DECISION
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
On 14 June 2023, a fishing vessel (the Adriana) carrying an estimated 750 migrants capsized and sank in international waters off the coast of Pylos, Greece. In the subsequent search and rescue (SAR) operation, 104 people were rescued and 82 bodies were recovered. The remaining passengers are presumed dead. While there had been numerous previous shipwrecks of boats carrying migrants to the European Union, including a shipwreck in Crotone, Italy, on 26 February 2023 when an estimated 100 people died, the Adriana tragedy is considered to be the deadliest, and provoked international outcry.
The incident led to public concern about the role and responsibilities of the EU in protecting lives in the context of its migration and border policies. Allegations have been made that the actions of the Hellenic Coast Guard (HCG) contributed directly or indirectly to the capsizing. There are different national investigations into the role of the HCG, including an ongoing inquiry by the Greek ombudsman, opened after the HCG decided not to launch its own internal disciplinary investigation.
Given that the European Border and Coast Guard Agency (Frontex), through its joint operations and surveillance activities, is often involved to some extent in the response to maritime emergencies, it is understandable that public disquiet extends to its role. In response to the Pylos tragedy, the Ombudsman decided to open an own-initiative inquiry.
The inquiry found that Frontex had followed the applicable rules and protocols but demonstrated shortcomings in how Frontex reacts in maritime emergency situations in which it becomes involved, either in the context of joint maritime operations or its separate multipurpose aerial surveillance activities.
These include inadequate guidance on how Frontex units should respond where they detect boats in potential emergency situations in the context of their specific and unique activities, including regarding the issuance of emergency signals. The inquiry also demonstrated the need for greater clarity on roles and responsibilities and, importantly, on the nature of Frontex’s cooperation with national authorities.
The inquiry also showed a failure to ensure Frontex’s fundamental rights monitors are sufficiently involved in decision making on maritime emergencies detected during Frontex’s surveillance activities.
To address these shortcomings, the Ombudsman made a series of suggestions. However, the Ombudsman stressed that these suggestions on specific aspects of Frontex’s work are not sufficient to fill the large gap left by the absence of proactive SAR in the EU, particularly when combined with repeated allegations about the conduct of authorities in certain Member States.
To this end, the Ombudsman suggested that, where national authorities are failing to fulfil their SAR obligations adequately, or otherwise involved in fundamental rights violations, and/or where national authorities are constraining the search and rescue role and capacity of Frontex, this should lead the Executive Director to reconsider whether Frontex should continue its activities in that Member State.
Background to the inquiry
(see glossary)
1. Responding to maritime emergencies and conducting search and rescue (SAR) operations involves obligations and procedures for all parties, which are set out in international law.[1] These obligations also apply to the European Border and Coast Guard Agency (Frontex) in the context of its activities. Among other matters, the law (and the international guidelines derived from the law) sets out how to define the phase of emergency of boats detected at sea[2] and when to issue Mayday calls and other emergency signals[3]. Frontex’s SAR obligations and surveillance responsibilities are also set out under EU law[4], as well as in the context of the operational plans for ‘joint operations’ in which it is involved. These obligations have become more relevant as the mandate of the agency has expanded in recent years, first in 2016, when it was renamed to include the ‘coast guard’ designation,[5] and subsequently in 2019[6].
2. Where an activity in which Frontex has been involved is subject to concerns about potential fundamental rights breaches, the Fundamental Rights Officer (FRO) is responsible for preparing a ‘serious incident report’ (SIR) to document the incident and, if needed, make recommendations to Frontex and Member State authorities concerned. This also concerns maritime emergencies in which Frontex is involved.
3. Frontex carries out joint operations with EU Member State authorities, providing support for border management and law enforcement. As part of these joint operations, Frontex commits to provide support for surveillance of border and pre-border areas (including at sea) and to assist in search and rescue activities.[7] As part of the joint operations, Frontex has maritime assets (boats) and aerial assets (both manned and remote-piloted aircraft), which take part in activities defined in the ‘operational plan’. There are assets that are co-financed with the Member State and pledged to a joint operation, there are assets financed and managed by Frontex, and there are national assets that may receive co-financing where they participate in activities under a joint operation. Frontex’s maritime assets are, by nature, selected for use in the operational areas of joint operations, that is maritime border areas. Such boats typically may not have the technical capacity to engage in operations further from coastal waters, for example in the wider SAR regions of Member States, which cover international waters.
4. Frontex also provides support to Member States for the surveillance of border and pre-border areas through the European Border Surveillance system (EUROSUR)[8]. Through EUROSUR, and based on ‘service requests’ from participating Member States, Frontex conducts multipurpose aerial surveillance using both manned aircraft and remote-piloted aircraft (RPAs or drones).[9] Where appropriate, Frontex may also make use of other surveillance technologies to offer support, for example by requesting satellite imagery though the EU’s Copernicus satellite observation system[10].
5. Frontex’s aerial surveillance activities are coordinated on a constant basis (24 hours a day, seven days a week) by its ‘Situation Centre’ at the Frontex headquarters in Warsaw (European Surveillance Room), which is divided into a ‘Monitoring Hub’ and a ‘Surveillance Sector’.[11] The European Surveillance Team (EST) is responsible for carrying out the practical coordination of these surveillance activities. The EST includes Frontex staff and experts from national authorities, including SAR experts designated by national coast guards. Frontex’s Fundamental Rights Office[12] is also represented in the team. Decisions are taken by the EST team leader.
6. According to monitoring groups, more than 20 000 people have died or gone missing at sea in the Central Mediterranean since 2014. Almost every day, people die trying to reach the EU.
7. On 14 June 2023, a fishing vessel (the Adriana) carrying an estimated 750 migrants capsized and sank in international waters off the coast of Pylos, Greece. In the subsequent search and rescue operation, 104 people were rescued and 82 bodies were recovered. The remaining passengers are presumed dead. While there had been numerous previous shipwrecks of boats carrying migrants to the European Union, including a shipwreck in Crotone, Italy, on 26 February 2023 when an estimated 100 people died, the Adriana tragedy is considered to be the deadliest, and provoked international outcry.
8. The shipwreck occurred in the Greek ‘search and rescue region’ in the Central Mediterranean, which is the responsibility of the Greek Joint Rescue and Coordination Centre (RCC) [13]. The Hellenic Coast Guard (HCG) was present at the coordinates of the Adriana at the time. In the immediate aftermath of the incident, questions were raised about how the HCG conducted its response to the maritime emergency, including allegations that its actions may have contributed to the capsizing. There are different national investigations into the role of the HCG, including an ongoing inquiry by the Greek ombudsman[14], opened after the HCG decided not to launch its own internal disciplinary investigation. However, questions were also raised about the role of Frontex.
9. On the morning of 13 June 2023, Frontex was copied in a message sent to the Greek RCC by the Italian Maritime RCC, which had received information about the situation on the boat from civil society representatives that were in contact with the boat’s crew. Frontex had then directed an aircraft deployed under Joint Operation Themis[15] to the position of the boat, which was outside the Joint Operation Themis operational area. The aircraft surveyed the boat and transmitted information about its condition and the sea state (including video footage) to the Italian and Greek RCCs, before returning to base after 10 minutes, as it had reached the limits of its fuel (BINGO fuel).
