Conclusions of the European Ombudsman on EU search and rescue following her inquiry into how the European Border and Coast Guard Agency (Frontex) complies with its fundamental rights obligations in the context of its maritime surveillance activities, in particular the Adriana shipwreck

CORRESPONDENCE – DATE Monday | 26 February 2024
CASE OI/3/2023/MHZ – OPENED ON Monday | 24 July 2023 – DECISION ON Monday | 26 February 2024 – INSTITUTION CONCERNED European Border and Coast Guard Agency (No further inquiries justified)

Reposted from European Ombudsman

Introduction

On 14 June 2023 over 600 people drowned in the the Mediterranean Sea, off the coast of Pylos in Greece, when their boat – a severely overcrowded fishing vessel called the Adriana – capsized and sank.

The tragedy of the Adriana was described by EU Commissioner for Home Affairs, Ylva Johansson as ”one of the worst shipwrecks in this century worldwide”, and stressed the need to ”establish the facts of what happened every step of this fatal journey”.

The Ombudsman carried out an own-initiative inquiry to examine the facts concerning the actions of the European Border and Coast Guard Agency (Frontex) as the tragedy unfolded, as well as how it responded in other maritime emergencies in which it has been involved.

The inquiry also examined the relationship between Frontex and Member State authorities in the context of maritime emergencies in which Frontex is involved. It considered the balance of responsibilities between the EU and Member States in search and rescue operations and how this influences the outcomes of such operations.

While the inquiry assessed the actions of Frontex, its findings, which are set out below and in more detail in the decision concluding the inquiry, led to wider reflections on the changes needed at EU level to demonstrate the EU’s commitment  to saving lives at sea or, as Commission President von der Leyen stated in her September 2020 address to the European Parliament, that ”saving lives at sea is not optional”.

Two overall conclusions require immediate and urgent attention:

· The inquiry revealed the extent to which Frontex is dependent on the actions of Member States to uphold its fundamental rights obligations and its duty to save lives.  In view of these conclusions and the growing concerns about persistent violations of fundamental rights by a Member State in its border control operations, Frontex should consider whether the threshold has been reached to allow it to terminate, withdraw or suspend its activities with the Member State in question. It should publicly clarify its reasons for concluding that the threshold has or has not been reached.

· In order to provide answers to the broader systemic issues that go beyond the mandate of this inquiry, the Ombudsman calls upon the European Parliament, the Council of the EU and the European Commission to establish an independent commission of inquiry to assess the reasons for the large numbers of deaths in the Mediterranean, to learn the lessons from incidents such as the Adriana shipwreck, and to make recommendations on how to protect fundamental rights and the right to life in the response to maritime emergencies. 

Background

Frontex does not operate in a vacuum. The treatment of ‘migrant boats’ attempting to navigate the Mediterranean can be influenced by factors that would not normally apply to search and rescue (SAR) operations, notably the political and other sensitivities around migration.

Critically, the possibility of proactive rescue is alleged to be a ‘pull factor’ for people seeking to migrate to Europe through often perilous means and to encourage people smugglers to put more lives in danger.

Whether through accident or design, decisions made in recent years have had the effect of restricting proactive rescue operations.

In 2014, Mare Nostrum, the year-long partly EU-funded proactive search and rescue operation led by the Italian authorities was ended and, to date, has not been replaced by anything approaching the same scale and scope.

Non-governmental organisations involved in proactive rescue operations have been threatened with prosecution in multiple Member States.

Frontex was renamed in 2016 to include the designation ‘coast guard’, yet its mandate and the scope of its activities fall short of what is generally understood as being the mission of a coast guard.

Despite Frontex having ‘search and rescue’ obligations, it is clear that it primarily provides a search or surveillance function and not a rescue function.

Its capacity to save lives at risk is further constrained by the fact that it is Member State authorities which direct and coordinate search and rescue missions

This tension between Frontex’s duty to save lives and the pressure to prevent or discourage people from attempting to cross the Mediterranean creates a challenge for  Frontex in balancing its role of supporting Member States in the management of the EU’s external borders with its fundamental rights obligations.

It creates a similar challenge for the EU as a whole specifically how to ensure that people on board ‘migrant boats’ are afforded the same protections and guaranteed the same right to life as others.

The Adriana shipwreck

On 10 June 2023, the Adriana left the port of Tobruk in Libya, heading for Italy, carrying approximately 750 people attempting to migrate to Europe.

Italian authorities drew attention to the boat on the morning of 13 June. Frontex was copied into a message sent by the Italian Maritime Rescue Coordination Centre (RCC) to the Greek Joint RCC. Unconfirmed reports of dead and/or dying adults and children on the boat had also been made by NGOs in touch with people on the boat.

Frontex directed an aircraft, which was carrying out standard maritime surveillance activities, to the position of the boat. This aircraft shared video footage and other information about the boat’s condition and sea-state with both the Italian and Greek RCCs. In particular, it stated that the boat was overcrowded and no life jackets were visible.

Frontex did not issue a Mayday relay, as in its view the boat was not in immediate danger.

