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Decision on how the European Border and Coast Guard Agency (Frontex) assessed the human rights impact before providing assistance to non-EU countries for developing surveillance capabilities (case 1473/2022/MHZ)
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Zaak 1473/2022/MHZ - Geopend op Woensdag | 05 oktober 2022 - Besluit over Vrijdag | 08 december 2023 - Betrokken instelling Europees Grens- en kustwachtagentschap ( Geen verder onderzoek gerechtvaardigd ) - Land Verenigd Koninkrijk
The complainants, a group of civil society organisations, were concerned that the European Border and Coast Guard Agency (Frontex) did not assess human rights risks before providing assistance to non-EU countries, such as capacity building and training in surveillance techniques, the transfer of surveillance equipment and other related support. The complainants contended that, before agreeing to provide such assistance Frontex should have carried out prior risk and impact assessments to ensure that the assistance does not result in human rights violations.
The Ombudsman found that Frontex’s Fundamental Rights Officer, who assesses whether Frontex’s activities in the context of its cooperation with non-EU countries are compliant with fundamental rights, had established a procedure comprising the essential elements of a human rights impact assessment. However, she found that the procedure should be updated and its transparency and application should be improved. The Ombudsman therefore concluded the inquiry with suggestions for improvement.
Background to the complaint
1. The complainants are a group of civil society organisations[1] who raised concerns about the European Border and Coast Guard Agency (Frontex) providing technical and operational assistance for capacity building of surveillance capabilities in non-EU countries.
2. Frontex provides[2] technical and operational assistance to non-EU countries in the context of European integrated border management. [3] It also exchanges[4] information with non-EU countries in the framework of the European Border Surveillance system (EUROSUR)[5].
3. In 2010, the Africa-Frontex Intelligence Community (AFIC) was set up to provide a framework for regular knowledge and intelligence sharing about migrant smuggling and border security threats between Frontex and African countries. This cooperation involves training activities organised by Frontex for law enforcement officials of these countries, and setting up integrated border management systems, as well as improving the collection, sharing and analysis of relevant data.[6] ‘Risk analysis cells’ are part of the AFIC network. The role of the cells, which are run by local analysts trained by Frontex, is to collect and analyse data on cross-border crime and support authorities involved in border management. This includes information on illegal border crossings, document fraud, trafficking in human beings and other types of cross-border crime.[7]
4. Frontex has also been supporting[8] the development and strengthening of the Libyan General Administration for Coastal Security (GACS).
5. In addition, Frontex has concluded ‘working arrangements’[9] with 18 non-EU countries[10]. It also cooperates with Nigerian authorities, through the EU civilian mission EUCAP Sahel Niger[11].
6. On 9 March 2022, one of the complainants - Privacy International - wrote to Frontex, asking what procedures Frontex has in place to ensure that its cooperation with non-EU countries respects human rights and does not contribute to human rights violations. PI wanted to know: whether a prior review of legal and other human rights safeguards in the countries to which Frontex provides support is undertaken; what due diligence or human rights impact assessments are undertaken; whether data protection impact assessments are undertaken; and which measures exist to protect human rights in the recipient countries. Frontex did not reply.
7. The complainants turned to the Ombudsman in August 2022.
The inquiry
8. The Ombudsman opened an inquiry into the complainants’ concern that Frontex does not carry out prior human rights risk and impact assessments (HRIAs) in relation to the technical assistance it provides non-EU countries, notably related to the development of surveillance capabilities.
The complainants considered that Frontex is under an obligation to carry out HRIA prior to engaging in any form of transfer of surveillance capabilities to authorities of third countries. If Frontex has failed to carry out said assessments, such failures constitute maladministration, in the complainants’ view.
9. The Ombudsman asked Frontex to reply to the complainants’ concerns and to six specific questions[12]. After having received Frontex’s reply, the Ombudsman asked Frontex additional questions[13], to which Frontex replied in July 2023.
Arguments presented to the Ombudsman
10. The complainants consider that, in accordance with the Treaties[14] and the legislation governing Frontex[15], Frontex is under an obligation to carry out human rights risk and impact assessments (HRIAs) prior to engaging in any form of transfer of surveillance capabilities to non-EU countries, in particular those with a recent history of corruption and/or human rights violations.
