September 21, 2011

IV. Frontex’s Enforcement Role in Greece

Even though Frontex is not formally a decision maker, in practice it appears that guest officers deployed with Frontex were indeed making de facto decisions on the ground in Evros as they were involved in extensive activities, including the apprehension of migrants and in making nationality-determination recommendations that were, in effect, rubber-stamped by the Greek authorities.

Apprehensions

A principal purpose of the RABIT deployment was to enhance Greece’s capacity to control its land border with Turkey. Assisting Greece to apprehend undocumented migrants was one of the central ways that Frontex contributed to this goal. This included the deployment of 175 guest border guards as well as providing Greek police with equipment, funding, and advice on enforcement tasks.

View of the Feres detention center from the balcony where RABIT border guards were taking their break.

© 2010 Human Rights Watch

Arias Fernández told Human Rights Watch that Frontex goes on patrols, accompanied with at least one Greek officer. He said that in these patrols the “guest officers” are authorized to apprehend migrants and then transfer them to Greek counterparts who run the detention facilities. In our meeting with three Frontex officials, Kari Wahlström, Leszek Szymanski, and Gerald Baumkirchner, we raised the concern that when guest border guards apprehend migrants and transfer them to Greek detention centers they are thereby exposing the migrants to inhuman and degrading treatment. The three Frontex officials confirmed that the border guards from the RABIT deployment did, in fact, participate in such patrols, and Baumkirchner responded by saying:

You say that we should be doing things that we are not doing, or that we should stop doing what we are doing. But this is the procedure. We do things according to our mandate.[110]

As indicated above, these Frontex officers confirmed that they were aware of the generally unacceptable detention conditions that have been extensively documented. [111] The physical locations where Frontex border guards work also make it clear that they, too, are familiar with these conditions. In Feres detention center, for example, Human Rights Watch met with several Slovak border guards who were sitting there during the day. Although they were unwilling to engage with Human Rights Watch in substantive discussions about their work, they acknowledged that they participate in apprehensions and said they were fully aware of the situation at the detention center. As they were waiting for their nighttime patrol as part of the RABIT force, the Slovak border guards sipped coffee and chatted on a balcony overlooking the open-air part of the detention area, from where the detainees were visible.

Although Frontex has explained that RABIT border guards are under “instructions” from Greek authorities,[112] a strict chain of command is not evident when guest guards deployed by Frontex patrol alongside the Greek police. Although the Frontex Regulation holds that border guards participating in RABIT "shall wear their own uniform while performing their tasks,"[113] officials in the Frontex Operational Office in Piraeus explained that they are not under the command of their home authorities. Nevertheless, in some cases, they report back to their home authorities after going on patrol. During RABIT patrols guest border guards work under a Greek "shift leader," who is supposed to bear legal responsibility if anything goes wrong.[114] However, when asked if a shift leader is the commander of the patrol, Szymanski said:

The RABIT patrols are without a commander, but the shift leader leads the patrols. In comparison with a commander, a shift leader is slightly less high in the hierarchy. The shift leader is always Greek. He gives the running orders for the patrol. The member states are not involved in the patrol plans….They [the guest officers] don't have any contact with the member states during the shifts.[115]

In the absence of a clear agreement that displaces Greek authority over the patrols, primary responsibility for what happens during the patrols would normally fall on the Greek authorities because the patrols take place on Greek sovereign territory.

Nationality-Determination Interviews

Frontex’s involvement in border-enforcement includes providing personnel who conduct nationality-determination interviews, often referred to as screenings. The purpose of these interviews is to determine the interviewed person’s country of origin in order to facilitate his or her deportation. The screenings are conducted in detention facilities in Evros. Human Rights Watch observed three nationality-determination screenings conducted by one Frontex interpreter and two Frontex country experts. We observed Greek police bringing detainees to the Frontex team and not remaining during the course of the interviews. The three interviews that we observed in Tychero detention facility did not include any Greek police personnel and were carried out exclusively by Frontex agents. 

Since so few of the migrants in the Evros region (including many who will eventually lodge asylum claims in Athens) apply for asylum there, the nationality-determination interviews are the most substantive interview of any kind that most migrants experience. The FRA report observed, “The screening by the joint teams is the only extensive interview carried out with an irregular migrant at the border, unless he/she is interviewed by Frontex to obtain information about patterns of organized crime.”[116]

Nationality determination is important because Greece cannot deport nationals of certain countries and, therefore, also does not detain citizens of those countries once their national identities are established.[117] Manfred Nowak, the former UN special rapporteur on torture, describes the effects of this practice in his report from an October 2010 research mission in Greece:

The length of detention was witnessed to be dependent on the nationality of aliens. While aliens who cannot be deported (e.g. from Afghanistan, Somalia, Pakistan) were usually released within several days with an order to leave the country within 30 days, those that can principally be deported often had to wait up to several months in police custody. This created a feeling of extreme injustice and discrimination among the detainees.[118]

