II. Protection Crisis in Greece
On September 21, 2010, the United Nations High Commissioner for Refugees (UNHCR) declared the asylum situation in Greece a “humanitarian crisis.”  UNHCR said that Greece’s lack of a functioning asylum system had “important implications for the wider EU.” 
Not long after the UNHCR’s declaration, on November 2, Frontex deployed RABIT “guest officers” (as they are called by Frontex) in the Evros region for the first time in an operation that lasted until March 2. After the RABIT deployment ended, Frontex’s presence in Evros continued, performing the same tasks under the title “Joint Operation Poseidon Land 2011.”
The Making of an Emergency
The “humanitarian crisis” UNHCR described had been developing for a number of years as Greece became the major gateway for undocumented migrants and asylum seekers into the EU. This emergency developed out of a confluence of Greece’s geographic location and porous borders, the chronic mismanagement of its asylum system, and the fundamental problems with its migrant detention system. But the EU added greatly to Greece’s burden with the Dublin II Regulation, which assigns responsibility for examining asylum claims to the first EU country in which an asylum seeker sets foot. Asylum seekers who travel to other member states can be returned to the country where they first entered the EU. This arrangement exposes member states on the external borders of the EU to disproportionate responsibility for assessing the asylum claims of irregular migrants entering the EU by land. Given Greece’s location, Dublin II exacerbated the country’s large backlog of asylum applications and appeals, while adding strains to its overcrowded detention facilities.
Frontex explained how Greece became the gateway to Europe in its “risk analysis” report for 2010:
Following decreased departures from Libya and Western Africa, Turkey has now become the most important transit country for illegal migration…. The bilateral collaboration agreements with third countries of departure on the Central Mediterranean route (Italy with Libya) and the Western African route (which Spain signed with Senegal and Mauritania) had an impact on reducing departures of illegal migrants from Africa…. As a corollary to the sharp decreases registered in Italy and Spain, the number of detections of illegal border crossings in Greece rose from 50% of the total EU detections to 75% of the total.
In its first and second quarterly reports of 2010 Frontex further identified "a continued and intensified shift from the Greek sea border to the Greek land border with Turkey." These analyses culminated in Frontex’s November 29, 2010 statement declaring that "Greek external borders … now account for 90 percent of all detections of illegal border crossing along the EU external borders."
Arias Fernández of Frontex explained that the agency’s RABIT deployment was set in motion “because of a drastic increase of numbers [of detected migrants] and because the humanitarian situation also made the European Commission encourage Greece to ask for our help.”
Preparing for the RABIT Deployment
Frontex was well aware not only of the increase in irregular entries but also of the deepening protection crisis in Greece. While preparing for the RABIT 2010 deployment in Evros, a Frontex official visited Greek detention centers in October 2010 and the agency considered the possible implications of a land deployment in Greece and of its involvement in a broken system.
The Frontex officer, Leszek Szymanski, head of the Operational Management Component in the Frontex’s Piraeus office, visited the detention center of Fylakio, as well as other detention centers in October 2010, and found that the facilities were overcrowded (he told Human Rights Watch that around 700 people were detained in Fylakio at the time of his visit, almost twice that facility’s capacity of 386). Szymanski also visited other detention facilities, including the Tychero detention facility which, as we saw in our later visit to Tychero, houses detainees in large, dimly lit rooms with cement beds.
Frontex’s decision to visit the detention facilities suggests that the agency understood that their conditions were relevant to its task. The agency told Human Rights Watch that it knew about the “difficult” conditions since the beginning of the agency’s presence in the area in October 2010.
The conditions that existed in Fylakio at the time of Szymanski’s fact-finding mission were indeed nothing new. Various human rights groups, including Human Rights Watch, have repeatedly criticized conditions in Greek detention centers as failing to meet international standards throughout the past decade. In January 2011 the European Court of Human Rights (ECtHR) reviewed the vast reporting literature that had accumulated on Greece since 2005, summarizing its findings as follows:
All the centers visited by bodies and organizations that produced the reports listed above describe a similar situation to varying degrees of gravity: overcrowding, dirt, lack of ventilation, little or no possibility of taking a walk, no place to relax, insufficient mattresses, no free access to toilets, inadequate sanitary facilities, no privacy, limited access to care. Many of the people interviewed also complained of insults, particularly racist insults, proffered by staff and the use of physical violence by guards. 