11. The complainants provided the example of Frontex’s training for the Libyan General Administration for Coastal Security. They said that Frontex taught participants how to secure evidence for prosecution and intelligence purposes from electronic devices; ‘basic self-defence techniques that can be used during the apprehension of suspects on board including the use of force and its limitations’; and law enforcement techniques during the search of suspects and their belongings apprehended on board. The Terms of Reference for this activity show that the risk assessment undertaken for the training does not identify any possibility that the training could facilitate human rights abuses or undermine the reputation of the EU in Libya. This is despite NGO reports of mistreatment by the Libyan authorities of migrants on board vessels, as well as human right abuses of migrants in Libyan detention centres.[16] A fact-finding mission in Libya by the UN Human Rights Council confirmed the NGOs’ reports.[17] The UN Special Rapporteur on Human Rights of Migrants said already in 2018 that Libya is not a place of safety for persons rescued at sea.[18]
12. In its reply[19], Frontex said that, in accordance with the legislation governing its work, the Fundamental Rights Officer (FRO) is in charge of issuing assessments on all Frontex’s assistance to non-EU countries. This includes identifying fundamental rights challenges and possible fundamental rights violations or risks thereof.
13. Frontex also said that the FRO produced a Fundamental Rights Due Diligence Procedure on Frontex Cooperation with Third Countries (‘Due Diligence Procedure’), which the FRO applies in its opinions/observations/assessments (FRO’s assessments’). The FRO’s assessments issued before and during Frontex’s cooperation activities, are all based on the Due Diligence Procedure. Before November 2022, the FRO had not carried out any assessment of the Risk analysis cells [20] in African countries. However, in November 2022, Frontex requested the FRO to perform a HRIA for each established cell.
14. Frontex attached to its reply the Due Diligence Procedure, the FRO’s assessments, and five serious incident reports related to Frontex’s aerial surveillance in the Central Mediterranean Sea.[21]
15. In its further reply, Frontex listed the activities on which it consults the FRO: working arrangements; cooperation plans based on the arrangements; technical assistance and capacity-building projects at the programming and implementation stage; and operational plans of joint operations. In addition, Frontex may request the FRO to provide an assessment for other ad hoc activities. There is currently no formal procedure or practice in place to identify such activities. Frontex has a regular and open dialogue with the FRO to collectively identify when such assessments should be requested. The documentation that is shared with the FRO is defined on a case-by-case basis. Frontex strives to ensure transparency and to facilitate the work of FRO to ‘the best extent possible’.
The Ombudsman's assessment
16. The Ombudsman has already expressed her view about the need to carry out a human rights impact assessment before the EU engages in transfers of surveillance techniques and of related capacity building to non-EU countries. [22] Where Frontex provides support[23] for the border management and migration authorities of non-EU countries with poor human rights records or systemic human rights abuses, including support involving the transfer of surveillance capabilities, this too should be subject to a prior, standalone human rights impact assessment (HRIA). Such HRIAs should be specifically designed, taking into account the nature of surveillance capabilities being transferred, so as to allow for the potential negative effects on human rights to be identified and to provide for mitigation measures.[24]
17. The objective of a HRIA is, in the first place, to identify the impact of a Frontex activity on the human rights of persons potentially affected by this activity. In other words, in a proper HRIA exercise, human rights impacts should be assessed from the perspective of risk to people. This does not mean that it is not also important to assess the risks for Frontex of non-compliance with law[25] and of risks to its reputation if it undertakes specific activities vis-a-vis non-EU countries. However, human rights should constitute not only the benchmark for measuring the outcome of support provided by Frontex to non-EU countries but also for evaluating that support from the perspective of the persons potentially affected.
18. Frontex’s replies indicate that, apart from its engagement in Risk analysis cells in Africa[26], it does not carry out a standalone HRIA before if provides support to non-EU countries. However, the FRO makes assessments concerning its cooperation with non-EU countries.
