014, Fundamental rights and forced returns of migrants: Ombudsman opens investigation, 22 October 2014. 38 A similar provision is contained in the Visa Code. See article 32(2) Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establish­ ing a Community Code on Visas.

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39 Directive 2008/115/EC of the European Parliament and of the Council of 16 Decem­ ber 2008 on common standards and procedures in member states for returning illegally staying third-country nationals. 40 Article 13 of the Returns Directive. 41 CJEU, Case C-23/12 Zakaria, op. cit. (n 35), para. 40. 42 United Nations, Standard Minimum Rules for the Treatment of Prisoners, 30 August 1955, para 35.1 and 2. 43 Ibid., para 36. 44 Council of Europe Committee of Ministers, Recommendation Rec(2006)2 of the Commit­ tee of Ministers to member states on the European Prison Rules (Adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies), para 70.4. 45 Council of Europe Parliamentary Assembly Res 1959, “Strengthening the institution of ombudsman in Europe” (2013) art 4.5 (Assembly calls on COE member states with ombudsman institutions to consider seeking their accreditation at the ICC [now GANHRI] in light of the Paris Principles). 46 United Nations General Assembly, Principles Relating to the Status of National Institu­ tions (Paris Principles), UN GA Res 48/134, UN Doc A/RES/48/134 (1993). 47 Article 5 and Section 5 of the GANHRI Statute [version adopted on 7 March 2017]. 48 For instance, both Albania’s People’s Advocate and Serbia’s Protector of Citizens have been praised for their effectiveness ‘despite the challenging political environment’ in which they operate. See, respectively: ICC/GANHRI, Report and Recommendations of the Session of the Sub-Committee on Accreditation (SCA) (Geneva: October 27–31, 2014) [ICC/GANHRI October 2014 Accreditation Recommendations] (Ukraine (A), Hungary (A), Russia (A), Albania (A), Finland (A)), and; ICC/GANHRI, Report and Recommendations of the Session of the Sub-Committee on Accreditation (SCA) (Geneva, 16–20 March 2015) [ICC/GANHRI March 2015 Accreditation Recommen­ dations] (Ecuador (A), Serbia (A), Uruguay (deferred), Latvia (A). 49 United National General Assembly, Body of Principles for the Protection of All Per­ sons under Any Form of Detention or Imprisonment, A/RES/43/173, 76th plenary meeting, 9 December 1988. See Principle 33, para 4. 50 See FRA, ‘Fundamental Rights at Europe’s Southern Sea Borders’, 2013, p. 37. 51 As recently reinstated by Frontex, measures in third countries and cooperation with neighbours are considered as ‘essential components’ of the so-called EU integrated bor­ der management approach, and complement EU external border control and other secu­ rity measures within the EU areas of free movement. See Frontex Report to the European Parliament on Frontex cooperation with third countries in 2016. Since the adoption of the EBCG regulation, the agency can also carry out joint operations on the territory of third countries neighbouring at least one member state (Article 54 ECBG Regulation). 52 See United Nation Office on Drugs and Crime (UNODC), Handbook on Police Accountability, Oversight and Integrity, Criminal Justice Handbook Series, Vienna: United Nations Publications, 2011, p. 12. 53 Ibid., p. 75–76. 54 According to the Austrian expert respondent of the e-survey developed for this book, there are no other authorities responsible for receiving such complaints except when a) the complaint is against a decision undertaken in the framework of return operations and concerning asylum seekers (for which the BFA is competent), or b) the complain­ ant qualifies as eligible to contact the Ombudsperson for a possibility of supervision. 55 Translation of the complaint letter is provided in the Border Violence Monitoring’s website; see www.borderviolence.eu/complaint-by-croatian-police-officers-who-arebeing-urged-to-act-unlawfully/. 56 Press release of the Centre for Peace Studies in Zagreb, www.cms.hr/hr/azil-i-integrac ijske-politike/i-policajci-upozoravaju-na-nasilna-i-ilegalna-protjerivanja-sustav-puca-po­ savovima.