10. Evidence that emerged after the tragedy indicated that, subsequently, Frontex had, on a number of occasions over the course of the day, offered to the Greek authorities to return to assist with aerial surveillance. The Greek authorities did not reply. On the morning of 14 June 2023, a Frontex-directed remote-piloted aircraft taking part in aerial surveillance under EUROSUR arrived at the site of the shipwreck. At the time it arrived, the search and rescue operation coordinated by the Greek authorities had already concluded. A detailed timeline of Frontex’s involvement in the Pylos incident is annexed to this decision (Annex 1).
11. On 26 June 2023, the FRO started to prepare a serious incident report to clarify the role of Frontex in the Adriana incident, as well as the legality and fundamental rights compliance of the assistance provided to the boat, and the coordination and conduct of the rescue operations by national authorities. The FRO issued the final report on 1 December 2023.
12. The Adriana shipwreck led to public concern about the role and responsibilities of the European Union in protecting lives and SAR in the context of its migration and border policies, and questions were raised about the role of Frontex in particular.
13. The Ombudsman decided to open an own-initiative inquiry to look into the matter further.
The inquiry
14. The Ombudsman opened an inquiry into how Frontex complies with its fundamental rights obligations with regard to search and rescue in the context of its maritime surveillance activities.
15. In the course of the inquiry, the Ombudsman set out a series of questions to Frontex[16] and received Frontex’s reply[17]. The Ombudsman also carried out a targeted consultation of civil society organisations.[18]
16. Based on this, the Ombudsman sent follow-up questions to Frontex[19], and the Ombudsman inquiry team met with representatives of Frontex and the FRO. The team also inspected files held by Frontex relating to its search and rescue activities in general, as well as concerning specific search and rescue incidents in which Frontex was recently involved, including the Adriana shipwreck.
Role of Frontex in surveillance and in search and rescue
Arguments presented to the Ombudsman
Surveillance/presence at potential emergency situations
Arguments by Frontex
17. Where Frontex, through its planned surveillance activities (either through EUROSUR or joint operations) becomes aware of a vessel in a potential emergency situation, it will try to maintain surveillance for as long as possible. This is in line with the recommendations set out in the Frontex Fundamental Rights Action Plan and other guidance. It may be obliged to discontinue surveillance for different practical, operational and safety reasons but, in such circumstances, it will attempt to return to the site. It must also follow orders or directions given by the RCC responsible for coordinating a response to an emergency.
18. Once a national authority has taken over coordination of an emergency situation, including the launch of a SAR operation, the national RCC is in charge of organising which assets contribute what support. The RCC is always aware of the assets Frontex has at its disposal and the existing flight patterns of Frontex surveillance assets in the areas affected. As a result, Frontex would contribute aerial surveillance to an emergency situation already under the coordination of a national RCC only if it was (a) given permission to do so by the RCC or (b) this was on the route of the existing flight pattern of an asset and the RCC did not require a change of that route or the national authorities had not issued flight restrictions over the airspace in question (communicated by a notice to air missions – NOTAM).[20]
19. In the case of the Crotone shipwreck, a Frontex aircraft had detected the boat in the context of its surveillance activities but Frontex did not determine that the boat was in a potential emergency situation. The aircraft was then obliged to return to base due to deteriorating weather conditions (strong winds). The following day, after weather conditions improved, and following reports of a possible shipwreck, Frontex sought to send the aircraft back to the coordinates of the possible shipwreck. While the Italian RCC did not initially respond, the aircraft subsequently returned as part of the pre-established flight pattern for surveillance.
20. In the case of the Pylos shipwreck, as noted above, the aircraft that initially detected the Adriana was at the end of its mission (in the context of surveillance activities under Joint Operation Themis) and was obliged to return to base as it had reached its fuel limit. At various occasions, starting from 16.35 on 13 June 2023, Frontex contacted the Greek authorities offering to assist in the response to the ongoing emergency situation with its surveillance aircraft. The Greek authorities never responded to these offers. At 18.45 on 13 June, a Frontex remote piloted aircraft (RPA) took off, as scheduled under its flight pattern, to undertake surveillance activities in the context of its EUROSUR aerial surveillance. Its flight pattern included the Greek SAR region, where the Adriana was located. However, the Greek authorities asked Frontex to send the RPA to survey an overcrowded sailboat off the coast of Crete. The sailboat was subsequently subject to an SAR operation. Frontex again offered to assist with surveillance of the Adriana, after it had established that the HCG was in control of the ongoing rescue operation. No response was received from the Greek authorities. At 23.20, the RPA resumed its flight pattern and Frontex directed it to the last known coordinates of the Adriana. At 4.05, the RPA arrived at the coordinates: no signs of the Adriana were visible but nine boats (including one from the HCG) and two helicopters were carrying out rescue activities. At 5.31, when the RPA reached the limits of its fuel, Frontex offered to direct another aircraft to the site. At 7.48, the Greek RCC replied, stating that no further assistance was required.
Arguments by civil society
21. In response to the consultation, civil society organisations contended that Frontex should have returned to assist with the ongoing incident at Pylos. They argued that, based on the applicable rules[21], where Frontex units have reason to believe that a vessel or any person on board is in a phase of uncertainty, alert or distress, not only should Frontex transmit all available information to the relevant RCC and place itself at its disposal but, while awaiting instructions from the RCC, it should also “take all appropriate measures to ensure the safety of the persons concerned”. This would imply returning to the site with available assets.
Findings of the FRO
22. In the SIR on the Pylos shipwreck, the FRO made reference to the “extraordinary” efforts undertaken by Frontex to follow up on the initial sighting and support national authorities in their efforts. This included its assessment of the availability of surface assets from joint operations, to redirecting an aircraft to leave the operational area of JO Themis and its subsequent repeated offers of assistance to the Greek authorities (which remained unanswered). In accordance with the terms of the service request, Frontex redirected its RPA to the site of the Pylos shipwreck, with a view to assisting as part of the ongoing SAR operation. The FRO made certain recommendations to Frontex in relation to how it follows up on sightings of potential maritime emergencies.
23. In the SIR concerning the Crotone shipwreck, the FRO stated that Frontex collected all relevant information and transmitted this in a timely manner to the Italian authorities. The FRO pointed out that, once Frontex became aware of the shipwreck, it offered support from the air, suggesting the early take-off of a surveillance plane but did not receive a written reply to that offer. The Frontex aircraft subsequently returned to the coordinates as part of the established flight plan.
Designation of emergency status
Arguments by Frontex
24. Frontex has no internal rules or guidelines on the designation of the status of emergency situations. [22] Frontex’s representatives said that this is because only a coordinating RCC can make such a designation.