Manfred Nowak, the former UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, visited the Fylakio detention center within days of Szymanski’s visit. The situation he describes there on October 12, 2010 would have been essentially the same as on the day that Szymanski was present:
Due to the high occupancy over the last months, the center was in a very poor state at the time of the visit. When entering the building the detainees became very agitated and initially the officers were reluctant to open the cells. The conditions of detention were extremely poor. There were not enough beds for each detainee forcing many to share beds or sleep on the floor. The beds, blankets and pillows were very dirty. The sanitary installations were in a very poor state with dirty walls, doors and water running out the washrooms and toilets. The cells were humid and the floors dirty. The cells were poorly lit, many ceiling lamps were broken and there was almost no natural light. There was little space between the bunk beds allowing detainees to move around. They had no access to a yard and outdoor exercise.
The semi-open cell for the new arrivals was in the worst state. The bathroom appeared not to be cleaned for a long time. The toilets were clogged causing water and feces to stand in the washroom. The detainees defecated in the corridor of the washroom and the dirty water ran out of the bathroom in the sleeping cell causing unbearable smell. Consequently, many new arrivals preferred to sleep outside.
During that same time, Nowak also visited a number of police stations in Evros and found that they appeared to operate almost exclusively as migrant detention facilities rather than as conventional police stations. In all but one of the police stations he visited he found that foreign nationals were “detained in overcrowded, dirty cells, with inadequate sanitary facilities, no or insufficient access to outdoor exercise and inadequate medical attention,” He found these conditions “to amount to inhuman and degrading treatment, in violation of Articles 7 and10 of ICCPR.”
Kari Wahlström, head of the Frontex Operational Office in Greece, explained to us how, despite its knowledge that conditions in Greek detention centers had been characterized as inhuman and degrading, Frontex decided to go forward with the RABIT deployment:
The facts were known to us from the very beginning, but the pressure on the border grew. While knowing the conditions, it was still necessary to stop this, as the situation was not under control.
Human Rights Watch considers that at the preparatory stage in October 2010 Frontex had good reason to know that if its operations included the transfer of migrants to Greece custody this would lead to those people being subject to inhuman and degrading conditions in violation of fundamental rights enshrined in international and European law.
The RABIT operation began after Greece sent a request to the Frontex headquarters in Warsaw, as required by the RABIT Regulation. This was not an exclusively Greek initiative. According to Arias Fernández, the European Commission “encouraged” Greece to ask for Frontex’s help in view of the developing emergency in Greece. Frontex responded positively to this request and sent 175 border guards to Evros drawn from a pool of guards from other EU member states and participating non-EU states. On November 2, 2010, the operation got underway.
In addition to the border guards, Frontex sent material support including one helicopter provided by Romania; four buses provided by Austria, Hungary, and Romania; five minibuses provided by Romania, Austria, and Hungary; 19 four-wheel-drive patrol cars provided by Romania, Austria, Slovakia and Germany; nine vans with thermo-visual equipment provided by Austria, Bulgaria, Germany, and Hungary; and three office units (portable buildings) provided by Denmark.
Minibuses and buses were used to transport migrants to Greek detention facilities. Frontex set up the offices to use for nationality determination interviews (“screenings”) and for questioning migrants on smuggling and organized crime (“debriefing”) in four of the detention facilities: Fylakio, Tychero, Feres, and Didymoteicho. Frontex also covered the expenses of the RABIT operation.
When the operation started, a Frontex press release explained that the operation in Greece was to be exemplary from a human rights point of view:
Observance of fundamental rights and respect for human dignity are central components of all Frontex operations. At all stages of the operation the highest standards of ethical conduct and professionalism are expected from all participating officers. ‘Zero tolerance' policy to infringement of fundamental rights will be applied throughout the operation, particularly with regard to people in need of international protection.
In March 2011, coinciding with the end of the RABIT operation (which did not end Frontex presence in the area), Greece once again was subject to exceptionally strong international criticism. Several prominent human rights monitors laid out detailed accounts of inhuman and degrading treatment and lack of access to asylum. This time, the reports documented abuses that took place during a period in which EU agents were aiding the perpetrators.