The aircraft was obliged to return to base after 10 minutes as it reached the limits of its fuel.

As the boat was in the Greek search and rescue region, the coordination of any search and rescue operation was the responsibility of the Greek RCC from whom Frontex – and any other vessel in the area – had  to take any further instructions.

According to documents inspected  in the course of this inquiry, Frontex would subsequently, on four separate occasions, on 13-14 June seek updates from and make offers of assistance to the Greek RCC, including to return to assist with aerial surveillance. It received no reply from the Greek authorities to any of those communications.

On the evening of 13 June 2023, a Frontex remote-piloted aircraft taking part in its pre-planned aerial surveillance was scheduled to pass over the area where the Adriana was located. Instead, it was diverted to another incident at the request of the Greek authorities: a migrant boat that was subsequently subject to a SAR operation.

Approximately 15 hours after the first alert from the Italian authorities, the boat capsized and sank.

A Greek Coast Guard boat and other boats that were directed to the coordinates of the Adriana subsequently saved around 100 people, the majority of whom were taken to shore by a private vessel. Some 80 bodies were recovered.

Over 600 men, women and children are presumed to have died.

On the morning of 14 June 2023, Frontex did send an aircraft to the coordinates of the Adriana, as part of a pre-planned aerial surveillance.

By the time it arrived, the boat had capsized and no passengers or other traces of the boat were visible in the water. When Frontex offered to return with another aircraft, the Greek RCC told Frontex that its services were no longer needed.

Accountability for the shipwreck

In her July address to the European Parliament, Commissioner Johansson stated:

”Above the Adriana, the waters are now silent, no tombstones, no marker, nothing to remember the names. Let our actions be our monument.”

Repeated allegations have been made by survivors, by media outlets and by civil society organisations that actions by the Greek Coast Guard (HCG) contributed to the sinking of the boat.

Any assessment of the facts of this tragedy is severely compromised by the absence of video or other recording of what took place in the hours and minutes leading up to the boat’s capsizing, and the events that took place in the immediate aftermath when hundreds of people had fallen into the sea.

It has emerged that recording equipment on board the HCG vessel had been switched off for reasons that are disputed. A number of survivors also claimed that their mobile phones were taken from them by the HCG.

As noted above, Frontex had also not obtained permission from the Greek RCC for its surveillance aircraft to leave the other incident and head to the site of the Adriana before it sank. Had it done so, it may have been in a position to record what happened and possibly influenced the actions of the HCG.

The Greek Naval Court is currently investigating the Coast Guard’s actions.

The European Commission has repeatedly called for the facts to emerge. However, at a hearing of the European Parliament’s Committee on Civil Liberties on 14 February 2024, a senior Commission official noted the difficulties encountered in communicating with the Naval Court regarding updates on the progress of the Court’s investigation.

The Greek Ombudsman is conducting an own-initiative investigation into the Coast Guard, following the Coast Guard’s decision not to launch an internal investigation. A serious incident report by the Fundamental Rights Office of Frontex stated that they did not receive ”relevant information” from the Greek authorities following a series of questions put to them.

Despite these initiatives, it is regrettable that, at EU level, there is no single accountability mechanism that could independently investigate all related issues, including the role of the Greek authorities, the role of Frontex, and the role of any other relevant institution, such as the European Commission, which has responsibility for ensuring compliance with fundamental rights provisions under the EU Treaties.

The Ombudsman’s conclusions

Frontex’s relationship with Member State authorities

Frontex has extensive fundamental rights obligations both in general and in the context of search and rescue at sea. These obligations have been elaborated in operational plans, service requests for surveillance, rules and procedures that also specify the different roles and responsibiilties of the agency vis-a-vis Member State authorities.

Frontex cannot be said to have breached any of the relevant rules and procedures. However, the plans and procedures risk limiting Frontex’s ability to act independently in order to fulfil its fundamental rights obligations.

For example, in the case of the Adriana shipwreck, the service requests governing Frontex’s surveillance activities, together with the international rules on search and rescue, prevented Frontex from returning to the last known position of the boat without the agreement of the Greek RCC. Similarly, disobeying the order to divert a surveillance aircraft to another incident would also have been a breach of these legal provisions and agreements.

The consequence of this, and the lack of an EU legal framework for search and rescue, is that boats in distress carrying refugees and asylum seekers cannot rely on proactive SAR operations at EU level to effect a rescue and are primarily dependent on Member State authorities to do so.

If Frontex has any doubts about a Member State’s compliance with fundamental rights in the context of search and rescue operations, the current operational framework makes it difficult  to take independent action in accordance with those doubts.

Unfortunately, there are situations where Frontex has grounds to doubt whether some Member States do comply with their fundamental rights obligations.

This inquiry, for example, revealed an incident where another Member State’s RCC explicitly ordered Frontex not to deploy surveillance aircraft to an ongoing emergency.

The EU Anti-Fraud Office (OLAF) previously found that Frontex surveillance assets were deliberately diverted in order to avoid witnessing ‘pushbacks’.