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57 Croatian president Grabar-Kitarović confirmed in July2019 that ‘a little bit of force isneeded’ for Croatian authorities to conduct pushback of migrants to Bosnia and Herzegovina; see www.dw.com/en/in-croatia-eu-border-guards-use-a-little-bit-of-force/a-49587251. 58 Republika Hrvatska Pučki pravobraitelj, ‘News: No institutional reaction to alleged illegal police treatment of migrants,’ www.ombudsman.hr/en/no-institutionalreaction-to-alleged-illegal-police-treatment-of-migrants/. 59 According to Article 2(b) of the Frontex Code of conduct, this includes ‘ . . . any activ­ ity coordinated or led by Frontex within the framework of its tasks as described in the Frontex Regulation.’ According to the EBCG regulation, these activities encompass Joint Operations, Pilot Projects, Joint Return Operations, Rapid Border Interventions, the deployment of Migration Management Support Team, but also Return Operations, Return Interventions, and Trainings. 60 Article 109 EBCG Regulation. 61 Article 111(6) EBCG Regulation. 62 Article 25(2) EBCG Regulation. 63 Article 111(6) EBCG Regulation. 64 Article 111(7) of the EBCG Regulation now foresees that the ‘relevant Member State shall report back to the fundamental rights officer within a determined time period as to the findings and follow-up to the complaint, and, if necessary, at regular intervals thereafter. The Agency shall follow up on the matter if no report is received from the relevant Member State’. 65 Article 111 (8) EBCG Regulation. 66 See Decision of the European Ombudsman closing own-initiative inquiry OI/5/2012/ BEH-MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), 12.11.2013. 67 Point 78 of the Ombudsman’s assessment (n 63). 68 Article 5(2) of the Agency’s Rules on the Complaint Mechanism. 69 As confirmed by the information collected through the survey conducted in the frame­ work of this book, anonymity was indicated among the main reasons for declaring complaint inadmissible. 70 Article 5(1) of the Agency’s Rules on the Complaint Mechanism. 71 Article 3 of the Agency’s Rules on the Complaint Mechanism. 72 These instruments include the Consultative Forum, the Fundamental Rights Officer, the coordinating officer, and the mechanism for suspending and terminating joint oper­ ations and pilot projects with the Executive Director making the final decision. 73 Point 79 of the Ombudsman’s assessment (n 63). 74 D. Howden, A. Fotiadis & A. Loewenstein (2019), “Once migrants on Medi­ terranean were saved by naval patrols. Now they have to watch as drones fly over,’ The Guardian, 4 August 2019, www.theguardian.com/world/2019/aug/04/ drones-replace-patrol-ships-mediterranean-fears-more-migrant-deaths-eu. 75 As of 31.07.2017, the agency received 561 serious incident reports. See Fron­ tex response to Request for access to Documents, www.asktheeu.org/en/request/ reports_of_violation_of_frontex#incoming-14459. 76 Figures provided by the FRO during interviews conducted in the framework of this book. 77 To date, EU member states with NHRIs include: Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Greece, Hungary, Latvia, Lithua­ nia, Luxembourg, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden. 78 This body has been established by law no. 10 of 10 February 2014. 79 The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Optional Protocol – OPCAT) provides for the establishment of National Preventive Mechanisms (NPMs) to monitor State Parties implementation of the CAT. The OPCAT also gives guidance concerning the NPMs man­ date and powers. The most relevant of these provisions are Article 3, 4, 17–23, 29, and 35.

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80 GANHI General Observation no 1.4 ‘Interaction with the international human rights system.’ 81 Ibid.

82 International Covenant on Civil and Political Rights.

83 International Covenant on Economic, Social and Cultural Rights. 84 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 85 International Convention on the Elimination of All Forms of Racial Discrimination. 86 Convention on the Elimination of All Forms of Discrimination against Women. 87 Convention on the Rights of Persons with Disabilities.

