NB –I believe this document is the final version of the proposed guidelines approved by the Council on 25 January 2010, with Italy and Malta abstaining, and which has now been forwarded to the Parliament for scrutiny. I will remove or amend this post if I discover this is not the final version approved by the Council.
What follows are relevant excerpts from Document COM(2009)658 (Brussels, 27.11.2009), the final Proposal for a COUNCIL DECISION supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders – Frontex.
As noted, Malta and Italy oppose these guidelines and have threatened to withdraw from future Frontex missions if these guidelines take effect.
Guidelines for Frontex operations at sea
1. GENERAL PRINCIPLES
1.1 Measures taken for the purpose of the surveillance operation should be conducted in a way that does not put at risk the safety of the persons intercepted or rescued as well as of the participating units.
1.2. The special needs of children, victims of trafficking, persons in need of urgent medical assistance, persons in need of international protection and other persons in a particularly vulnerable situation should be considered throughout all the operation.
1.3. These guidelines should be applied by Member States in accordance with fundamental rights. Member States should ensure that border guards participating in the surveillance operation are trained with regard to relevant provisions of human rights and refugee law, and are familiar with the international regime on search and rescue.
2.1 Upon detection, the ship or other sea craft (“ship”) should be approached in order to observe its identity and nationality and, pending further measures, should be surveyed at a prudent distance. [***]
2.4. Measures taken in the course of the surveillance operation against ships or other sea craft with regard to which there are reasonable grounds for suspecting that they carry persons intending to circumvent the checks at border crossing points may include: [***]
(f) conducting the ship or persons on board to a third country or otherwise handing over the ship or persons on board to the authorities of a third country;
(g) conducting the ship or persons on board to the host Member State or to another Member State participating in the operation.
3. SEARCH AND RESCUE SITUATIONS ARISING IN THE COURSE OF THE OPERATION
3.1. Participating units shall provide assistance to any vessel or person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.
3.2. When facing in the course of the operation a situation in which uncertainty or apprehension exists as to the safety of a ship or of any person on board, the participating unit should forward as soon as possible all available information to the Rescue Coordination Centre responsible for the search and rescue region where the situation is taking place.
In cases where the Rescue Coordination Centre of the third country responsible for the search and rescue region does not respond to the notification transmitted by the participating unit, the latter should contact the Rescue Coordination Centre of the host Member State that is geographically the closest to the emergency.
While awaiting instructions from the Rescue Coordination Centre, participating units should take all the appropriate measures to ensure the safety of the persons concerned. [***].
4.1. The operational plan should spell out the modalities for the disembarkation of the persons intercepted or rescued, in accordance with international law and any applicable bilateral agreements.
Subject to section 4.2, priority should be given to disembarkation in the third country from where the persons departed or through the territorial waters or search and rescue region of which the persons transited or, if this is not possible, to disembarkation in the geographically closest place where the safety of the persons can be ensured.
4.2. No person should be disembarked in or otherwise handed over to the authorities of a country with regard to which there are substantial grounds for believing that he or she would be subjected to persecution or to torture or to other forms of inhuman or degrading treatment or punishment, or from which there is a risk of expulsion or return towards such a country. The persons intercepted or rescued must be informed in an appropriate way so that they can express any reasons for believing that they would be subject to such treatment in the proposed place of disembarkation.
4.3. The coordination centre should be informed of the presence of persons within the meaning of paragraph 4.2, and should convey that information to the competent authorities of the host Member State.
Click here for full Document.
Click here for a “Note to the File” pertaining to the Draft Council Decision supplementing the Schengen Borders Code as regards sea border surveillance in the context of operational cooperation coordinated by FRONTEX (COM(2009)658) as amended by the Council on 25 January 2010.