19. The question now is whether the FRO’s assessments concerning Frontex’s cooperation with non-EU countries use in essence the same methodology as a HRIA. If so, they could be considered to constitute an acceptable alternative to a standalone HRIA. The Fundamental Rights Due Diligence Procedure on Frontex Cooperation with Third Countries (‘Due Diligence Procedure’), which is set out in an internal Frontex document[27], recommends an assessment with a methodology very comparable to the essential elements of a HRIA.[28]
20. In accordance with the Due Diligence Procedure, all the FRO’s assessments of Frontex’s activities in non-EU countries which the Ombudsman inquiry team examined provide an expert overview of the human rights issues in a non-EU country with which Frontex intends to cooperate and their potential implications on Frontex’s legal liability and reputation once the cooperation starts.[29] Most importantly, the assessments also include appropriate recommendations for mitigating measures. Therefore, and although some shortcomings have been identified, the Ombudsman is satisfied that overall, the FRO’s assessments do constitute in substance an acceptable alternative to a standalone HRIA.
21. However, the Due Diligence Procedure could benefit from being updated. Regarding the scope of application of the Due Diligence Procedure, the document describing the Due Diligence Procedure differs from the statement in the 2022 Annual Report of the FRO. That report states that the Due Diligence Procedure also applies to Frontex’s activities based on EU ‘status agreements’[30] with non-EU countries on operational cooperation in border management. Given the nature of some of the possible activities of Frontex staff under status agreements, the Ombudsman considers that it would be very important that the FRO assess the potential human rights impacts of these activities prior to the support being given.[31] This should be in addition to the Commission’s assessment of the fundamental rights situation in the non-EU country concerned[32]. Further monitoring by the fundamental rights monitors[33] may provide elements for the FRO’s periodical assessment of risks for human rights during these activities.
22. Moreover, while the FRO’s assessments of the human rights impacts of Frontex’s activities in non-EU countries are summarised in the FRO’s annual reports, which are publicly available, the information available in the reports is limited. In addition, the Due Diligence Procedure is not publicly available and so the public cannot scrutinise how it is applied. This is problematic. [34]
23. Finally, as regards Frontex’s activities undertaken in the context of its cooperation with non-EU countries that do not require the FRO’s advice (ad hoc activities) [35], the Ombudsman notes that, according to the Fundamental Rights Action Plan[36], these activities should nonetheless be “designed [by] taking into consideration [the] FRO’s advice (where received)”. This implies that the FRO should conduct a prior assessment of the human rights impact for each ad hoc activity. If Frontex believes the decision to ask the FRO for such advice is discretionary, the principles of good administration would require that Frontex adopt clear criteria on how it uses this discretion, so it is clear to the public why Frontex may not have asked the FRO to conduct such an assessment for a given activity.
24. Thus, FRO’s assessments could be improved to be better in line with the Due Diligence Procedure. The FRO can thus play an even more important role in assessing the potential human rights impacts of Frontex’s support to non-EU countries, including where this involves the transfer of surveillance technologies and the impacts of this. The Due Diligence Procedure should be updated and published. Frontex should establish internal criteria when to ask the FRO for assessments on its ad hoc activities.
25. In light of the above conclusions, the Ombudsman makes suggestions for improvement below.
Conclusion
The Ombudsman considers that no further inquiries are justified.
The complainants and Frontex will be informed of this decision.
Suggestions for improvement
1) The FRO’s assessments of Frontex’s activities in and support to non-EU countries should always be based on the Due Diligence Procedure. They should systematically identify the human rights impacts of Frontex’s concrete activities on persons potentially affected by them. The FRO should consider using the template set out in the Due Diligence Procedure to increase the clarity of its assessment documents. If in conducting these assessments, the FRO consults local stakeholders and/or potentially affected groups, and include the information gathered from such consultations in the assessment documents, the consultation should be mentioned in these documents.
2) The scope of application of the Due Diligence Procedure should be in line with what is set out in the FRO’s 2022 Annual Report where the FRO stated that the Procedure applies to Frontex’s activities based on EU ‘status agreements with non-EU countries on operational cooperation in border management’.
3) The Due Diligence Procedure should be published on Frontex’s website. In the FRO’s annual reports, there should be more extensive summaries of the FRO’s opinions, observations and assessments issued in the context of Frontex’s cooperation with and support to non-EU countries.
4) For ad hoc Frontex activities in the context of its cooperation with non-EU countries, Frontex should draw up criteria as to when the FRO should be asked for prior advice. If Frontex engages in transfers of surveillance techniques and of related capacity building to non-EU countries with poor human rights records or systemic human rights abuses, a prior assessment of the human rights impact should always be carried out. This could be by means of the FRO’s assessments. Such activities should be subject to ongoing monitoring.