On January 20, 2000, Turkey and Greece signed an agreement,[119] according to which third-country nationals as well as nationals of Greece and Turkey who cross the Greek-Turkish border irregularly can be returned to the country from which they came. Since the two countries signed the agreement, they have consistently disagreed on its interpretation and application. As a general rule, Turkey accepts back only nationals of countries with which it has its own readmission agreements. At present, in practice, the agreement applies to Iraqi, Syrian, Iranian, and Georgian nationals.[120]

Irregular migrants who are not deportable under the Greece-Turkey readmission agreement may still be deported directly to their home countries. This can only happen if that country recognizes the deportee as their own national. There are particular countries, including some that do not have diplomatic missions in Greece, which do not cooperate with Greece in facilitating the deportation of their citizens.

As the commander in Tychero detention center explained, nationality determinations are a decisive factor affecting the duration of detention in these facilities because they also determine whom it will be possible to deport:

Keeping people depends on nationality. If they are nationals of a country neighboring Turkey, we apply for readmission. That can take up to six months. To nationals of other countries we give papers that tell them they have to leave the country within 30 days—after two or three days when the public prosecutor decides that they will not press charges.[121]

Because certain nationalities cannot be deported, some undocumented migrants claim to be members of these groups. Frontex’s nationality-determination screenings are meant to address this phenomenon.[122]

Although these screenings are not intended to identify international protection needs, in reality they are usually the most substantive interviews detainees have before being deported. Given the formidable barriers to lodging asylum claims in Greece (particularly in the Evros region), [123] if these interviews fail to facilitate access to the asylum process, they can result in the deportation of genuine refugees. A 17-year-old boy from Syria whom we met in Fylakio had what appeared to be a credible claim as a refugee. Despite alleging that he had been subject to persecution in Syria, he told Human Rights Watch that he did not want to apply for refugee status because the Greek police had told him that this would prolong his detention. He also said that the police had recorded his date of birth as two years older than he told them, thus rendering him as an “adult,” despite him stating that he was a child. Out of fear, misinformation, and distrust he initially lied about his national identity:

My brother had political problems in Syria, and therefore spent a long time as a political prisoner in Syria. The Mukhabarat [secret security police] also took my father and spoke with me as well. I also had bad economic problems and often did not have enough to eat in Syria.
I was 24 days in Venna. The Greeks already released all the people that came with me, and I don't know why they are continuing to hold me here. The smugglers told me to write down that I'm Palestinian, but now I'm still here. 
My registration was processed by three people including one translator. In the beginning I wrote down that I'm Palestinian. The translator started by talking with me in Arabic, but then switched to Kurdish. I told them that I'm 17 years old but for some reason they registered me as 19 years old.
Then after a few days I admitted that I'm Syrian, because I couldn't take it any longer.
Policemen told me that if I will apply for asylum, I will never get out of here. I therefore do not want to submit a request for refugee status. I was here 45 days and no one spoke with me about refugee status. There are people here who asked for refugee status and are here for 55-60 days.
I certainly do not want refugee status in this country. They are treating us worse than animals— there is not even enough water here for us to drink. We are almost never taken outside. Sometimes they take us for just a few minutes. They treat us with violence.[124]

Because these are, in practice, the only substantive interviews most migrant detainees in the Evros region have, they may also influence whether people who may in fact have legitimate refugee claims actually lodge claims for asylum. The Syrian boy believed that asking for asylum was not an option because it would mean extending his stay in intolerable detention. This boy was screened to determine his nationality but, as he said, “no one spoke with me about refugee status,” and he was not able to challenge his age determination.

We do not suggest that the failure to protect in this instance lies exclusively with Frontex nationality-determination screeners, but that the manner in which nationality-determination screenings operate in the Evros region is indicative of a misplaced emphasis on enforcement by all authorities involved in this process such that the protection needs of a self-identified unaccompanied child appear not to have been identified. The absence of any non-adversarial interview to inform this boy of his rights, to elicit his story of feared persecution, or to determine his best interests as a child—in combination with inhuman and degrading detention conditions—left him to make ill-informed decisions that potentially exposed him to risk of serious harm.

The Fundamental Rights Agency report points to the possibility of refoulement based on the combined lack of protection mechanisms and unbridled enforcement mechanisms, including the Frontex’s nationality-determination procedures:

While the Greek authorities are responsible for the readmission process, the fact that no system exists to determine if a person proposed for readmission is indeed in need of international protection, also puts the European Union at a grave risk: EU assistance is provided to determine nationality and hence to facilitate readmission without having a parallel assistance provided to identify whether persons to be readmitted are in need of international protection.[125]

It was not clear whether or how detainees can challenge the nationality-determination interviews, how the determination is recorded, or how errors in nationality determination might be identified and corrected, short of a country of presumed nationality not accepting the person back. 