88 International Convention for the Protection of All Persons from Enforced Disappearance.

89 Convention on the Rights of the Child.

90 The CCPR understands ‘the same matter’ as a complaint relating to the same author, the same facts, and the same substantive rights. However, facts that have been submit­ ted to another international mechanism can be brought before the Committee if a) the Covenant provides for a broader protection, b) complaints submitted to other interna­ tional mechanisms have been dismissed on procedural grounds. 91 If the complainant wishes the Committee to consider a request for interim measures, he or she should state it explicitly and explain in detail the reasons why such action is necessary. See OHCHR, Fact Sheet No. 17. 92 See inter alia, Committee against Torture Report to the General Assembly, Fifty-third session (3–28 November 2014) and Fifty-fourth session (20 April–15 May 2015), A/70/44. 93 See Ansa, ‘NGO migrant rescue ship seized, 3 probed: ProActiva Open Arms at centre of new investigation,’ ANSA.it, 19 March 2018, www.ansa.it/english/news/general_ news/2018/03/19/ngo-migrant-rescue-ship-seized-3-probed_01dce0c7-a890-41ffa606-9a36a8e3ea86.html. 94 Experts replies from Greece, Hungary, and Spain. 95 See CPT Report to the Italian Government on the visit to Italy carried out by the Euro­ pean Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), op. cit., p. 19. 96 See Statewatch, ‘Italy/Sudan: ASGI and ARCI Appeal Against Mass Deportation to Sudan Deemed Admissible by the EctHR’, 12 January 2018, http://statewatch.org/ news/2018/jan/italy-sudan.htm. 97 Lighthouse Reports, ‘Frontex: EU’s Deportation Machine’, 2019, https://vimeo. com/351673775. 98 European Ombudsman, Decision of the European Ombudsman in case 1139/2018/ MDC on the conduct of experts in interviews with asylum seekers organised by the European Asylum Support Office, Case 1139/2018/MDC, Decision taken on 30 Sep­ tember 2019, https://www.ombudsman.europa.eu/en/decision/en/119726.

References Amnesty International (2016), ‘En tierra de nadie: La situación de personas refugiadas y migrantes en Ceuta y Melilla’, Madrid, Amnesty International Spain, 29 November. Carrera, S. & Cortinovis, R. (2019), ‘Search and Rescue, Disembarkation and Relocation Arrangements in the Mediterranean’, CEPS Paper in Liberty and Security, No. 2019–10, June. Carrera, S. & Stefan, M. (2018), ‘Complaint Mechanisms in Border Management and Expulsion Operations in Europe: Effective Remedies for Victims of Human Rights Vio­ lations?’ CEPS Paperback Series, Annex I. Carrera, S., den Hertog, L. & Stefan, M. (2017), ‘It Wasn’t Me! The Luxembourg Court Orders on the EU-Turkey Refugee Deal’, CEPS Policy Insight No. 2017–15, April. Den Boer, M. & Fernhout, R. (2008), ‘Policing the Police, Police Oversight Mechanisms in Europe: Towards a Comparative Overview of Ombudsmen and Their Competencies’,

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Background Report Presented at the workshop: Improving the Role of the Police in Asia and Europe Delhi, India, 3–4 December. FRA (2013), ‘Fundamental Rights at Europe’s Southern Sea Borders’, Vienna, European Union Agency for Fundamental Rights. Frenzen, N.W. (2017), ‘The Legality of Frontex Operation Practices’, in T. GammeltoftHansen & J. Vedsted-Hansen (eds.), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and Migration Control, Routledge Studies in Human Rights, Abindgon: Routledge, pp. 294–313. Frontex (2016), Guide for Joint Return Operations by Air Coordinated by Frontex, War­ saw, 12 May. Lambert, H. (2007), The Position of Aliens in Relation to the European Convention on Human Rights, Human Rights File, No. 8, Strasbourg: Council of Europe Publishing. Monar, J. (2006), ‘The External Shield of the Area of Freedom, Security and Justice: Progress and Deficits of the Integrated Management of External EU Borders’, in J. de Zwaan & F.A.N.J. Goudappel (eds.), Freedom, Security and Justice in the European Union: Implementation of The Hague Programme, The Hague: T.M.C. Asser Press, pp. 73–90. MSF (2017), ‘Games of Violence: Unaccompanied Children and Young People Repeat­ edly Abused by EU Member State Border Authorities – Serbia’, Geneva, Médecins Sans Frontières. Reif, C.L. (2004), The Ombudsman, Good Governance and the International Human Rights System, Leiden: Martinus Nijhoff Publishing. Reif, C.L. (2016), ‘Human Rights Ombudsman Institutions as GANHRI Accredited National Human Rights Institutions (NHRIs): Benefits, Challenges and Limitations’, Paper presented at the 11th World Conference of the International Ombudsman Institute, Breakout Session II: Human Rights Based Approach to the Ombudsman’s Work – Part 1. Shelton, D. (2014), ‘Art. 47 – Right to an Effective Remedy’, in S. Peers, T. Hervey, J. Ken­ ner & A. Ward (eds.), The EU Charter of Fundamental Rights. A Commentary, Oxford: Hart Publishing. Vitiello, D. (2018), ‘Agencification as a Key Component of the EU Externalization Toolkit, Observations on a Silent Escape from the Rule of Law’, in S. Carrera, L. den Hertog, M. Panizzon & D. Kostakopoulou (eds.), EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes, Leiden: Brill Nijhoff Publishing. United Nation Office on Drugs and Crime (UNODC) (2011), Handbook on Police Account­ ability, Oversight and Integrity, Criminal Justice Handbook Series, Vienna: United Nations Publications.

