Dutch lawyers take Frontex to EU court over pushbacks

Schüller, along with counterpart Lisa-Marie Komp, are challenging the Warsaw-based agency in a case first launched almost four years ago.

A Syrian/Kurdish family with children aged 2, 5 and 7 had arrived on the Greek islands in October 2016.

They demanded asylum. The lawyers say the family had been told they would be flown to Athens because of their vulnerable status.

But they were instead shuffled onto a Frontex-operated return flight and sent back to Turkey.

During the flight, they were seated separately by guards and ordered not talk, triggering bouts of panic from their children.

Once landed in Turkey, the family were detained for two weeks before heading to northern Iraq out of fear they would be sent to Syria.

The lawyers then lodged a complaint with Frontex in January 2017.

"Frontex acknowledges that the treatment of the children during the flight was unacceptable," said Komp.

"However, Frontex takes the position that only Greece is to blame," she said.

Komp said the Luxembourg-based court case will attempt to assess whether Frontex itself bears liability for human rights violations in such operations.

She said Frontex's mandate in 2016 obliged it to carry out basic due diligence before an operation is launched, monitor its execution, and then evaluate its completion.

"We repeatedly requested Frontex to provide us with the documentation that shows that they actually complied with these due diligence obligations," she said, noting the agency is required to draft reports.

"None of these reports were provided by Frontex," she said.

"Frontex blindly flew these people from Greece to Turkey, and then takes the position 'well, it's all to blame on Greece'," she added.

She noted Frontex officers should, for example, ensure that a return decision had been issued.

Had they done their job properly, they would have realised that the family had not received such a decision, she said.

For its part, Frontex says it had provided Greece technical support of a return flight under the legal framework of the EU-Turkey Deal signed in 2016.

"We are currently examining the case and can therefore not comment on any details at this stage," it said, in an email.

It also added, that while it is responsible for the coordination of return operations, it does "not enter into the merits of return decisions issued by the member states."

Damages

It is not the first case against Frontex lodged at the EU court of justice. But it is the first time lawyers are seeking damages.

Another case demanding Frontex withdraw its operations from Greece was filed over the summer by front-LEX.

Hundreds of cases of push backs have been documented in Greece over the years amid consistent denials from Athens despite the evidence pointing to the contrary.

Another recent case lodged earlier this month by the NGO, Refugee Support Aegean (RSA), says Greek authorities had pushed back a Syrian family into Turkey along the land border - despite an injunction by the European Court of Human Rights.

For its part, the European Commission has been demanding Greece set up an independent monitor to ensure pushbacks do not take place.

Greece has been told to set up the monitor if it wants access to some €15m in additional EU funding for border management.

The socialist S&D group is now pressing the commission to link EU funds to the respect for human rights when it comes to pushbacks, in a letter sent on Wednesday to the president Ursula von der Leyen.

"We believe this approach should be applied to the entirety of migration and asylum funds, as a minimum, until the commission has sufficient evidence that pushbacks have ceased and countries engaging in systemic pushbacks fully comply with EU and international legislation in this area," they say.

The letter comes as EU heads of state and government are set to discuss pushbacks, which are illegal under EU and international law, at an EU summit starting Thursday.

This article was updated on 21 October, 2021 at 17:27 with a comment from Frontex