The Committee for the Prevention of Torture
On March 15 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) issued a “Public Statement Concerning Greece.” The CPT painted a grim picture of the Greek situation of migrants and asylum seekers in Greece.
According to the CPT’s evaluation, the Greek government had not only failed to improve abusive conditions that CPT had warned about as early as 1997. The CPT report also charged that the Greek government had misrepresented the situation of migrants. According to the CPT’s evaluation, the conditions in Greek detention facilities for migrants may have reached their all-time worst at the height of Frontex’s RABIT deployment:
Regrettably, the findings made during the CPT’s most recent visit to Greece, in January 2011, demonstrated that the information provided by the authorities was not reliable. Police and border guard stations continued to hold ever greater numbers of irregular migrants in even worse conditions. For example, at Soufli police and border guard station, in the Evros region, members of the Committee’s delegation had to walk over persons lying on the floor to access the detention facility. There were 146 irregular migrants crammed into a room of 110m2, with no access to outdoor exercise or any other possibility to move around and with only one functioning toilet and shower at their disposal; 65 of them had been held in these deplorable conditions for longer than four weeks and a number for longer than four months. They were not even permitted to change their clothes. At times, women were placed in the detention facility together with the men. Similar conditions existed at almost all the police premises visited by the CPT’s delegation. In the purpose-built Fylakio special holding facility for foreigners in the Evros region, irregular migrants, including juveniles and families with young children, were kept locked up for weeks and months in filthy, overcrowded, unhygienic cage-like conditions, with no daily access to outdoor exercise.
The EU Fundamental Rights Agency
The EU Fundamental Rights Agency’s “Thematic Situation Report of March 8, 2011” also made significant findings on the emergency in Greece. As the FRA explained, “The situation at the EU’s external land border between Greece and Turkey constitutes a fundamental rights emergency. People, including pregnant women and families with small children, are held in inhumane conditions.”
The report also specifically references Frontex. Leszek Szymanksi, the Frontex official who had visited the Greek migrant detention facilities in Evros prior to the Frontex deployment, was in the region when the FRA was carrying out its inspections. In light of the cooperation agreement between Frontex and the FRA, Szymanksi accompanied FRA during some parts of its visits to detention centers in late January 2011, including Fylakio. The agency evaluated the RABIT deployment and found its presence to have a positive impact in some areas, for example saying that its engagement in processing of individuals “seem[s] to have reduced the risk of informal push-backs to Turkey for persons who have crossed irregularly into Greece.”
The FRA report is highly critical of the inhuman and degrading conditions in detention centers in Greece, but declined to address Frontex’s role in transferring migrants to authorities who will subject them to inhuman and degrading detention, saying that this falls outside its mandate:
The operational assistance provided by the EU through Frontex covers only initial processing and does not impact on the most critical fundamental rights concern – the inhuman conditions in which persons are currently being held, because the reception of persons crossing the borders irregularly is seen as falling outside the mandate of Frontex.
FRA’s report on the rights emergency in Greece is a damning one and provides a useful critique and action plan of what is wrong in Greece. However the FRA missed an opportunity to address a significant contributing factor to the level of detainees held in inhuman and degrading conditions by failing to examine the role Frontex’s operations play in transferring migrants to detention centers with conditions that the EU rights agency characterized as inhumane.
Frontex Attempts to Reduce Violations in Detention
Having learned of the dire situation in the detention centers, Frontex attempted to help temporarily alleviate the crisis. Thus, for example, the agency offered Greece tents to relieve some of the pressure in the overcrowded detention centers. These tents, however, were found unfit for winter conditions and thus were not used.
When the RABIT deployment began, Frontex also approached the Greek government with an idea to house some of the migrants in a military base on one of the Greek islands. Furthermore, the agency raised the possibility that a particular sugar factory could be renovated and made into a detention center. As of February, Frontex informed us that these suggestions were "being processed," and that the Greek authorities had made no decision on them.
Because Frontex had demonstrated an interest in seeking practical solutions to address the problem of migrants in abhorrent detention conditions, Human Rights Watch wrote to Arias Fernández on December 7, 2010 urging his agency to press the Greek authorities to start transferring migrants to empty detention centers in other parts of Greece.