Index

abuse of power 97, 110, 126, 128, 187, 219 – 220, 228, 230, 275 airport 113, 117, 224, 228, 230, 231, 279 anti-intrusion strategy 27 arbitrary interference/arbitrary behaviour 96, 125, 153, 182, 187 – 188, 209, 243, 275 asylum procedures 13, 15, 72 – 77, 150, 158, 165, 201, 206, 228 border fence 6, 15, 29, 34, 46, 48, 72, 84, 176, 180, 242 – 245, 260 border guard(s) 16, 87, 88, 99, 180 – 181, 197 – 199, 206, 244 – 245, 262, 264, 265, 267, 270 bordering 1 – 8, 11, 12, 14, 279 border police 69, 70, 73, 126, 134, 198 – 199, 204 – 206, 211, 242, 246 – 248, 250, 267, 269, 270 border readmissions 46, 53, 59 border surveillance 1, 2, 4, 7, 17, 71, 73, 126, 135 – 139, 150, 152, 155, 162 – 163, 197, 204, 210, 251, 259 – 260, 262, 265, 267 – 270, 272, 274, 278, 281 border traffic 87 Central and Eastern Mediterranean Sea 17, 135, 139, 148 – 152, 155, 161, 163 – 164, 166, 175, 272 Ceuta and Melilla 14, 15, 25 – 35, 44, 46, 47, 49, 159, 241 – 242, 251, 275, 280 classified case file 94 – 95, 208 – 209 collective expulsion or deportation 47 – 50, 205, 210, 235, 237 – 239, 242, 246, 247 constructive human rights pluralism 10 containment 4, 6, 25, 29, 47, 72, 149 – 150, 155, 159 – 162, 164, 166 Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

(CPT), The 2, 11, 114, 187, 181 – 182, 204, 228 – 230, 244 – 245, 252, 263 – 264, 270, 283 Court of Justice of the European Union (CJEU): Abdida C-562/13 93; Aquino C-3/16 100; El Hassani C-403/16 100, 103; Mohamad Zakaria C-23/12 264; NF, NG and NM, T-192/16, T-193/16, T-257/16, 185; NF, NG and NM C-208/17 P, C-209/17 P and 210/17 P 185; Yassin Abdullah Kadi and Al Barakaat International Foundation Joined Cases C-402/05 P and C-415/05 P 210; Z.Z., C-300/11 95, 102, 207, 210 creative legal thinking 8, 237, 238 criminalisation 70 – 72, 139, 152, 161, 244, 252, 279 databases 3, 5, 246, 249 data-driven migration management 5, 152 de facto and de jure control 8, 10, 159 – 169, 167 democratic governance/control 16, 65, 160, 252 deportation/returns operations 16, 44, 45, 46, 53, 65, 99, 100, 139, 158, 180, 182 – 186, 187, 189, 201, 231, 242, 263 – 264, 277, 280, 204 detention centres/facilities 16, 43, 54, 57, 113, 152, 159, 161, 164, 175, 178 – 180, 182, 184 – 186, 189, 200, 202, 206, 219, 224, 228, 248, 263 – 266, 274 – 275 disciplinary measure and procedure 96, 97, 99, 130 – 133, 142, 187 – 188, 198, 204, 226 – 227 discrimination 5, 12, 43, 53, 154, 180 disembarkation arrangements 17, 148 – 158, 161 – 164, 168