25. Where Frontex aerial surveillance picks up vessels in potential emergency situations, the relevant details that can be observed – sea state, course and speed of the boat, sea worthiness, level of occupancy visible, information from thermal imagery, visible presence of life saving devices – are noted in the sighting report. Such information is immediately shared with the coordinating national RCC, other relevant RCCs and entities involved in the ongoing situation. It is then for the coordinating RCC in question, based on the information at its disposal, to determine whether the vessel is in an emergency situation and, if so, which phase (uncertainty, alert or distress)[23].
26. In the case of the Crotone shipwreck, Frontex’s surveillance of the vessel did not indicate that the boat was in a potential emergency situation. The boat was moving at a steady speed and on a steady course and, while there was significant thermal imagery from below deck, the boat was in a seaworthy state.[24]
27. In the case of the Pylos shipwreck, Frontex’s surveillance of the vessel indicated that the boat was heavily overcrowded and that there were no visible life jackets, but that the boat was moving at a steady speed and on a steady course and appeared to be in a seaworthy state.[25] Frontex immediately shared this information with the relevant authorities. As the Italian MRCC had already shared information about the boat with the Greek JRCC, the Greek authorities were assumed to already be in the role of coordinating the response to this potential emergency situation.
Arguments by civil society
28. In response to the consultation, certain civil society organisations contended that, based on the description of the Adriana at the time of Frontex’s sighting, the boat corresponded sufficiently to criteria indicating it should have been designated as being in distress, including due to the heavy overcrowding and lack of visible life saving devices. They contended that Frontex should have acted accordingly, including proactively directing its available assets to the site and issuing a Mayday relay (see below).
Findings of the FRO
29. In the SIR concerning the Crotone shipwreck, the FRO acknowledged the legal framework in relation to the declaration of search and rescue cases. The FRO made certain recommendations to Frontex concerning the description of the status of boats at sea and the need for consistency.
30. In the SIR concerning the Pylos shipwreck, the FRO acknowledged the legal framework and made certain recommendations as regards Frontex’s role in assessing whether a boat is in a state of emergency.
Issuance of Mayday relays
Arguments by Frontex
31. Frontex has no internal written rules or guidelines on the issuance of Mayday relays. Frontex’s representatives indicated that EST team leaders are sent on training for dealing with potential emergency situations. Many members of the EST have professional backgrounds in which they will have developed familiarity with and experience of responding to maritime emergencies and the related marine VHF[26] radio protocols.
32. Where a Frontex surveillance asset records the first sighting of a vessel and determines that there is grave and imminent danger to the vessel and life, and the national competent rescue and coordination centre is not informed, Frontex will issue a Mayday relay. Decisions to issue Mayday relays are made by the EST team leader, with input from the national SAR expert, and in accordance with the applicable legal framework (EU and international law[27]). Such decisions are based on the verifiable information identified by Frontex in the context of its surveillance. It cannot take into account information that it cannot itself verify. In taking such a decision, Frontex must take into account all factors, including the potential problems caused by prematurely issuing a Mayday call.
33. Frontex has issued Mayday relays, based on its surveillance, on a number of occasions. Typically, this would be where a boat was in a severe state of non-sea worthiness and about to sink or where there are already people in the water, that is, in situations where there is an imminent danger to the vessel and/or human life.[28]
34. In the case of the Crotone shipwreck, Frontex’s surveillance did not indicate that the boat was in an emergency situation (see above).
35. In the case of the Pylos shipwreck, while Frontex’s surveillance indicated that the boat was heavily overcrowded and no life jackets were visible, it did not consider that the boat was in “grave and imminent danger” at that stage. Moreover, the Greek JRCC was informed.
Arguments by civil society
36. Certain civil society organisations indicated that, based on the evidence available to Frontex following its sighting and the information made available by the Italian MRCC, Frontex should have issued a Mayday relay.
Findings of the FRO
37. In the SIR concerning the Crotone shipwreck, the FRO noted that all parties that witness maritime emergencies have the option to issue Mayday relays, and referred to circumstances where Frontex had previously issued such relays. In such cases, Frontex also had the possibility to send sightings from its assets to the relevant RCC.
38. In the SIR concerning the Pylos shipwreck, the FRO concluded that, while it complied with its obligations in the response to the Adriana incident, 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. The FRO noted that the requirement of ‘imminent danger’ to a vessel or human life had in the past been interpreted to cover situations of significant uncertainty, with a likelihood that people may die within a matter of hours. The FRO noted the additional factors that the team leader also considers before issuing a Mayday relay. These include the response from the coordinating RCC: (i) whether the RCC involved has already explicitly assumed responsibility over the incident or (ii) it can be safely assumed that an RCC has taken over the responsibility for an incident even though an explicit confirmation is not available; (iii) whether the information recorded by the Frontex aircraft introduces new information compared to previously available information; (iv) whether there are doubts about the effectiveness of efforts to assist the vessel in distress; and (v) whether competing Mayday calls have been issued for the same area and/or at the same time and which has priority.
Interaction with coordinating authorities during search and rescue activities
Arguments by Frontex
39. Where Frontex sends sighting reports and/or is aware of an ongoing SAR operation, it seeks updates from the coordinating RCC. It may also proactively offer assistance or make assets available to the coordinating RCC. However, there is no obligation on national authorities to provide updates or information to Frontex. Seconded staff from national coastguards who are on duty with the EST may have direct communication with national authorities. The ‘coordinating officers’ – Frontex staff members who coordinate activities in joint operations and liaise between national authorities and the Frontex Executive Director – may also seek updates, where they are aware of ongoing or concluded SARs in the operational area of their joint operation or involving assets from the joint operation. Frontex stated that, where an RCC is coordinating a SAR operation (and possibly other activities), they will have a lot of activities to organise and may not prioritise communicating with Frontex or other national authorities, where they are not directly involved in the SAR.
40. In the case of the Pylos shipwreck, in parallel with Frontex’s repeated offers to assist with the ongoing SAR operation (see above), Frontex also asked for updates from the Greek authorities but did not receive any. The SAR expert in the surveillance room, who is a member of the Greek Coast Guard, was also in contact with the RCC. However, he did not have access to the detailed information regarding the Greek RCC’s activities and information it had in the context of its coordination role.
Findings of the FRO
41. In the SIR concerning the Adriana shipwreck, the FRO noted that communication between the RCCs and Frontex is crucial for understanding the context of the sighting and to clarify responsibilities.
Use of cameras on financed/co-financed assets
Arguments by Frontex and findings of the FRO
42. In the context of joint operations, there are assets that are co-financed with the Member State and pledged to a joint operation, there are assets financed (owned or leased) and managed by Frontex, and there are national assets that may receive co-financing where they participate in activities under a joint operation. Such assets are obliged to have camera and recording technologies and participants are obliged to use body cameras when they are participating in activities under a joint operation.
43. Frontex’s representatives stated that they were aware of instances where body cameras on staff and/or cameras on assets deployed in the context of joint operations had not been activated during serious incidents. Even where cameras are used, the images are retained for only 15 days and thus the FRO is considering how best to address this short retention period.
