Internal Frontex probe to deliver final report this week

The probe on fundamental rights was launched last November following allegations the Warsaw-based agency had been involved in illegal pushbacks.

"I expect that the conclusions drawn by the management board on Friday will be duly followed up by the agency," said Matthias Oel, director of the EU commission's branch on internal affairs and migration.

Oel wants member states to ensure full compliance of Frontex operational activities.

A preliminary report by the working group was leaked earlier this year.

It noted that a handful of the alleged illegal pushbacks revealed by various media outlets still needed investigating.

It also demanded better oversight of so-called serious incident reports. Such reports are meant to document rights violations, but are seldom used, and even shunned.

But the preliminary report also made reference to case law, which some say fails to take into account the full spectrum of rules governing human rights.

The whole appears to be turning into a wider legal dispute on how to interpret the EU regulation on sea borders.

Open to interpretations

Fabrice Leggeri, the agency's executive-director, referenced the regulation in recent interviews with German and Italian media.

The 2014 regulation (article 7) does allow boats to be turned back, if a criminal operation is suspected.

It is a point he made to German newspaper Frankfurter Allgemeine Zeitung in January.

"If trafficking is suspected, Greece can order the boats to change course. This is clearly regulated in a 2014 EU regulation," he pointed out.

The same argument was made by Romania's internal affairs ministry after one of its boats in a Frontex operation was filmed blocking asylum seekers.

But the same regulation also requires member states to comply with international law and not illegally force asylum seekers back.

That point was made by Nora Markard, a professor of International Public Law and International Human Rights at the University of Münster.

"It does not mean international law provisions are suspended in these operations," she said of Leggeri's argument.

Her comments were made alongside Matthias Oel at an event organised by the Heinrich-Böll-Stiftung, a German Green political foundation.

She noted people who enter irregularly as refugees cannot be criminally prosecuted under rules outlined in the 1951 Geneva Convention.

"Irregularity of entry is a typical problem for refugees because they cannot access safe and legal ways of migration," she noted.

She also highlighted articles against illegal pushbacks in the European Convention on human rights and the Charter of Fundamental Rights.

Collective expulsions

The charter bans so-called collective expulsions of people seeking refuge.

The European Court of Human Rights made similar arguments, noting the prohibition of collective expulsions applies at sea as well.

Italy lost such a case in 2012 when its coast guard was turning people back to Libya.

The case was referenced in the preliminary report by the working group on Frontex.

However, it also cited another more recent case law (N.D. and N.T. v. Spain) that appeared to question the 2012 pushback judgement on Italy.

The Spanish case deals with its Ceuta and Melilla enclaves in northern Morocco. Both have high fencing to keep migrants out.

The court found that pushing migrants back across the fences into Morocco constitutes a collective expulsion.

But it also inserted an exception to the rule.

That exception means it is not a violation, given the large number that tried to enter by force.

"The [working group] report seems to suggest that this can be transposed to the sea situation," said Markard.

Oel also weighed in on the EU regulation, but noted mistakes can happen.

"Each border guard, has to decide within seconds, if it is an illegal entry, or is it a humanitarian situation," he said, adding that fundamental right monitors on Frontex missions will soon help ensure better compliance.