Emily O'Reilly
European Ombudsman
Strasbourg, 08/12/2023
[1] The complaint to the Ombudsman was submitted jointly by: Privacy International, Access Now, Border Violence Monitoring Network, Homo Digitalis, International Federation for Human Rights, and Sea-Watch.
[2] Article 74 of Regulation 2019/1896 on the European Border and Coast Guard: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019R1896
[3] https://home-affairs.ec.europa.eu/policies/schengen-borders-and-visa/effective-management-external-borders_en
[4] Article 75 of Regulation 2019/1896
[5] https://home-affairs.ec.europa.eu/policies/schengen-borders-and-visa/border-crossing/eurosur_en
[6] https://frontex.europa.eu/media-centre/news/news-release/africa-frontex-intelligence-community-meets-in-senegal-sRP1tC
[7] https://frontex.europa.eu/media-centre/news/news-release/frontex-opens-risk-analysis-cell-in-nouakchott-ZcNIBL
[8] https://frontex.europa.eu/media-centre/news/news-release/frontex-helps-train-libyan-coast-guard-zxRCnE
[9] Article 73(4) of Regulation 1869/2019. See https://frontex.europa.eu/we-build/other-partners-and-projects/non-eu-countries/
[10] https://prd.frontex.europa.eu/?form-fields%5Bsearch%5D&form-fields%5Bdate-from%5D&form-fields%5Bdate-to%5D&form-fields%5Bdocument-category%5D%5B0%5D=292&form-fields%5Boffset%5D=0&form-fields%5Bform-post-id%5D=N2QwYTQ2MWJhMWQxNzhhYWM0NmQ5NWNkNmViMjgyMjZNVFk0T0E9PTMxNDk4NjUyMDViODVjNDI3NmVmNzdhOWYwODJmZGIxYjE4M2JhYmVmNjU2MzczNTAx&form-fields%5Bmodule-post-id%5D=ZmRlYTk1NjkwOWFiYWNmMGZiMGU0ZDRhMTk4MDNmMTBNemt3TVE9PTY4NTE4ODMzMmU5MTIxYWZhY2RkYmE5YTI2N2E1NzZjOTc0NmUyMTAwODM2MzE5MzA1
[11] https://www.eeas.europa.eu/eucap-sahel-niger/eucap-sahel-niger-european-union-capacity-building-civilian-mission_und_en
[12] https://www.ombudsman.europa.eu/en/opening-summary/en/161487
[13] https://www.ombudsman.europa.eu/en/doc/correspondence/en/177527
[14] Article 2 of the Treaty on European Union (TEU): ‘the EU founding values are (...) respect for human rights’; Article 3 TEU: the EU in ‘its relations with the wider world ’must contribute to ‘the protection of human rights’; Article 21.1 TEU: among the principles inspiring the EU external action are ‘the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity’; Article 21.3 TEU: the EU has a duty to respect this principle in the development and in the implementation of the external aspects of its policies other than external action; and Article 205 of the Treaty on the Functioning of the EU (TFEU): the EU’s international actions are to be guided by the principles laid down in Article 21 TEU.
[15] Articles 10, 71, 73 of Regulation 1896/2019 provides for Frontex’s cooperation with non-EU countries (trainings, operational deployment of border management teams) in compliance with fundamental rights. The FRO should provide opinions on the Frontex assistance projects in non-EU countries and on working arrangements (Art. 109 of Regulation 1869/2019).
[16] Sea-Watch, So-called Libyan Coast Guard firing shots at migrant boat in distress (5 July 2021), https://seawatch.org/en/libyan_coast_guard_shots_fired; Benjamin Bathke, When helping hurts – Libya's controversial coast guard, Europe’s go-to partner to stem migration (InfoMigrants, 24 July 2019),
https://www.infomigrants.net/en/post/18196/when-helping-hurts-libya-s-controversial-coast-guardeurope-
s-go-to-partner-to-stem-migration; Sally Hayden, Calls for inquiry after migrants captured by Libyan coast guard shot dead (The Irish Times, 29 July 2020), https://www.irishtimes.com/news/world/europe/calls-for-inquiry-after-migrants-captured-bylibyan-coast-guard-shot-dead-1.4317019; Amnesty International, Libya 2020, https://www.amnesty.org/en/countries/middle-east-and-northafrica/libya/report-libya
[17] Report of the Independent Fact-Finding Mission on Libya (A/HRC/50/63, 27 June 2022), §75
[18] https://www.ohchr.org/sites/default/files/Documents/Countries/LY/LibyaMigrationReport.pdf
[19] Frontex classified its reply as confidential with a consequence that the Ombudsman could not share it with the complainants or publish it.
