V. Frontex’s Responsibility for Exposing Migrants to Inhuman and Degrading Treatment
With the Lisbon Treaty, which entered into force on December 1, 2009, the Charter of Fundamental Rights of the European Union became binding law on all European Union agencies. Frontex’s authority to act, therefore, is not unlimited, but rather is fettered by the Charter. Article 18 guarantees "the right to asylum" and Article 4 of the Charter states, "[N]o one shall be subjected to torture or to inhuman and degrading treatment or punishment." Article 3 of the European Convention on Human Rights (ECHR) also guarantees the right not to be treated in a degrading or inhuman way, using the exact same language.
Under these standards, Frontex’s activities may be subject to review by the Court of Justice of the European Union (CJEU) for their adherence to fundamental rights norms, as acknowledged by Frontex in its Fundamental Rights Strategy.
Human Rights Watch believes that Frontex has fallen short of its obligations to respect the absolute prohibition on exposing individuals to inhuman and degrading treatment as a result of its cooperation with Greek authorities in detaining migrants in Greek detention facilities where the conditions violate European and international human rights standards.
In this chapter we analyze Frontex’s violation of the prohibition of inhuman and degrading treatment against the most relevant analogy to Frontex’s activity already discussed by the European Court of Human Rights (ECtHR) in, M.S.S. v. Belgium and Greece. In this case, the court said that Belgium violated the prohibition by returning an Afghan asylum seeker to Greece.
Transferring Migrants to Known Abusive Conditions of Detention
As mentioned previously, in the case of M.S.S. v. Belgium and Greece, the ECtHR found that detention conditions of migrants in Greece violate article 3 of the ECHR, which states, "No one shall be subjected to torture or degrading treatment or punishment." Particularly important is one clause in the court’s ruling. After describing detention and living conditions in Greece in detail, the court determined:
Based on these conclusions and on the obligations incumbent on the States under Article 3 of the Convention in terms of expulsion, the Court considers that by transferring the applicant to Greece the Belgian authorities knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment. That being so, there has been a violation of Article 3 of the Convention.
The court’s jurisprudence has reiterated that the prohibition of inhuman and degrading treatment is uniquely uncompromising. In June 2010 in Gäfgen v. Germany , the court articulated this absolute prohibition:
Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible … even in the event of a public emergency threatening the life of the nation.
Although Frontex rejects any responsibility for what happens to migrants in detention in Greece because it has no mandate over that detention, Human Rights Watch maintains that such a mandate is not the basis on which liability is incurred. Not having the mandate to intervene in abusive detention centers does not absolve Frontex from responsibility and liability where it co-operates in activities that contribute to exposing detainees to the abuses that occur in them.
As the ECtHR has made clear, although the human rights situation in a detaining country must be assessed to determine whether prohibited treatment is likely to occur, liability for violations under the ECHR will be incurred by a sending party “by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment”
In M.S.S. v. Belgium and Greece the court emphasizes that there are two components to the violation of the prohibition of inhuman and degrading treatment: 1) taking action that in fact contributes to the exposure of a person to inhuman and degrading treatment; and 2) having knowledge that the action will have that result. Both these conditions are necessary for such a violation to occur. Neither of them alone is sufficient.
Frontex consistently and repeatedly took action during RABIT 2010 that exposed migrants and refugees to inhuman and degrading treatment in the detention facilities in Evros. Most notably, this occurred when border guards participating in Frontex patrols apprehended migrants that they knew would be held in facilities where the conditions were inhuman and degrading. Nearly 12,000 migrants were apprehended and transferred to the Greek facilities during the RABIT deployment. Of course guards deployed by Frontex neither apprehended nor transported all of these migrants, but the agency directly or indirectly had a hand in their apprehension and transfer to detention centers and, thus, in their subsequent detention in inhuman and degrading conditions.
As documented in this report, upon apprehending migrants and transferring them to Greek custody, Frontex personnel knew or should have known what the conditions were in the detention facilities where these migrants would be detained.
Frontex sent a mission to visit detention facilities before the start of the RABIT deployment, which witnessed sub-standard conditions, and Frontex addressed the Greek government to change such conditions, once again reflecting knowledge of inhuman and degrading conditions. Leaving no doubt about its knowledge, Frontex wrote to Human Rights Watch on March 29, 2011, saying:
Frontex staff was constantly present in the Evros area in October 2010 in the framework of the ongoing projects JO Poseidon 2010 Land and Attica 2010. Having put in place the operational reporting systems and regular visits, Frontex management was aware about the difficult conditions in the detention facilities.