In a response dated December 9, 2010, Arias Fernández repeated the position Frontex consistently takes: "We have no direct role in the immigration or asylum systemsof member states and especially not in detention.” He also said, however:
I raised the question of the difficult conditions in the detention centers with the Hellenic Police authorities last week during my visit to Orestiada. Frontex also sent a letter to the Greek Management Board representative drawing their attention to the problem. We have also made the European Commission aware of the situation, in order to seek possible support from the EC to tackle this problem.
Separate from the RABIT deployment in Greece, in March 2011, Frontex adopted a “Fundamental Rights Strategy” for its operations as a whole. The preamble to the strategy sets out that Frontex considers respect and promotion of fundamental rights to be “unconditional and integral components of effective integrated border management.” Indeed, the strategy takes important steps towards accountability: it notes that the Court of Justice of the European Union (CJEU) currently has authority to review “the legality or provide interpretation to guide the acts of the EU Agencies which in turn are obliged to respect fundamental rights in all their activities” and that “Frontex should therefore also take into account the relevant EUCJ case-law in its activities.”
Likewise, the strategy states that when the EU accedes to the European Convention of Human Rights the European Court of Human Rights will also be able to review the actions of the EU and “Frontex should therefore also take into account the relevant ECtHR case-law in its activities.”
As well as referring to the obligations under the Charter of Fundamental Rights of the EU, the strategy states, “All human rights instruments adopted by the United Nations and the Council of Europe Conventions as ratified by all the Member States are applicable.”
The document emphasizes that Frontex shares responsibility with member states, but distinguishes between member state responsibility for their actions and Frontex’s responsibility for coordinating those actions. Article 13 of the strategy reads:
Member States remain primarily responsible for the implementation of the relevant international, EU or national legislation and law enforcement actions undertaken in the context of Frontex coordinated joint operations (JOs) and therefore also for the respect of fundamental rights during these activities. This does not relieve Frontex of its responsibilities as the coordinator and it remains fully accountable for all actions and decisions under its mandate. Frontex must particularly focus on creating the conditions for ensuring compliance with fundamental rights obligations in all its activities.
 “UNHCR Says Asylum Situation in Greece ‘A Humanitarian Crisis,” UNHCR Briefing Notes, September 21, 2010, http://www.unhcr.org/4c98a0ac9.html (accessed March 22, 2010).
 Evros is officially designated as a Peripheral Unit belonging to the Periphery/Region of Eastern Macedonia and Thrace, but for ease of reading, we will refer to this as “the Evros region” throughout the report.
 Frontex, “RABIT Operation Ends, Replaced by JO Poseidon 2011,” Warsaw, March 3, 2011, http://www.frontex.europa.eu/newsroom/news_releases/art98.html (accessed March 22, 2011).
 Council Regulation (EC) No 343/2003, February 18, 2003 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:050:0001:0010:EN:PDF (accessed April 13, 2011) establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national, February 25, 2003. Human Rights Watch analyzed the problems with the Dublin-II Regulation on several occasions before, see: Greece/Turkey – Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union, November 2008, http://www.hrw.org/en/node/76211/section/8, p. 22.
 Human Rights Council, Mission to Greece Report submitted by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, March 4, 2011, A/HRW/16/52/Add.4, http://www.scribd.com/doc/50378215/Human-Rights-Council-Mission-to-Greece (accessed April 3, 2011) (Below: “Mission to Greece Report, March 4, 2011”).
 Frontex, Extract from Annual Risk Analysis 2010, March 2010, http://www.frontex.europa.eu/gfx/frontex/files/frontex_ara_public_version.pdf, p. 12 (accessed April 3, 2011).
 Frontex, “FRAN Quarterly Update” Issue 1, January-March 2010, p. 3, http://www.frontex.europa.eu/situation_at_the_external_border/art15.html (accessed April 4, 2011); Frontex, “FRAN Quarterly Update” Issue 2, p. 4, www.frontex.europa.eu/download/.../fran_q02_2010_public.pdf, (accessed April 4, 2011).
 “Current Migratory Situation in Greece,” Frontex Press Release, November 29, 2010, http://www.frontex.europa.eu/rabit_2010/background_information/ (accessed April 4, 2011).
 Human Rights Watch interview with Arias Fernández, December 1, 2010.
 Human Rights Watch interview with Kari Wahlström, head of Frontex Operational Office, with Leszek Szymanski and Gerald Baumkirchner, Piraeus, February 15, 2011. (Below:” Human Rights Watch interview with Wahlström and staff, Piraeus, February 15, 2011,” unless only a particular named person is being quoted.)
