Francesca Romana Partipilo, PhD candidate in International Law at Sant'Anna School of Advanced Studies (Pisa)
Photo credit: Rock Cohen, via Wikimedia commons
(see also critique of the judgment, by Melanie Fink and Jorrit Rijpma)
(see also critique of the judgment, by Melanie Fink and Jorrit Rijpma)
On the 6th of September, the EU General Court dismissed a claim filed by a Syrian family who alleged to have suffered material and non-material damages – consisting in feelings of anguish, fear and suffering – at the hands of Frontex on the occasion of a return operation jointly carried out by the EU agency and the Hellenic Republic on the 20th of October 2016.
The case was filed in 2021, five years after the Syrian family was deported by plane to Turkey from the Greek island of Kos, despite having filed a request for international protection. The applicants, arrived on the island of Milos (Greece) on 9 October 2016 and subsequently deported to Turkey, maintained that, if Frontex had not infringed its obligations relating to the protection of fundamental rights in the context of joint operations – in particular the principle of non-refoulement, the right to asylum, the prohibition of collective expulsion, the rights of the child, the prohibition of inhuman and degrading treatment, the right to good administration and to an effective remedy – they would not have been unlawfully returned to Turkey and they would have obtained the international protection to which they were entitled, given their Syrian nationality and the situation in Syria at the material time. However, the Luxembourg-based court decided that, since Frontex does not have the competence to assess the merits of return decisions or applications for international protection, the EU agency cannot be held liable for any damage related to the return of refugees to Turkey. As explained by the EU General Court, Member States alone are competent to assess the merits of return decisions and to examine applications for international protection (para. 65). The judges added that, as regards return operations, under Article 27(1)(a) and (b) and Article 28(1) of Regulation 2016/1624, Frontex’s task is only to provide technical and operational support to the Member States and not to enter into the merits of return decisions.
At first glance, the judgment reveals an argumentative short-circuit. Whilst the examination of asylum applications undeniably falls outside Frontex’s competence, being attributed by EU law to the Member States of the EU, the imperative to respect human rights is contained in Frontex Regulation and in several other documents referring to the agency’s activities, thus representing a legal obligation which is binding on the agency. The fact that Frontex lacks the competence to examine the merits of asylum applications or return decisions does not exempt the EU agency from the respect of migrants’ human rights. As noted by the General Court itself (para. 63), “Regulation 2016/1624, in particular Article 6(3) thereof, provides that [Frontex] shall contribute to the consistent and uniform application of Union law, including the Union acquis concerning fundamental rights, at all external borders”. In addition, the Court stressed that “Article 34(1) of that regulation states that the European Border and Coast Guard shall ensure the protection of fundamental rights in the performance of its tasks under this Regulation in accordance with relevant Union law, in particular the [Charter of Fundamental Rights], relevant international law – including the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol thereto and obligations on access to international protection, in particular the principle of non-refoulement’.”
In addition to the legal instruments binding Frontex to the respect of fundamental rights in its operations, references to human rights have been incorporated into Frontex official documents or press releases since the first years of its operations. For instance, in the annual report for 2008, for the first time, Frontex specified that “[f]ull respect and promotion of fundamental rights […] is the most important corner stone of modern European border management”. Similarly, the 2009 annual report stated that “full and sincere respect of fundamental rights is a firm and strategic choice of Frontex”. More recently, the now disgraced former director of Frontex, Fabrice Leggeri, declared that Frontex was “determined to uphold the highest standards of border control within [its] operations [and] to further strengthen the respect of fundamental rights in all [its] activities”.
In the light of these observations, it needs to be noted that Frontex’s actions in the case of WS and Others v Frontex could have resulted in chain (or indirect) refoulement. Considering that Turkey adopts substantial geographical limitations to the definition of refugee contained in the Refugee Convention, the country may not be considered a “safe third country” where asylum claimants can effectively apply for international protection. In fact, at the time of the ratification of the Additional Protocol to the Refugee Convention, in 1968, Turkey opted for a geographical limitation pursuant to Article 1b of the Convention, limiting the scope of the Convention to “persons who have become refugees as a result of events occurring in Europe”. Consequently, only asylum-seekers fleeing “events occurring in Europe” can enjoy refugee status in Turkey. This is confirmed by the circumstance that Turkey does not grant the status of refugees to people fleeing the war in Syria, but only offers them a form of temporary protection, pursuant to the Turkish Law on Foreigners and International Protection.