That Frontex decided despite this knowledge of “difficult conditions” to cooperate with Greece in exposing individuals to inhuman and degrading treatment can only be regarded as a breach of its legal obligations to respect the prohibition on inhuman and degrading treatment.
According to an article in the German magazine Der Spiegel, German police officers deployed as part of RABIT, stationed in Evros, criticized the harsh treatment of migrants. The article documents that the police officers saw migrants being forcefully handled and sometimes driven by gunshot into mine fields. The German officers reportedly added that after being arrested, people were placed in vans without seats or windows, and transported to detention centers where they were held in “absolutely degrading” conditions.  The article said, “Because such methods and situations violate German law, the officer in charge has ordered that German officers no longer take part in certain assignments.” 
Der Spiegel quotes a German Federal Ministry of the Interior spokesman as saying, “Germany is watching the developments with concern and has already demanded that Greece improve the situation of refugees.” In our meeting with Frontex in their Piraeus office, we asked for their response to the report, and they claimed that the article was misleading. Gerald Baumkirchner, a Frontex officer present in the meeting, responded:
We cannot expect that work styles will be the same. They [the German “guest officers”] compared what they saw with what they know from home….But the other issues, regarding human rights violations, we made clear that these will not be tolerated.
When we presented our preliminary conclusions to the three Frontex officers who met with us, they expressed concern about detention conditions in Greece and explained that they had voiced that concern to the Greek authorities. They also explained that their mandate does not allow them to do more, even though, as the head of the office, Kari Wahlström, explained, sometimes they would like to.
Frontex’s most common and consistent argument is that detention falls outside its mandate, a position reiterated in a letter to Human Rights Watch in May 2011.. Frontex’s disavowal of any responsibility for exposing migrants to human rights violations when its officials both on the ground and at the highest levels were fully knowledgeable about the direct consequences of its actions is inconsistent with the agency’s positive statements about the centrality of respect for fundamental rights and freedoms in its operations.
On the institutional level, Frontex has considerable discretion in planning its operations and, therefore, ought to take into account whether these operations are consistent with the principles of the “Fundamental Rights Strategy” announced by the agency just as it was transitioning from the temporary RABIT deployment to a longer-term joint operation on the Greek border. If Frontex assesses that its actions are likely to fill already overcrowded detention facilities and that those detention facilities do not meet minimal standards, then it should conclude that the “risk” in terms of involvement in human rights violations is too high.
In conclusion, Frontex’s activities that facilitated the detention of migrants in Greek detention centers during the RABIT deployment violated the prohibition on inhuman and degrading treatment. As such, all such activates should immediately be suspended until measures are taken to ensure that the absolute prohibition on degrading treatment is not violated.
The consequences of FRONTEX suspension of activities in Greece
In response to Human Rights Watch’s call for suspension of its activities that contribute to migrant detention in Greece, Arias Fernández, the deputy executive director of Frontex, replied:
Frontex has a legal obligation to respond to a request by a Member State for a RABIT operation if conditions are truly an emergency. In the case of Greece they were—and to say no would have been irresponsible. If Frontex had followed the course of action recommended by HRW and let Greece deal with the emergency on its own, how would this have helped the situation? Would the migrants have been in better conditions? Or is HRW suggesting that border controls should simply have been lifted and those wishing to enter the Schengen area irregularly via Greece have been left free to do so?
While Frontex may have a legal obligation to respond to a request by a member state for a RABIT operation in an emergency, the response should not be “at all costs.” The response must still comply with the binding obligations to respect fundamental rights—whether under the EU Charter or the ECHR. Therefore Frontex cannot lawfully engage in activities which violate the absolute prohibition on torture and inhuman and degrading treatment.
As the ECtHR has re-iterated on multiple occasions, no circumstances, no behavior of the victim (such as illegal border crossing), or even an emergency “threatening the life of the nation” (which the migrant emergency was not) justifies resort to use of inhuman and degrading treatment. For migrants who are held in the appalling conditions of Greek detention centers, whether they were initially detained by Frontex patrols or by Greek border guards operating alone is irrelevant. To the extent that the presence of “guest” border guards has curbed any other illegal practices such as unlawful push-backs or physical abuse of detainees by Greek agents, then that monitoring role could have been performed without actual assistance in the apprehension and transfer of migrants to inhuman conditions.