290

Index

disproportionate use of force 97, 209 Dublin Regulation 70, 76, 101, 154, 165, 180, 187, 237, 247, 250, 253 effective remedies 1, 3, 7, 8, 15, 17, 18, 44 – 45, 77, 87 – 89, 94, 101, 108, 110, 119, 127, 142, 175 – 176, 178 – 179, 185, 189, 259, 260, 262, 264, 267, 271 – 273, 278, 282 escorted deportation by police 107, 111, 244 EU Charter of Fundamental Rights (EUCFR) 9, 10, 12, 54, 77, 87, 88, 93, 95, 101, 155, 158, 207, 220, 239 – 240, 250, 264, 270, 272 EU Fundamental Rights Agency (FRA) 12, 83, 85, 125, 252 EU hotspot model (hotspot facilities/ hotspots) 6, 17, 139, 140, 160, 264 EU NAVFOR Med-Sophia operation 138, 149, 151 – 152, 161, 268 EU principle of solidarity and fair sharing of responsibility 15, 70, 83, 84, 253 EURODAC 136, 154 European Asylum Support Office (EASO) 12, 154, 164 – 167, 265, 282 European Border and Coast Guard (EBCG, Frontex) 11 – 12, 17, 18, 54, 57, 64 – 65, 73, 119, 135, 149 – 153, 160 – 167, 177, 180, 220 – 223, 226, 228, 229 – 181, 188 – 189, 231, 240 – 241, 259, 265, 268, 271 – 273, 279, 282 European Commission against Racism and Intolerance (ECRI) 53, 204, 213 – 214 European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) 2, 11, 114, 179, 181 – 182, 187, 204, 220, 228 – 230, 252, 263 – 264, 270, 283 European Convention of Human Rights (ECHR) 10, 33 – 36, 48 – 50, 54, 77, 83, 88, 89, 92 – 95, 101, 158 – 160, 162 – 166, 187, 209, 235, 238 – 239, 242, 259 – 264, 270, 277; Article 1 of Protocol No. 7 263; Article 4 of Protocol No. 4 48, 94, 235, 237 – 239 European Court of Auditors (ECA) 12, 252 European Court of Human Rights: Aksoy v. Turkey 263; Alder v. United Kingdom 263; Al-Nashif v Bulgaria 263; Assanidze v Georgia 261; Assenov and others v Bulgaria 263; Aydin v. Turkey 262, 263; Balde and Abel v. Spain 34, 50; C.D. v. Greece 192; Čonka v. Belgium 235; D.A. and Others v. Poland 92, 102; Doumbe Nnabuchi v. Spain 34, 50; Gebremedhin [Gaberamadhien] v.

France 92, 102, 263; Halat v. Turkey 263; Hirsi Jamaa and Others v. Italy 159, 242, 260, 261, 263; Ilaşcu and others v Moldova and Russia 260; Ilias and Ahmed v Hungary 74, 85; I.M. v. France 262; Issa and others v. Turkey 260; J.R. and Others v. Greece 186; Kaya v. Turkey 263; Kebe and Others v. Ukraine 100, 103; Klass and others v. Germany 261; Kuznetsov v. Ukraine 260; Leander v. Sweden 262; Loizidou v. Turkey 260; M.A. and Others v. Poland 92, 102; M.C. v. Bulgaria 263; M.K. v. Poland 92, 102; M.N.A v. Romania 207 – 210; M.S.S. v. Belgium and Greece 92, 102, 262 – 263; Muhammad and Muhammad v. Romania 210; Muminov v. Russia 262; N.D and N.T v. Spain 33, 46 – 51, 159, 261; O.S.A. v. Greece 186; Rahimi v. Greece 187; Ramsahai and others v The Netherlands 263; Ribitsch v. Austria 260; R.U. v. Greece 186; Silver and others v the United Kingdom 262; S.Z. v. Greece 187; Women on Waves v. Portugal; X. v. Switzerland 225 Europeanisation 8 European Ombudsman 12, 163, 165, 221 – 223, 229 – 231, 240, 252, 265, 273, 282 EUROSUR 17, 152, 272 EU Trust Fund for Africa 138, 243 EU-Turkey Statement (EU-Turkey Deal) 17, 138, 176, 184 – 185, 243 Evros region 18, 180 – 182, 185, 240, 243 – 244 existential border 3 express deportations 46, 56, 57 – 59 expulsion orders/expulsions 3, 25, 46, 57, 59, 166, 176, 198, 205, 235, 238, 244, 259, 262 – 263, 267, 271 extralegal administrative, operational, and police practices 35 extraordinary legal measures 30 extraterritorial migration controls 5, 48, 239 forced return monitor (FReM) 112, 115, 116, 229, 240 forced returns 16, 18, 58, 108, 134, 181, 187, 219, 228, 238, 265, 270, 273, 275, 279 Fortress Europe 26 functional approach to fundamental rights protection 10, 14 Fundamental Rights Officer (FRO) 73, 163, 188, 221, 223, 228 – 229, 271, 273