 In a letter of May 19, 2011 from Gil Arias Fernández, Deputy Executive Director of Frontex to Human Rights Watch, Frontex challenges that Szymanski, who was one of a group of experts sent to the Evros region, ever “examined or inspected” Greek detention centers. They do not however dispute that he visited the centers and witnessed the conditions.
 Frontex letter to Human Right Watch, unpublished document, March 29, 2011.
 See http://www.hrw.org/legacy/wr2k2/europe10.html. See also Human Rights Watch, Stuck in a Revolving Door, 2008, http://www.hrw.org/reports/2008/11/26/stuck-revolving-door; Human Rights Watch, Greece–Left to Survive: Systematic Failure to Protect Unaccompanied Migrant Children in Greece, 2008, http://www.hrw.org/reports/2008/12/11/left-survive.
 M.S.S. v. Belgium and Greece, judgment of January 21, no. 30696/09, http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=880339&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 , (accessed August 22, 2011), para.160.
 Mission to Greece Report, March 4, 2011, Appendix paras. 40 – 41.
 Mission to Greece Report, March 4, 2011, Summary p. 2.
 Ibid., Also at para. 47: “The Special Rapporteur concludes that the conditions in all facilities visited operating to detain aliens awaiting deportation, with the exception of the Mersidini Migration Detention Centre, were not in conformity with the UN Body of Principles for the protection of all persons under any form of detention or the UN Standard of Minimum Rules for the Treatment of Prisoners. The prolonged detention of aliens under the described conditions of detention amounts to inhuman and degrading treatment, in violation of Articles 7 and 10 ICCPR.” The International Covenant on Civil and Political Rights, adopted December 16, 1966, General Assembly Resolution 2200A (XXI), entered into force March 23, 1976 http://www2.ohchr.org/english/law/ccpr.htm (accessed April 25, 2011).
 Human Rights Watch interview with Kari Wahlstörm, February 15, 2011.
 Human Rights Watch interview with Arias Fernández, Orestiada, December 1, 2010.
 “Frontex to Deploy 175 Specialist Border-Control Personnel to Greece,” Frontex Press Release, October 29, 2010, http://www.frontex.europa.eu/newsroom/news_releases/art81.html (accessed April 3, 2011).
 Frontex letter to Human Rights Watch, unpublished document, March 29, 2011.
 “Greece RABIT 2010 Deployment,” Frontex Press Kit, October 29, 2010, www.frontex.europa.eu/download/.../rabit_2010_deployment.pdf (accessed April 3, 2011).
 See “Public Statement Concerning Greece,” European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) Press Release, March 15, 2011, http://www.cpt.coe.int/documents/grc/2011-10-inf-eng.htm (accessed April 4, 2011) (Below: “CPT Report”).
 Ibid., p. 3.
 The Fundamental Rights Agency, “Coping with a Fundamental Rights Emergency,” March 8, 2011, http://fra.europa.eu/fraWebsite/media/pr-080311_en.htm (accessed April 13, 2011) (Below: “FRA report”).
 See the Fundamental Rights Agency section, above.
 Interview with Wahlström, February 15, 2011.
 Ibid., FRA report, p. 9. For more on informal push-backs to Turkey, see Greece/Turkey – Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union, November 2008, pp. 32-47, http://www.hrw.org/en/reports/2008/11/26/stuck-revolving-door-0, and Unsafe and Unwelcoming Shores, October 2009, http://www.hrw.org/en/node/86025.
 FRA report, p. 9.
 Human Rights Watch interview with Arias Fernández, Orestiada, December 1, 2010.
 Human Rights Watch interview with Wahlström and staff, Piraeus, February 15, 2011.
 Human Rights Watch letter to Gil Arias Fernández, December 7, 2010.
 Frontex letter to Human Rights Watch, December 9, 20011.
 Frontex, “Frontex Fundamental Rights Strategy,” March 31, 2011, fx_fund_rights_strategy_endorsed_by_mb_31.03.2011.pdf available at http://www.frontex.europa.eu/newsroom/news_releases/art105.html (accessed April 14, 2011).
 Ibid., preamble.
 Ibid.,para. 7.
 Ibid., para. 6.