The Adriana tragedy took place not long after the release of OLAF’s findings, after which Frontex’s Executive Director resigned. 

Less than a year before the tragedy, the European Court of Human Rights had issued its ruling against Greece in a case with some similarities to the Adriana capsizing, including a claim, denied by the Greek national authorities, that actions by the HCG had caused a fishing boat carrying migrants to capsize in 2014, resulting in the deaths of 11 people.

The Adriana tragedy therefore took place when Frontex was fully aware of the recent history of concerns about the Greek authorities’ compliance with fundamental rights obligations. Even with this awareness, the current rules prevented Frontex from taking a more active role in the Adriana incident.

The inquiry found other instances where Frontex stayed on the site of maritime emergencies, as well as an instance where it tried to return to an emergency but was not authorised to do so by the relevant national authority

This poses serious questions for Frontex’s relationship with national authorities but also vis-a-vis its own understanding, or application, of its fundamental rights role and obligations in such circumstances.

The Ombudsman calls on EU legislators to reflect on, and address, this clear fundamental rights gap.

Under current legislation, it would be necessary to amend the provisions of operational plans or the terms of service requests for aerial surveillance to allow Frontex to better fulfil its fundamental rights obligations, such as by maintaining surveillance where it deems it necessary to do so.

This ‘second pair of eyes’ principle, to continue surveillance at the site of maritime emergencies and other incidents, is set out in various internal Frontex recommendations, which were reviewed in this inquiry (including recommendations by the Fundamental Rights Office and a Frontex Management Board working group), and is an explicit objective the 2021 Frontex Fundamental Rights Action Plan.

Termination, withdrawal or suspension of cooperation with national authorities

The lack of response from the Greek RCC in the Adriana incident, together with broader concerns about the Greek authorities’ non-compliance with fundamental rights obligations, raises the question of Frontex’s relationship with Member States.

Frontex says that it is not within its mandate to monitor the activities of Member State authorities.

However, where Frontex deems that national authorities are persistently failing to fulfil their SAR obligations, or are otherwise involved in fundamental rights violations, and/or where national authorities are constraining the SAR role and capacity of Frontex, this should lead the Executive Director to consider whether the threshold has been reached that would allow Frontex to terminate, withdraw or suspend its activities. Article 46 of the Frontex Regulation (Regulation 2019/1896) explicitly provides for this possibility.

It is not unlikely that there will be a repeat of the Adriana tragedy unless there are significant changes to the legal and operational framework for responding to maritime emergencies. In such circumstances, continued cooperation by an EU agency, and the EU authorities more generally, risks calling into question the EU’s commitment to the protection of human lives.

Frontex’s responsibilities concerning emergency signals

The issue of whether Frontex should have issued a Mayday relay when it observed the heavily overcrowded Adriana is contested.

Civil society organisations have argued that it should have, given the overcrowded nature of the boat and the visible absence of life jackets, in addition to reports of fatalities on the Adriana including those of children. The serious incident report by the Frontex Fundamental Rights Office concluded that, while it complied with its obligations, in the future, Frontex “should assess similar cases more thoroughly” as to whether to issue a Mayday relay, notably where national authorities do not provide information about their assessment and response.

Frontex gave reasons as to why it should or could not have, including how it assessed the status of the boat based on its sighting, the fact the Greek authorities were already believed to be coordinating a response and the safety implications of issuing Mayday calls. These reasons are explained in more detail in the decision on this inquiry.

The European Ombudsman is not in a position to make a determination either way.

However, the inquiry found that Frontex has no internal guidelines regarding the issuance of Mayday calls, despite the very specific and complex nature of its surveillance activities. The inquiry also revealed that Frontex has issued Mayday relays in previous instances.

It is impossible to say whether issuing a Mayday relay at the time of Frontex’s initial surveillance of the Adriana would have saved lives, but the boat did eventually capsize with the total loss of more than 600 people.

Frontex should therefore reflect on whether the parameters by which it assesses maritime emergencies it detects through its surveillance, and the resulting potential need to issue Mayday relays, are wide enough to encompass the particular elements of migrant boats and Frontex’s surveillance activities.

The results of these reflections should be captured in clear guidance issued to Frontex staff.

How Frontex assesses sources of information

Frontex takes into account only official information or information that it can itself verify. It should also reflect on how better to respond to unofficial reports, such as those from NGOs, which may have vital information to impart, and how to include them in its assessments. Reported dangers to children should be given the highest priority.

Concluding remarks

These are the Ombudsman’s main conclusions as regards Frontex’s ability to fulfil its fundamental rights obligations in search and rescue operations. Further suggestions as to how Frontex can improve its operations so as better to comply with existing fundamental rights obligations are set out in the decision concluding the inquiry.

The European Union projects its identity through the prism of its commitment to the rule of law and to fundamental rights. In the aftermath of the Adriana tragedy, it should take the opportunity to reinforce that identity through reflection and through actions that would, to the greatest extent possible, prevent such a tragedy from happening again.

Emily O’Reilly

European Ombudsman

Strasbourg, 26/02/2024

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