Index geographical limitation 18, 175, 178 – 180, 185, 187, 189 Guardia di Finanza 130, 135, 137, 151 hot returns 6, 27 – 30, 32 – 34, 36, 44, 159 Hungary’s southern borders (with Serbia and Croatia) 15, 64, 71, 84 ill-treatment 2, 11, 54, 108, 125, 132, 134, 138, 140, 141, 149, 158, 182, 211, 219, 225, 231, 243, 263 – 264, 281 independent authority 187 – 188 independent monitoring 16, 18 – 19, 35, 45, 83, 113, 115, 117, 126, 138, 140, 141, 142 interception at sea 139, 151 – 152, 197, 177, 240, 272 internal supervision 96 – 97, 127 – 128, 133, 188 – 189, 198, 227, 240, 269 – 271 Italian Maritime Rescue Coordination Centre (MRCC) 137, 150, 272 Italian police accountability regime 17, 126, 130 – 131, 134, 137, 142 Joint European Operation Possidon–Thalassia Sinora 178 joint operations at sea 135, 149 – 150, 158, 161 – 162 joint patrols 235, 247 – 248 joint return flights/joint return operation 14, 18, 73, 220 – 221, 266, 278, 281 judicial remedies 10 – 13, 18, 169, 179, 184 – 186, 189, 261, 267 jurisdiction 9, 10, 48, 109, 159 – 160, 202 – 203, 260 – 261 justicing 9 – 12, 16, 148, 217 Kabul 110, 238 large-scale surveillance 3 legal assistance 19, 25, 29 – 30, 32 – 34, 45, 53, 57 – 59, 65, 78, 82 – 83, 89 – 90, 94, 98 – 101, 184, 186, 205, 250 – 252, 279 – 280 legal professionals 18, 25, 33, 47, 52, 58, 83, 91, 101, 181, 185 – 186, 208 – 209, 223, 225, 230 – 231, 211, 249, 281 Libya 138 – 139, 240, 242 – 243, 260, 272, 279, 282 Libyan coast guard 17, 138, 139, 149, 151 – 152, 159 – 160, 164, 166, 279, 282, 242 – 243 Libyan Government of National Accord (GNA) 138