44. In the case of the Pylos shipwreck, the HCG boat that was involved in the SAR operation is not a pledged asset under Joint Operation Poseidon. While it may receive co-financing where it participates in activities under JO Poseidon, this was not the case in the context of that SAR operation.[29]
The Ombudsman’s assessment
45. Frontex must comply with fundamental rights[30] in all its activities[31], including in its direct or indirect engagement in search and rescue (SAR) operations[32]. In this context, it must also comply with the UN Convention on the Law of the Sea, concluded by the EU[33] and take into account the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea [34], in addition to the International Maritime Organization (IMO) Guidelines.[35] In the specific context of its surveillance activities, Frontex’s responsibilities in responding to maritime emergencies are also defined under EU law[36].
46. Under this legal framework, Member States are obliged to render assistance to any vessel or person in distress at sea and, during a sea operation, Member States must ensure that their authorities comply with that obligation, in accordance with international law and respect for fundamental rights. This obligation applies regardless of the nationality or status of the person or the circumstances in which that person is found.[37] This obligation also applies to Frontex where it provides technical and operational assistance in the context of joint operations and is followed by Frontex as guidance in its aerial surveillance activities.
47. According to the international and EU legal framework referred to above, the primary functions of SAR are the responsibility of the national authorities of the countries in whose territorial waters or SAR regions an incident occurs. This legal framework stipulates that ”any authority or element of the search and rescue organization having reason to believe that a vessel is in a state of emergency should give as soon as possible all available information to the rescue co-ordination centre …concerned. Rescue co-ordination centres… shall, immediately upon receipt of information concerning a vessel in a state of emergency, evaluate such information and determine the phase of emergency and the extent of operation required.”[38]
Designation of the state of emergency and obligations on Frontex in response to emergencies
48. Where Frontex believes that a vessel that it detects through its surveillance is in a state of emergency, it is obliged to notify the relevant national RCC, so the RCC can make a determination as to the phase of the emergency and decide on the necessary steps to be taken. The coordinating RCC has the exclusive competence to decide to launch, organise and coordinate an SAR operation or coordinate any other assistance to the boat[39]. As such, when it receives information or an emergency call, the RCC itself makes its determination on the phase of a maritime emergency (whether a vessel or person is in the phase of uncertainty, alert or distress), as a prerequisite for its decisions on launching SAR operations. Frontex is not responsible for the fundamental rights implications of decisions taken by national authorities on designating the emergency phase or whether to launch a SAR operation.
49. In joint maritime operations, Frontex has a coordinating role. As the Ombudsman has already pointed out, joint operations (JOs) pose various challenges to determining the responsibility of each actor involved in these operations.[40] Relevant documents inspected in the context of this inquiry[41] showed that national and Frontex officials, including the coordinating officer and the ‘operational liaison officer’ for Frontex surveillance aircraft, operate together within the Joint Coordination Board of the International Coordination Centre (ICC)[42], while maritime joint operations have a complex command and control system. However, on the basis of the inspected documents, it is clear that the RCC in whose SAR region an emergency occurs takes the coordinating role for SAR activities, which occur during such operations[43], while the ICC is kept informed. This is also stated in the documents setting out the terms of the joint operations consulted during the inquiry[44]. The units participating in the JO are required: (i) to inform the relevant RCC about vessels they believe are in a potential emergency situation; (ii) to inform the ICC about such situations, and (iii), while awaiting instructions from the RCC, to take all appropriate measures to ensure the safety of the persons concerned.
50. It follows that, whether Frontex acts in the context of a joint maritime operation or provides surveillance under the EUROSUR framework, it is obliged to collect and promptly provide accurate and detailed information about a potential emergency situation to the relevant RCC either on its own initiative or on the RCC’s request, and place its assets at the disposal of the RCC.[45] In the case of the Pylos (Adriana) and Crotone shipwrecks, the available evidence shows that Frontex did so.
51. Where Frontex, through its planned surveillance activities becomes aware of a vessel in a potential emergency situation, it should try to maintain surveillance for as long as possible. This is in line with the recommendations set out in the Frontex Fundamental Rights Action Plan and other recommendations[46] reviewed by the Ombudsman inquiry team. It may be obliged to discontinue surveillance for different practical, operational and safety reasons but, in such circumstances, it should attempt to return to the site. In doing so, Frontex must comply however with the terms of its service requests and operational plans, and must also follow orders or directions given by an RCC responsible for coordinating a response to an emergency or emergencies.
52. The Ombudsman’s inquiry showed that Frontex does comply with these recommendations. The inquiry team reviewed serious incidents in which Frontex surveillance assets maintained their presence at ongoing maritime emergencies, as well as where Frontex attempted to divert a surveillance asset to an ongoing emergency but did not receive authorisation to do so.
53. In the case of the Crotone shipwreck, Frontex offered to send its aircraft to the reported incident before the scheduled flight plan began but did not initially receive a reply from the Italian RCC.
54. In the case of the Pylos shipwreck, Frontex offered on various occasions to assist the Greek RCC by providing surveillance but, according to Frontex, the Greek RCC did not reply. This effort was commended by the FRO in the SIR. However, the Greek RCC requested Frontex to send the available aircraft to another maritime emergency involving a migrant boat off the coast of Crete, which subsequently became an SAR operation. As such, Frontex complied with its obligations to follow orders or directions given by the RCC responsible for coordinating a response to an emergency or emergencies, as well as with the terms of the service request governing its aerial surveillance.
55. Frontex cannot be said to have breached any of the relevant rules and procedures. However, these plans and procedures risk limiting Frontex’s ability to act independently in order to fulfil its fundamental rights obligations. While some of this is the result of its mandate as set out in the legislation, Frontex should ensure that the provisions on aerial surveillance in operational plans and in service requests under EUROSUR, while compliant with law, enable it to act, to the greatest extent possible, on the recommendations to maintain surveillance at ongoing maritime emergencies.
56. The Ombudsman will make a suggestion to this end below.
Issuance of Mayday relays
57. As stated above, in certain circumstances, third parties (including Frontex or its assets) may issue Mayday relays where they witness a situation in which they believe there is an imminent threat to life and they are not aware of an ongoing SAR operation. However, there is no obligation on RCCs to launch SAR operations where they receive Mayday calls. In deciding to launch SAR operations, RCCs must take into account a number of factors, which third parties may not be aware of.
58. According to Frontex, it issues Mayday relays if: (a) it can verify itself that there is imminent danger to life (that is, where a boat is in a severe state of non-sea worthiness and about to sink or where there are already people in the water or the boat is on fire), and (b) it believes the relevant RCC is not aware of the emergency or not already coordinating a response to the emergency.