Given the impact of Frontex nationality determinations on crucial issues such as length of detention, deportation, and asylum, the question arises at what point the Greek authorities accord Frontex’s nationality determination the force of an administrative decision and whether and how a person can challenge or appeal this decision. The Greek police personnel we discussed this with also told us that they treat Frontex’s nationality-determination screenings as determinative. The police commander in Tychero said: 

Frontex screens alone, and then they give the dates and papers. The police don't do screenings. We talk with them in English or Greek, but very much rely on the information that Frontex gives us.[126]

Spiridon Daskaris, police commander at the Feres detention center, provided a similar account:

The screening process is a Frontex process…. If someone says he’s from Palestine, they must know Palestine. They must know where it is and the map. They ask, “Who is your president? Where is your capital city?” They tell them: “you declare that you are Palestinian—say the truth.” They also try to get information on facilitators [smugglers].[127]

Georgios Polyzoidis, head of Alexandroupolis police directorate, emphasized that Frontex does the screenings and that the Greek authorities accept their nationality determinations:

Screenings are done by Frontex, we follow their opinion. But if the migrants insist on their identities they undergo another screening and sometimes even a third one. Only Frontex does the screenings. The screenings take no more than two months.[128]

Frontex maintains that their nationality determinations are not binding but rather are “presumptions” that the Greek government can accept or reject when it tries to deport people. As Arias Fernández put it:

The screening is not certain. The only way to know for sure where someone is coming from is when the country of origin confirms. Depending on the presumption, we request from countries confirmations and removal. The only thing we do is provide the template. The Greek authorities also have to be present in the interview. We make presumptive determinations for about 80 percent of the migrants, whereas for about 20 percent of them we don’t make presumptions at all.[129]

From what we saw however during one full workday chosen at random at Tychero, the Greek authorities, in practice, are not necessarily present in the interviews and rely exclusively on Frontex to make the nationality determinations. In a letter to Human Rights Watch that challenges this observation, Frontex’s Arias Fernández said, “The participation of Greek police officers was constant in most of the screening and de-briefing activities. It could have happened however that in a few cases Greek officers, due to urgent operational needs, were called to perform other duties, leaving the screening/de-briefing room for a certain time.”[130]

[110] Human Rights Watch interview with Gerald Baumkirchner, Pireaus, February 15, 2011.

 

[111]  Human Rights Watch Interview with Wahlstöm and staff, Piraeus, February 15, 2011.

[112]  Ibid. This is also made explicit in the RABIT regulation: Regulation (EC) No 863/2007, July 11, 2007, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007R0863:en:NOT (accessed April 13, 2011), Article 5,

[113]  Frontex Regulation, Article 4.

[114] This came up both in the interview with Arias Fernández, Orestiada, December 1, 2010 and in the interview with Wahlström and staff, Piraeus, February 15, 2011.

[115]  Human Rights Watch interview with Leszek Szymanki, Piraeus, February 15, 2011.

[116]  FRA report, p. 22.

[117]  Greece’s inability to return migrants from certain countries at times relates to the dangers of violence in those countries, but also sometimes relates to lack of diplomatic relations or lack of cooperation with the sending countries for accepting their nationals back.

[118]  Mission to Greece Report, March 4, 2011, para. 39.

[119]  "Agreement between the Hellenic Republic and the Republic of Turkey on Cooperation of the Ministry of Public Order of the Hellenic Republic of Turkey on Combating Crime, especially Terrorism, Organized Crime, Illicit Drug Trafficking and Illegal Migration," January 20, 2000. For an analysis of readmission agreements and human rights, see European Parliament, Directorate-General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, “Readmission Policy,” PE 435.632, September 2010, http://cadmus.eui.eu/bitstream/handle/1814/14957/EP_ReadmissionPolicy_en.pdf?sequence=4 (accessed April 14, 2011).  

[120] FRA report, p. 24.

[121]  Human Rights Watch interview with Haralampos Vomvellis, commander in Tychero Police Detention facility, November 30, 2010. The charges in question are criminal charges for illegal entry to Greece.

[122]  Interview with Arias Fernández, Orestiada, December 1, 2010.

[123]Stuck in a Revolving Door, pp. 86-91.

[124] Human Rights Watch interview I–20, Fylakio, December 1, 2010.

[125] FRA report, p. 24.

[126] Human Rights Watch interview with Haralampos Vomvellis, commander of Tichero police detention facility, November 30, 2010.

[127] Human Rights Watch interview with Spiridon Daskaris, Feres,  November 29, 2010.

[128]  Human Rights Watch Interview with Giorgios Polyzoidis, December 2, 2010.

[129] Human Rights Watch interview with Gil Arias Fernández, Orestiada, December 1, 2010.

[130] Gil Arias Fernández, Frontex Deputy Executive Director, letter to Human Rights Watch, reference number 8534, May 19, 2011 (on file with Human Rights Watch).