It should be noted that Turkey is a signatory of the European Convention of Human Rights, and thus legally bound by Article 3, prohibiting torture and inhuman or degrading treatment or punishment. As well known, in Soering v The United Kingdom the ECtHR established that, pursuant to Article 3, expulsion to torture is never permitted, even in cases where the returnee is not an asylum-seeker or refugee. Accordingly, Article 3 ECHR could have represented a solid legal basis for the protection of the applicants in the case of WS and Others v Frontex, even in the absence of a formal refugee status. Nonetheless, it should also be recalled that, in July 2016, following a failed coup, Turkey had declared a state of emergency and submitted a formal notice of derogation from the ECHR, under Article 15 of the ECHR. Whilst Article 3 ECHR belongs to the list of non-derogable rights, Turkey exploited the state of emergency to introduce a series of amendments to the Law on Foreigners and International Protection, including substantial changes relating to deportation orders and the suspensive effect of appeals against such orders. As a result of the amendments introduced in 2016, a deportation order could be issued at any time to certain applicants/holders of temporary protection (e.g. people suspected of being supporters of a terrorist organization or people who posed a public security threat, in the eyes of the government). For these groups of people, the appeal procedure no longer had a suspensive effect, therefore increasing the risk of refoulement, as noted by Amnesty International. As a consequence, it appears evident that people forcibly expelled to Turkey in 2016 could have suffered chain (that is indirect) refoulement to their countries of origin. Interestingly, this danger was explicitly acknowledged by the EU General Court itself, in the paragraph of the judgment where the Court noted that applicants feared “being returned to Syria by the Turkish authorities” (para. 68). Finally, it has been repeatedly noted that “procedural safeguards that are in place within the EU are not applicable to Turkey, leading to instances where the guarantees to the right to life and prohibition against torture are denied in direct violation of the principle of non-refoulement in the human rights context”. On the basis of such observations, it is evident that Frontex’s return operation was, at the very least, problematic under both EU and international law.
Under a different perspective, the case of WS and Others v Frontex reveals that the responsibility for human rights violations at EU borders may arise as a result of joint actions of States and international organizations (or their agencies). In these instances, interesting questions arise regarding the rules of attribution of conduct, the content and implementation of international responsibility. In the case at hand, while Frontex was under the legal obligation to respect the human rights of asylum-seekers under its jurisdiction and the principle of non-refoulement, Greek authorities had the duty to examine their application for international protection. In fact, as recalled by the European Court of Human Rights in the case Sharifi v. Italy and Greece (appeal no. 16643/09), failure to access the asylum procedure or any other legal remedy within the port of disembarkation constitutes a violation of Article 4 of Protocol no.4 (enshrining the prohibition of collective rejections). In that judgement, the Court highlighted the link between the collective expulsions of the applicants and the fact that they had been prevented from applying for international protection.
It should be mentioned that Greece has not ratified Protocol no.4 of the ECHR and therefore cannot be held responsible of a violation of its Article 4. Nonetheless, although not formally bound by Protocol no.4, Greece could still be held responsible of a violation of the Asylum Procedures Directive as well as the Dublin Regulation III, requiring Member States to allow asylum-seekers effective access to an asylum procedure which hinges on exhaustive and comprehensive information, as stressed by the ECtHR in Sharifi and Others v. Italy and Greece (para. 169).
With regard to the issue of shared responsibility, it is interesting to note that, alongside the complaint against Frontex before the EU General Court, the Syrian family also filed a complaint against the Hellenic Republic before the European Court of Human Rights. In this submission, the family alleged the violation of Articles 5(1), (2), and (4) of the European Convention on Human Rights, Article 4, Article 3, and Article 13 taken together with Articles 3 and 5 of the Convention. This choice was probably motivated by the circumstance that – as stated above – Greece has not ratified Protocol No. 4 of the ECHR. Apparently, the submission resulted in a friendly settlement between the family of asylum-seekers and the Hellenic Republic, pursuant to Article 39 of the Convention.
In conclusion, whilst human rights activists hoped that the case of WS and Others v Frontex would set an important precedent, the judgment of the General Court is both worrying and discouraging. It appears that Frontex got away – once again – with human rights violations. Since its creation, in fact, Frontex has received a considerable amount of criticism. In particular, observers and legal scholars have raised questions about whether and how core fundamental rights, particularly the right to life, the respect of human dignity, the right to an effective remedy and the right not to be sent back to torture, persecution and inhumane treatment (the principle of non-refoulement), are safeguarded at Europe’s external borders. In June 2021, the ONG Sea Watch published a report where it maintained that “[a]erial reconnaissance enables Frontex to gather extensive knowledge about developments in the Central Mediterranean Sea and relay information about boats in distress to the “competent authorities” […] When spotting a boat in the Libyan search and rescue zone, Frontex […] often only informs the Libyan authorities […], despite NGOs or merchant vessels also being in the vicinity. By forwarding the information to the Libyan Joint Rescue Coordination Centre and sometimes even directly guiding the so-called Libyan Coast Guard to the position of a boat, Frontex coordinates and facilitates the interceptions and pullbacks of people in distress to Libya”. Regrettably, the case of WS and Others v Frontex will be remembered as just another episode in which the EU agency disregarded its obligations and violated asylum-seekers human rights at European external borders without incurring in legal consequences.