59. Frontex has issued Mayday relays on at least two occasions[47], where it determined that there was an immediate threat to life and the relevant RCCs were not aware of the incident (and thus not coordinating an SAR operation).[48]
60. Various parties have claimed that Frontex should have issued a Mayday relay following its initial sighting of the Adriana. As noted above, the Ombudsman’s Office does not have expertise in the application of SAR obligations under international maritime law, nor does it have technical expertise on how to respond to maritime emergencies. However, the Ombudsman notes that, at the time of the initial sighting by Frontex’s aircraft, the Greek RCC was already aware of the Adriana, and had been informed by the Italian RCC about the condition and location of the Adriana even before Frontex transmitted the report of the sighting from its aircraft.[49] Frontex shared in a timely manner with the Greek RCC its sighting reports, together with the images and video footage taken. Based on its sighting, Frontex’s EST did not deem that there was an imminent threat to the vessel. Frontex also forwarded the information received from the NGO (even though this was also addressed to the Greek RCC). Subsequent to Frontex’s sighting, a number of boats were directed by the Greek RCC to the Adriana to offer assistance (notably to provide supplies). These boats also provided information to the Greek RCC via the relevant VHS channel. Based on the available information, it would appear that the HCG vessel that arrived on site also did not deem it immediately necessary to engage in rescue activities (that is, evacuating the boat). However, the actions of the HCG are the subject of national investigations, and it is not for the Ombudsman to take a position on this.
61. In instances where a Mayday call (or relay) is issued, there are many factors that may determine whether the coordinating RCC can coordinate an SAR operation that prevents the loss of life at sea (for example, distance from shore, availability of boats with rescue capacity, the nature of the vessel in distress itself). In any case, it is for the relevant RCC to coordinate the response to an emergency, and Frontex has no mandate to prompt or compel the national RCC to launch, coordinate or monitor SAR operations. The purpose of issuing a Mayday relay is to notify both the relevant RCC and vessels in the vicinity of a maritime emergency involving imminent threat to life of the coordinates and distress situation of a vessel or person(s). It is then for the RCC to coordinate the response and, if possible, for vessels in the vicinity to provide assistance, unless instructed not to do so by the RCC. The Ombudsman notes that, in two instances where Frontex issued a Mayday relay, the relevant RCCs apparently did not subsequently launch SAR operations.
62. Frontex should consider each potential emergency situation individually in the context in which it occurs. This means also taking into account the information provided by the RCC responsible for coordinating a response. Frontex must also, on each occasion, take into account the objectives pursued by the Convention on the Law of the Sea, so as not to hamper the effective implementation of the duty to render assistance at sea laid down in that convention.[50] If Mayday relays are issued without due consideration of their potential wider impact on coordination efforts, they may inadvertently compromise the coordination of the assistance to the boat in distress by the relevant RCC.[51] Against this background, the Ombudsman considers that the approach followed by Frontex with regard to the issuance of Mayday relays is appropriate in that it recognises the exclusive SAR competence of the relevant RCC, while ensuring that Frontex can react when its surveillance detects maritime emergencies where there is an imminent threat to the vessel or those on board.
63. As the FRO noted, Frontex appears to have followed this approach in response to the Pylos incident (and other incidents). However, the FRO also concluded that Frontex should reflect on how to approach the issuing of emergency signals in similar incidents in the future.
64. Against this background, the Ombudsman considers that Frontex’s approach should be explicitly laid down in the form of guidance for relevant staff from the European Surveillance Team, with guidelines that make it clear when, within the framework of EUROSUR aerial surveillance or in the context of joint operations, Mayday relays should be issued.
65. While EST staff have SAR expertise and are aware of the relevant law and international protocols, Frontex’s surveillance activities necessarily imply applying such expertise in a different context to the typical situations in which Mayday calls are issued or received, notably due to the nature of surveillance from a distance and the specific nature and sensitivities of migrant boats. As such, it would appear essential to have dedicated guidelines on how to react to maritime emergencies detected by Frontex’s aerial surveillance. This is even more so as detecting such emergencies, from a distance, is likely to be extremely stressful, with the staff concerned witnessing potentially life-threatening situations in the knowledge that they cannot have a definitive say on the ultimate response to the emergency.
66. As noted by the FRO, this should cover all relevant factors, including taking into account whether the relevant RCC has clearly communicated its actions and confirmed that it is coordinating an SAR operation. This should also cover the issuance of Mayday and, potentially, other emergency signals. Frontex 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.
67. Similarly, while operational plans for joint operations include provisions on search and rescue[52], they do not explicitly set out any guidance on how to issue Mayday relays or other signals. In addition, they do not detail steps that could be taken in the context of maritime emergencies while awaiting instruction from the relevant RCC[53].
68. To address this, operational plans should also include provisions on how, in responding to potential maritime emergencies, the responsibilities are distributed between the national authorities in the host country, Frontex and the authorities of other participating Member States, inside of the ICC and between the ICC and the RCC.
69. In addition, detailed protocols (or operating procedures) should be adopted for each joint maritime operation, including on the use of technical means (such as cameras) in joint operations allowing for the documentation of SAR operations. If the provisions of the operational plans are not respected by the host or participating Member States, Frontex should use all means at its disposal to address this lack of compliance.
70. In light of the findings above, the Ombudsman will make suggestions for improvement concerning Frontex’s EUROSUR surveillance activities and joint maritime operations.
Cooperation between Frontex and national authorities
71. The EU principle of sincere cooperation should be the guiding principle in the response to maritime emergencies and SAR operations in which Frontex and Member States are involved. This is even more so as there are no provisions under EU law specifically laying down obligations on Member State authorities concerning the search and rescue of persons or vessels in danger or distress at sea. In the case of the Adriana shipwreck and other incidents reviewed in the context of the Ombudsman’s inquiry, the Ombudsman is concerned by the lack of timely and proactive cooperation and communication with Frontex by some national RCCs and other authorities responsible for SAR activities.
72. Frontex’s aerial surveillance activities do not include a proactive SAR function. Instead, SAR is a task that may arise during border surveillance operations at sea. Frontex provides its aerial surveillance services on request of a Member State. However, Frontex should accept only those requests, which ensure full respect for fundamental rights and enable Frontex to contribute to SAR operations to the greatest extent possible, within the scope of its mandate and tasks.
73. To this end, Frontex could consider making the provision of its surveillance activities conditional on the agreement of the relevant Member State to the presence of its aerial assets during SAR operations, where possible, unless this could be detrimental to the operation itself. Certainly, the ‘service requests’ Frontex concludes with Member States should not allow for any pre-emptive or territorial limitations to its surveillance activities. Even if Frontex is not directly involved in concrete rescue activities of a SAR operation at sea, the presence of its aerial surveillance assets at the scene may contribute to the operation both at the time (for example, helping to identify persons in the water) and in terms of ensuring accountability for compliance with fundamental rights and SAR obligations.
74. It is of paramount importance that, in the context of the response to maritime emergencies and/or SAR operations, communication between Frontex (the European Surveillance Team) and the relevant national authorities is ensured and that accurate and comprehensive information is exchanged in a timely manner.[54] As explained by Frontex representatives and as reflected in the IAMSAR manual, responding to maritime emergencies involves many steps, and it is important that Frontex is made aware of the evolving state of play.
75. Although representatives of the national authorities (including SAR experts) are present in the European Surveillance Room, and there is a liaison officer assigned for Frontex’s surveillance activities, this does not appear to guarantee effective communication. In the absence of such information, the EST may not be able to determine what actions have been taken in response to maritime emergencies. To ensure these roles can better facilitate effective and timely communication with national authorities, including verifying information received by Frontex from different sources, the responsibilities of these roles should be clearly defined in Frontex’s internal rules.