Frontex and participating states should have explored other options at the time of Greece’s request for a RABIT deployment. For example they could have considered detaining irregular migrants elsewhere in the Schengen area where conditions were compliant with EU standards, including other areas of Greece where detention standards are acceptable, such as on Samos Island, which Human Rights Watch suggested to Frontex at the time.
Alternatively, deployment of Frontex patrols could have been made conditional upon the EU and Greece taking the necessary measures to ensure that any migrants detained would not be held in inhuman and degrading conditions. Human Rights Watch has not seen evidence that these or any other options were ever even entertained. Indeed it appears that neither Frontex nor participating states required that Greece observe even the most basic of human rights obligations—those related to treatment of detainees and access to asylum—before agreeing to the Frontex deployment. Human Rights Watch urges Frontex and participating states to urgently consider alternatives to providing help to Greece which ultimately only serves to detain more migrants in well-known inhuman conditions.
 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, December 13, 2007 http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML; The Charter of Fundamental Rights of the European Union, 2000/C 364/01, December 18, 2000, http://www.europarl.europa.eu/charter/pdf/text_en.pdf (both accessed April 13, 2011), Art. 6, para. 1.
 Frontex, “Frontex Fundamental Rights Strategy,” March 31, 2011, para. 7.
 Frontex specifically declared in its “Fundamental Rights Strategy” that the ECtHR human rights jurisprudence applies to its activities, Ibid.
 Human Rights Watch recognizes that Frontex is not bound by the ECHR, since the EU has not yet acceded to the Convention. But theM.S.S. v. Belgium and Greece ruling of the ECtHR is nevertheless instructive and touches on the prohibition to subject people to inhuman and degrading treatment that appears not only in the ECHR, but in the Charter as well, to which Frontex is bound.
 ECtHR, M.S.S. v Belgium and Greece, paras. 367-368.
 See ECtHR Selmouni v. France, no. 25803/94, ECHR 1999-V http://www.unhcr.org/refworld/country,,ECHR,,MAR,456d621e2,3ae6b70210,0.html (accessed April 4, 2011). The Court confirmed that even in the most difficult circumstances, such as the fight against terrorism and organized crime, the Convention prohibits in absolute terms inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see also ECHR Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V, http://www.unhcr.org/refworld/country,,ECHR,,IND,,3ae6b69920,0.html, (accessed April 4, 2011)).
 ECtHR, Gäfgen v. Germany, no. 22978/05, June 1, 2010, http://www.bailii.org/eu/cases/ECHR/2010/759.html, (accessed April 4, 2011).
 Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I.
 Frontex letter to Human Rights Watch, March 29, 2011.
 Human Rights Watch interview with Wahlström and staff, Piraeus, February 15, 2011.
 Frontex letter to Human Rights Watch, March 29, 2011.
 “Greichenland-Türkei: Grenzpolizisten jagen Flüchtlinge in Minefeld,” Der Spiegel, December 11, 2010, http://www.spiegel.de/politik/ausland/0,1518,734123,00.html (accessed April 14, 2011) Translations of Der Spiegel article by Human Rights Watch; see also “Media: German officers criticize Greek treatment of migrants,” December 11, 2010, http://www.monstersandcritics.com/news/europe/news/article_1604981.php/Media-German-officers-criticize-Greek-treatment-of-migrants (accessed April 14, 2011).
 Human Rights Watch interview with Gerald Baumkirchner, Pireaus, February 15, 2011.
 Human Rights Watch interview with Kari Wahlström and staff, February 15, 2011.
 Letter from Arias Fernández, Deputy Executive Director Frontex to Human Rights Watch, May 19, 2011.
 Frontex, “Frontex Fundamental Rights Strategy,” March 31, 2011 http://www.frontex.europa.eu/newsroom/news_releases/art105.html (accessed April 14, 2011).
 Letter to Human Rights Watch, May 19, 2011, p. 2 on file with Human Rights Watch.
 “We would like to bring to your attention that detention facilities for migrants on Samos and Chios Islands with a total capacity of more than 400 places are currently empty…. We therefore decided to call on Greek authorities to immediately start transferring migrants from the Evros region to the Aegean Islands…. We therefore believe that our proposal is realistic, doable, and would immediately improve the desperate conditions of many migrants. We therefore urge you to press Greek authorities to start transferring migrants as a matter of priority.” Email letter from Simone Troller, senior researcher, Human Rights Watch, to Gil Arias Fernandez, deputy executive director of Frontex, December 7, 2010, on file with Human Rights Watch.