291

mass migration influx crisis 65, 74, 179 monitoring mechanisms 18, 112, 116, 138, 155, 163 – 164, 187 – 188 Morocco 26 – 29, 34, 47 – 49, 57, 159, 238, 241, 251, 261 National Human Rights Institutions (NHRIs) 2, 7, 133, 266, 272, 274, 276, 283 National Preventive Mechanism (NPM) 43, 54, 112, 114 – 117, 187, 219 – 220, 229, 252, 274 – 275 national security 92, 94 – 96, 201 – 204, 207 – 209, 211, 262 non-territories 9 Ombudsman 2, 12, 27, 29, 31 – 33, 35, 43, 46 – 47, 54 – 55, 79, 81 – 82, 83, 99, 107, 111 – 116, 133 – 134, 140 – 141, 185 – 189, 199 – 201, 204, 210, 222, 226 – 228, 240, 248, 252, 262, 266, 270, 273 – 276 operational control 28, 162 ‘out-of-sight’ locations 137, 142, 178, 269, 278 peripheral territories 25, 26 place of safety 157 – 158, 160 plausible legality 35 police and border guard accountability 19, 29, 35, 72, 101, 130 – 134, 177 – 178, 198, 240, 270 police violence 27, 50, 84, 129, 198, 219, 240, 243, 245 – 246, 248 – 249 populism 16, 64, 65, 83 portable justice 7 – 9, 166 – 167, 281 portable responsibility 9, 10 proactive and reactive measures of migration control 25 processing centres 137, 140, 164, 166 protection gap 35, 164, 210, 259, 267, 275, 279 public attitudes/opinion/knowledge 71, 153 public safety and order 94, 202, 204 pullbacks 17, 139, 158 – 160, 166, 235, 252, 272 pushbacks 6, 15, 19, 28, 30, 44, 46, 47 – 50, 53, 59, 70, 83, 91, 159, 175, 177 – 178, 181 – 183, 189, 198, 204 – 205, 211, 234 – 238, 240 – 246, 248 – 253, 280 Readmission Protocol 184 – 185 refoulement by proxy 139 refusal of disembarkation 149, 159, 166 refusal of entry 88 – 93, 99, 203 – 204, 238, 207, 211, 264, 280

292

Index

regulatory weapons 52, 60 remote control 5, 272 repair of damage/compensation of harm 98, 201, 265, 224 – 226 return decision 107 – 110, 112, 180, 201 – 203, 220, 265 – 266 return flight 2, 14, 18, 19, 111 – 116 return monitoring mechanisms 18, 99, 100, 112 – 114 Returns Directive 11, 13 – 14, 107, 115, 183 – 184, 187, 201, 229, 251, 265 right of access to information 19, 53, 100, 266 rights of defence 15, 45 – 46, 53, 95, 198, 200, 207, 211 right to appeal 3, 11, 53, 56, 57, 88 – 91, 100, 201 – 203, 220, 223, 226, 229, 265 rule of law 6, 7, 9, 10, 13, 14, 16, 83, 96, 149, 252, 278, 288, 263

surveillance technology 4, 152 suspensive effect 12, 70, 75 – 81, 88 – 89, 92 – 94, 101, 108, 186, 200 – 204, 210, 263, 265, 280

safe country of origin 13, 75, 78 safe third country 13, 75, 78, 176, 179, 236 safe transit country 75, 84 Schengen 13, 26, 31, 51, 66, 68, 70, 74, 175, 183, 197, 220, 246 – 247, 251, 268, 270 Schengen Borders Code (SBC) 13, 73, 74, 69, 79, 89, 155, 162, 239, 265, 270, 272 screening procedures at disembarkation 17, 139 – 140 search and rescue (SAR) 17, 135, 148 – 153, 157 – 164, 166, 177, 243; NGOs 138, 139, 148, 151 – 152, 159 – 160, 165, 242 – 243 secret evidence 94, 208 – 209 sex parties 55

Spanish northern border with France 15,

51 – 54 Special Representative of the Secretariat General of the Council of Europe 242 Special Representative of the United Nations for Migrant Rights 30, 35 state of exception 25 strategic disengagement 148 – 150, 152, 164, 166

UN human rights treaty bodies 266, 276, 283 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 274, 276 – 277 United Nations Convention on the Rights of Persons with Disabilities 115 United Nations High Commissioner for Human Rights 92, 125 – 126, 139, 283 United Nations Human Rights Committee 141 United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) 115, 219, 274 United Nations Paris Principles 266, 276 United Nations Protocol for NonAccompanied Minors 32

Temporary Attention Centres (CATEs) 54 temporary disembarkation and relocation arrangement 17, 148, 153 temporary holding centres (CETIs) 30, 31, 38 Terespol 89, 91 – 92, 101 tolerated status 109, 111 tragedy at El Tarajal 27, 29, 35 transit zones/transit areas 6, 9, 13, 75, 83, 211, 238, 245 translator/translation 89, 98, 100, 184, 186, 201 transnational law enforcement 8

visa policies 5 wet pushbacks 28, 30