76. Furthermore, Frontex should make its aerial surveillance services conditional on the requirement for national authorities to keep it informed on the response to maritime emergencies and/or search and rescue operations within a reasonable time, if this does not compromise the operations themselves. Similarly, service requests should include the obligation on national authorities to respond officially to offers of assistance by Frontex and, where they decline to accept such offers, to provide clear explanations as to why.
77. Crucially, in the case of evidence that national authorities are responsible for serious or systematic failure to comply with their SAR and related fundamental rights obligations in the context of joint operations, the Executive Director should reflect on whether it is necessary to suspend activities with that Member State, in accordance with Article 46 of Regulation 2019/1896. While this has previously been suggested following violations concerning ‘pushbacks’ of migrants, the Ombudsman believes that Frontex’s continued cooperation in search and rescue in such circumstances may have serious reputational implications for Frontex. This is particularly relevant in the context of the ongoing inquiries into the response by the Greek authorities to the Pylos incident.
78. In light of the foregoing, the Ombudsman will make suggestions for improvement regarding the cooperation between the Member States and Frontex, and consequences where there are concerns about the nature of such cooperation or the compliance of Member State authorities with their fundamental rights obligations.
Role of the Fundamental Rights Officer in Frontex’s search and rescue activities
Arguments presented to the Ombudsman
Arguments by Frontex and the FRO
79. According to the various internal rules and procedures setting out the basis for Frontex’s surveillance activities, the Fundamental Rights Officer (FRO) is part of the European Surveillance Team and fundamental rights monitors (FROMs) should be present, to the extent possible, to provide advice on fundamental rights in the context of such surveillance activities.
80. As regards joint operations, FROMs advise the coordinating officer on fundamental rights matters. FROMs can provide advice at any time when a fundamental rights concern is brought to their attention or during the conduct of a monitoring mission. A meeting with the coordinating officer is scheduled at the end of each monitoring mission to discuss and address the findings and recommendations of the FROM.
81. In the case of the Crotone shipwreck, which occurred during the weekend (between Saturday and Sunday 25 and 26 February 2023), the FROM on duty on Monday 27 February 2023 ”immediately”[55] reacted by calling the EST team leader to request information orally and via email by also alerting the SIR team in the FRO.
82. In the case of Pylos shipwreck, the FRO was notified, along with the other relevant Frontex sections, when the sighting report of the surveillance aircraft was distributed at 10.35 am on 13 June 2023. However, no FROM was present in the European Surveillance Room or was involved in the discussions of the EST on that day. On 14 June, at the beginning of the working day, the FROM assigned to the EST for that day checked the sightings received during the night and “immediately” went to the ESR to assist.
Arguments by civil society
83. One of the contributors stated that, even where the FRO issues SIRs, the FRO is not always able to investigate conclusively potential violations of fundamental rights.
The Ombudsman’s assessment
84. The Ombudsman inquiry team inspected the final serious incidents reports (SIRs) issued by the FRO for maritime emergencies in which Frontex was involved between 2020 and 2023, including the SIRs concerning the Pylos shipwreck (issued on 1 December 2023) and the Crotone shipwreck (issued on 17 November 2023).
85. All SIRs inspected in the context of this inquiry show that the FRO interacted with all relevant actors inside Frontex, carefully examined all evidence and requested Frontex to provide documents clarifying matters under the SIR investigation. The FRO checked the outcome of Frontex’s debriefings of victims (if any) and asked for explanations from national authorities and other actors involved in SAR, and asked for technical expertise from third party experts. In the case of the Adriana shipwreck, for instance, the FRO verified all sighting reports of Frontex aerial assets involved, their mission reports and logbooks prepared by the EST.
86. SIRs may give rise to recommendations by the FRO addressed to Frontex and/or the national authorities. The recommendations in the SIRs consulted in the context of this inquiry appear appropriate and are in line with the recommendations issued by the FRO on the service requests concerning aerial surveillance and in opinions about multipurpose aerial surveillance in the Central Mediterranean, which were assessed by the Ombudsman inquiry team.
87. The Executive Director does not have a prescribed deadline to take a stance on the initial recommendations made by the FRO in SIRs.[56] However, on the basis of recent commitments by the Executive Director[57], the Ombudsman trusts that the recommendations issued in the final SIRs relating to the Crotone and Adriana shipwrecks will be taken seriously and implemented without delay.
88. That being said, based on the SIRs reviewed in this inquiry, it appears that the FRO often considerably exceeds the one-month deadline foreseen for issuing final SIRs.[58] For example, in the case of the Adriana shipwreck, the final SIR was issued in December 2023, almost six months after the incident occurred. This may be caused by the lack of cooperation of national authorities in the FRO’s investigations related to SAR operations or due to other factors beyond the FRO’s control. While the FRO looks at the actions of both Frontex and national authorities in the context of a serious incident, the lack of cooperation by national authorities (failure/refusal to provide information) appears to play a major role in delays in issuing SIRs and the inability of the FRO to provide a detailed assessment of the compliance by Member States with their fundamental rights obligations.
89. Completing SIRs in a timely manner is important in terms of ensuring accountability but it is also important that the FRO launch the relevant procedures for compiling SIRs without delay, notably due to practical considerations, for example data retention periods pertaining to photo or video evidence gathered by national authorities.
90. In the context of the response to a maritime emergency, the FRO’s role is also to provide advice, through the FROMs, as part of the EST. No FRO representative was present in the European Surveillance Room during the initial surveillance sightings in either the Crotone or Pylos incidents. This was so in the case of the Pylos incident even though the surveillance took place during normal working hours. The FRO was notified, along with the other relevant sections of Frontex, when the sighting report of the surveillance aircraft was distributed at 10.35am on 13 June 2023 and the assigned FROM received two updates from the EMT, one on the 13 June 23 and the other early in the morning on 14 June 2023. However, the shipwreck occurred overnight. It was following this second update on the morning of 14 June that a FROM made contact with the EST.
91. The Ombudsman understands that, given the multiple tasks of the FRO, the FRO lacks resources to ensure a presence at all Frontex operations at all times. Nevertheless, the Ombudsman considers that the presence of an FRO representative in the European Surveillance Room is of particular importance in the context of maritime emergencies detected in the context of Frontex’s surveillance, and which may lead to SAR operations. To address this, the Ombudsman will make a suggestion for improvement below.
Conclusion
The Ombudsman considers that no further inquiries are justified into how Frontex deals with potential maritime emergencies. However, the Ombudsman makes suggestions for improvement below to address a number of shortcomings identified in the inquiry.
Frontex will be informed of this decision.
Suggestions for improvement
A. If the FRO identifies persistent violations of fundamental rights by a Member State in responding to maritime emergencies, or should Frontex become aware of such serious violations following formal inquiries or court judgements, Frontex should consider terminating, withdrawing or suspending Frontex’s activities with the Member State in question, in line with Article 46 of Regulation 2019/1896. This should also be considered in the context of the Pylos shipwreck, for which there are ongoing national investigations. 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.