[20] See paragraph 3 of this decision.
[21] Frontex classified all these documents as confidential.
[22] See the Ombudsman decision in case 1904/2021/MHZ, paragraph 25, at: https://www.ombudsman.europa.eu/de/decision/en/163491
[23] Support means for instance training, advisory services, capacity and institution-building and other forms of technical cooperation for the purpose of enhancing the operational capabilities of border and migration authorities of non-EU countries in the context of the European integrated border management, as well as operational assistance in strategic or tactical planning.
[24] The European Parliament made a similar recommendation. It said that each HRIA in the field of EU development aid should include a monitoring procedure on the potential abuse of surveillance https://www.europarl.europa.eu/doceo/document/TA-9-2023-0244_EN.html , para. 97.
[25] The Charter of Fundamental Rights of the European Union, and relevant international law, including the 1951 Convention relating to the Status of Refugees, the 1967 Protocol thereto, the UN Convention on the Rights of the Child and obligations related to access to international protection, in particular the principle of non-refoulement (Article 80 of Regulation 2019/1869).
[26] See paragraph 3 of this decision.
[27] Frontex classified the Due Diligence Procedure as confidential.
[28] Para. 25 of the European Ombudsman’s decision in case 1409/2014/MHZ: https://www.ombudsman.europa.eu/nl/decision/en/64308
For a better understanding of the methodology used in HRIAs see:
1)‘The European Commission’s Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives’ at: https://circabc.europa.eu/ui/group/7fc51410-46a1-4871-8979-20cce8df0896/library/991d8e1d-dbaa-49d6-8582-bb3aab2cab48/details;
2) The European Commission staff working paper ‘Operational Guidelines on taking into account of Fundamental Rights in Commission’s Impact Assessments’ at: https://commission.europa.eu/system/files/2017-09/opperational-guidance-fundamental-rights-in-impact-assessments_en.pdf
[29] The Due Diligence Procedure identifies as its objective the identification and assessment by the FRO of “risks of Frontex becoming involved in potential fundamental rights breaches when cooperating with non-EU countries”. Action 68 of the Action Plan states: “By mid-2022, establish a fundamental rights due diligence procedure to assess fundamental rights records of third-country IBM and asylum authorities prior to concluding working arrangements”.
[30] In line with Articles 73 and 76 of Regulation 2019/1896, status agreements are agreements that must be concluded with non-EU countries if there is a deployment of Frontex standing corps and joint operations in a non-EU country, , where the members of the teams will exercise executive powers. Frontex staff may for instance support the staff from the authorities of non-EU countries in performing border checks at crossing points and preventing unauthorised entries. The status agreements are initiated and negotiated by the European Commission, with authorisation of the Council of the EU and consent of the European Parliament. These are international agreements concluded by the EU with non-EU countries on the basis of Article 218 of the Treaty on the Functioning of the European Union.
[31] Article 73.1 of Regulation 2019/1896: ”(...) the Agency shall comply with Union law (...) including where cooperation with third countries takes place on the territory of those third countries”. The EU has so far negotiated status agreements with Albania, Bosnia and Herzegovina, Moldova, Montenegro, Republic of North Macedonia, and Serbia. https://www.consilium.europa.eu/en/infographics/border-management-agreements-third-countries/
[32] Recital 88 of Regulation 2019/1896.
[33] In accordance with Article 110 (3) of Regulation 2019/1896.
[34] The Special Rapporteur of the United Nations on the right to food in his report ‘Guiding principles on human rights impact assessments of trade and investment agreements’ refers to four minimum conditions, which a HRIA process must fulfil: transparency; inclusive participation; expertise and independence. (https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-59-Add5_en.pdf
[35] Article 109(2)f ; Article 46(4) and (5) Regulation 2019/1896
[36] https://prd.frontex.europa.eu/document/management-board-decision-61-2021-adopting-the-fundamental-rights-action-plan-for-the-implementation-of-the-fundamental-rights-strategy/ (action 69)