B. Frontex should conduct a sustained and serious organisation-wide reflection, led by its Executive Director and with the involvement of members of its Management Board, on how it upholds its fundamental rights obligations in its response to maritime emergencies and search and rescue operations.
C. Frontex should adopt and publish internal guidelines on how to react to maritime emergencies detected by Frontex’s aerial surveillance, including regarding the issuance of Mayday relays and possibly also other emergency signals. This should cover all relevant factors, including taking into account whether the relevant RCC has clearly communicated its actions and confirmed that it is coordinating an SAR operation, as well as potential concerns about the record of national authorities. Frontex 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 its assessments. Reported dangers to children should be given the highest priority.
D. As regards joint maritime operations coordinated by Frontex, the operational plans should also include provisions on how to respond to maritime emergencies, while awaiting instructions from the relevant rescue coordination centre, including regarding the issuance of Mayday relays.
The operational plans should also:
(i) include provisions on how the responsibilities in maritime emergency situations/potential SAR incidents are distributed between the host country, Frontex and participating Member States;
(ii) specify the obligations of each actor intervening in joint operations in relation to SAR, and specify the steps that Frontex and staff in national coordination centres should take upon the detection of a maritime emergency situation;
(iii) specify the conditions for the use of equipment (such as cameras) and include possible sanctions if this not done; and
(iv) specify the role of coordinating officer in SAR operations for each maritime joint operation.
E. In the context of service requests for aerial surveillance under EUROSUR, Frontex should accept only those requests that provide for full respect of fundamental rights during SAR operations and do not include any pre-emptive or territorial limitations to its surveillance activities. Furthermore, Frontex should make its aerial surveillance service conditional on the agreement of the relevant Member State that:
(i) the relevant authorities will keep Frontex updated in a timely manner on the response to ongoing maritime emergencies in which Frontex assets are or have been involved, provided this does not compromise the operation; and
(ii) Frontex’s aerial surveillance assets can be present at and assist SAR operations, where possible, unless this could be detrimental to the success of the SAR operation itself, and that national authorities respond to Frontex’s offers of assistance and provide explanations where they decline such offers.
F. The FRO should introduce practical arrangements to ensure that, where serious maritime incidents are detected in the context of Frontex’s surveillance activities, an FROM is present in European Surveillance Room. If the physical presence of the FROM is not possible, the assigned FROM should be available and able to provide advice on fundamental rights compliance to such incidents in real time.
Emily O’Reilly
European Ombudsman
Strasbourg, 26/02/2024
Annex 1: Timeline of Frontex’s actions during the Pylos incident
| Time (UTC) | Action | Legal basis/relevant document |
| 13/06/238.01 | Italian MRCC notifies Greek JRCC (with Frontex in copy) about the information it has received concerning the Adriana – 750 passengers and reports of dead children | International law, including the UN Safety of Life at Sea (SOLAS) Convention (Chapter 5) and the International Convention on Maritime Search and Rescue (SAR Convention, Chapter 2), which set out rules on obligations on RCCs and other parties in the context of maritime incidents, including on responsibilities and coordination roles, as well as on the provision of information and assistance. |
| 8.33 | Frontex’s aerial asset Eagle 1 is redirected to the coordinates of the Adriana. Eagle 1 is a surveillance asset operating under Joint Operation Themis. It was patrolling as part of its regular surveillance activities under JO Themis (and as such bound by the rules of that operational plan). While the coordinates of the Adriana were outside the Italian SAR region, they were very were very close to the flight plan.At this stage, it was not clear if the Greek JRCC was coordinating a response to a maritime emergency but, once the MRCC Italy sent information about the Adriana, the Greek JRCC is responsible for the incident. | – SOLAS Convention (Chapter 5) and the SAR Convention (Chapter 2), which set out rules on obligations on RCCs and other parties in the context of maritime incidents, including on responsibilities and coordination roles, as well as on the provision of information and assistance.- Regulation 656/2014 (Art. 9(2)), which sets out obligations on providing information to relevant authorities by Frontex- Regulation 2019/1896, which sets out obligations on providing information to relevant authorities by Frontex- Operational Plan for JO Themis- Frontex Surveillance Aircraft – Standard Operating Procedure |
| 9.47-9.57 | Eagle 1 conducts surveillance of the Adriana. It communicates the information (and sends the video footage) to the Greek JRCC. Based on its surveillance, the Frontex EMT did not deem that there was an imminent threat to the boat or that it was in a state of distress.Eagle 1 reaches BINGO fuel and is forced to return to base. | According to the SAR Convention and, in particular, Regulation 656/2014 (Article 9(2)) |
| 11.00 | The Greek Coast Guard (HCG) established contact with the boat. From this moment, it is clear that the Greek JRCC is coordinating a response to the maritime emergency, and has ultimate authority in issuing orders to vessels in the context of that response. | International law, including the UN Safety of Life at Sea (SOLAS) Convention (Chapter 5) and the International Convention on Maritime Search and Rescue (Chapter 2), which set out rules on obligations on RCCs and other parties in the context of maritime incidents, including on responsibilities and coordination roles, as well as on the provision of information and assistance. The practical application of the SAR Convention is set out in the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual.It should be recalled that there are 5 phases for designating maritime incidents, two of which are non-emergency and three are emergency phases (uncertainty, alert and distress). The fact the HCG sent a helicopter demonstrates that the Greek JRCC had assumed a planning, coordination and guidance role in respect of the Adriana under International Law (SAR Convention). As a result, the Greek JRCC had tactical command of the incident. |
| 12.35 | A HCG helicopter carries out surveillance of the Adriana. | |
| 15.00 | The HCG helicopter again carries out surveillance of the Adriana. | |
| 16.35 | Frontex asked for an update and offers assistance with surveillance by aircraft. The RPA (drone) Heron 2, which was scheduled to depart for surveillance on a pre-approved flight plan including the coordinates of the Adriana, was available.According to Frontex, no reply was received from the Greek JRCC.Heron 2 is an asset dedicated to MAS activities under the service request by Greece in the context of EUROSUR. | Under international law and EU law (mentioned above), Frontex is obliged to provide information to the relevant RCC and to offer support.The terms of surveillance conducted under the auspices of EUROSUR are governed by the Regulation 2019/1896, which repealed EUROSUR Regulation 1052/2013). According to Article 28(2) of the Regulation, Frontex surveillance assets provide information at the “request” of a national coordination centre. This is the basis for the ‘service requests’, which set out the general terms guiding Frontex’s surveillance activities. |
| 18.50 | The Greek JRCC asked Frontex to direct Heron 2 to assist in the surveillance of a different overcrowded migrant boat that was adrift off the coast of Crete. This boat was subsequently subject to an SAR operation. | As with the request and offer at 16.35 (above). |
| 19.40 | The HCG boat n920 arrives at the Adriana. | |
| 19.50 | Heron 2 arrived on the site of the boat adrift. | The surveillance is provided in the context of the EUROSUR activities, based on the service request mentioned above.However, in addition, as the incident is an SAR, Frontex must follow the instructions of the coordinating RCC, in accordance with the provisions of EU and international law, set out above. |
| 21.34 | Frontex again offered to assist with aerial surveillance by Heron 2 at the location of the Adriana.Again no reply by the Greek JRCC. | See above |
| 21.52 | Frontex again offered assistance to leave the location of the boat in Crete, which it considered was “floating properly”.According to Frontex, no reply was received. | See above |
| 23.15 | Heron 2 provided a final update on the boat in Crete in which it noted that a HCG boat was providing assistance. | |
| 23.20 | The Frontex EMT directed Heron 2 towards the last known position of the Adriana, which was within the pre-approved flight plan of Heron 2 for that day. | The flight plan was pre-approved by the Greek authorities in line with the service request under EUROSUR. |
| 2.46 (next day) | The Frontex EMT informed the Greek authorities that Heron 2 was heading towards the last-known coordinates of the Adriana, which were within the pre-approved flight plan.According to Frontex, no reply was received. | See above |
| 4.05 | Heron 2 arrived at the last known coordinates of the Adriana. No signs of the Adriana were visible but nine boats (including one from the HCG) and two helicopters were carrying out rescue activities. | |
| 5.31 | Frontex informed the JRCC and NCC that Heron 2 was reaching BINGO fuel and would have to return to based. Frontex offered to provide assistance with Eagle 1, which was already in the air (but in the Italian territory) as part of its standard flight plan of surveillance under JO Themis.No immediate reply was received. | See above – Frontex is required to provide details of available assets and to offer to make them available to RCCs but it is for the RCC to determine whether or not to use the assets and, if so, in what way or at all. |
| 5.55 | Heron 2 gave its final update and embarked on its course to base. | |
| 7.48 | The Greek RCC replied stating that no further assistance was required. |
Annex 2: Glossary of terms and abbreviations
General maritime terminology
SAR – search and rescue: The obligations and procedures governing the response to maritime emergencies are set out in international law, notably the International Convention on Maritime Search and Rescue (1979) and the United Nations Convention on the Law of the Sea (1982).
RCC – rescue coordination centre: According to international maritime law, national RCCs are responsible for coordinating SAR activities in their coastal waters. International waters are divided into search and rescue (SAR) regions, with national RCCs responsible for designated regions. In the Central Mediterranean Sea, the SAR regions are divided between Italy, Malta, Libya, and Tunisia.
Mayday calls and emergency signalling – The rules governing emergency signalling are set out in international law (above). The International Aeronautical and Maritime Search and Rescue (IAMSAR) manual sets out how these rules should be applied. A Mayday call is a distress signal, issued on designated VHS communication channels ( monitored by coast guards and other parties in the vicinity), requiring urgent response. A signal may be issued by the vessel in distress itself. Other parties that observe the vessel, but believe no Mayday call has been issued or received, may issue a Mayday relay. Maydays should be issued only when a person or boat is threatened by grave or imminent danger. There are two other emergency signals that may be issued on the designated VHS distress channel: PAN-PAN (used to signal an incident that is urgent but does not imply an immediate threat) and Sécurité (used to signal a situation that may impact on the safety of vessels).
Frontex terminology
FRO – Fundamental Rights Officer: – The FRO monitors how Frontex complies with its fundamental rights obligations and with advising the Executive Director on fundamental rights-related issues. The FRO and the staff of the Fundamental Rights Office, including fundamental rights monitors, have an independent role within the agency.
SIR – serious incident report – Where an activity in which Frontex has been involved is subject to concerns about potential fundamental rights breaches, the FRO is responsible for preparing a serious incident report to document the incident and make recommendations.
EUROSUR – European Border Surveillance system: Through EUROSUR, and based on ‘service requests’ from participating Member States, Frontex conducts multipurpose aerial surveillance using both manned aircraft and remote-piloted aircraft (RPAs or drones).
JO – joint operation – Frontex carries out JOs with EU Member State authorities, providing support for border management and law enforcement. As part of this, Frontex provides support for surveillance of border and pre-border areas (including at sea). Frontex has maritime assets (boats) and aerial assets (both manned and remote-piloted aircraft), which take part in activities defined in the ‘operational plan’. A Frontex-appointed ‘coordinating officer’ acts as the liaison between Frontex and the national authorities in the international coordination centre.
EST – European Surveillance Team: – Frontex’s aerial surveillance activities are coordinated on a constant basis (24 hours a day, seven days a week) by the EST, which sits in European Surveillance Room the Frontex headquarters in Warsaw. The EST includes Frontex staff and experts from national authorities, including SAR experts designated by national coast guards.
[1] In particular, the International Convention on Maritime Search and Rescue (1979) https://www.imo.org/en/About/Conventions/Pages/International-Convention-on-Maritime-Search-and-Rescue-(SAR).aspx and the United Nations Convention on the Law of the Sea (1982) https://www.imo.org/en/ourwork/legal/pages/unitednationsconventiononthelawofthesea.aspx
[2] As defined in the International Convention on Maritime Search and Rescue, there are three phases of emergency that should be used to describe a boat: uncertainty, alert and distress. There are different criteria that must be met for a boat to be described as being in each phase.
[3] A Mayday call is a distress signal, issued on designated VHS communication channels that are monitored by coast guards and other parties in the vicinity, requiring the most urgent response. The signal may be issued by the vessel in distress itself. Alternatively, other parties that observe the vessel, but believe no Mayday call has been issued or received, may issue a Mayday relay. The signal should be issued only when a person or boat is threatened by grave or imminent danger. In addition to Mayday, there are two other emergency signals that may be issued on the designated VHS distress channel: PAN-PAN (used to signal an incident that is urgent but does not imply an immediate threat) and Sécurité (used to signal a situation to the rescue coordination centre (RCC) and other vessels that may impact on their safety).
[4] In particular, Regulation 2019/1896 on the European Border and Coast Guard https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019R1896 and Regulation 656/2014 on establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014R0656
[5] Regulation 2016/1624 on the European Border and Coast Guard https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32016R1624
[6] Regulation 2019/1896 on the European Border and Coast Guard https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019R1896
[7] Regulation 2019/1896 Article. 1. g, h and i. Regulation 2014/656,
[8] EUROSUR is a framework for information exchange and cooperation between Member States and Frontex to improve situational awareness and increase reaction capability at the external borders. https://home-affairs.ec.europa.eu/policies/schengen-borders-and-visa/border-crossing/eurosur_en
[9] Regulation 2019/1896, Preamble, recitals 34-38
[10] https://www.copernicus.eu/en
[11] https://www.frontex.europa.eu/careers/who-we-are/structure/divisions/situational-awareness-and-monitoring-division/frontex-situation-centre/
[12] The Fundamental Rights Officer (FRO) monitors how Frontex implements its fundamental rights obligations in accordance with EU and international law. The FRO also advises Frontex’s Executive Director on fundamental rights-related issues. The FRO has dedicated staff in the Fundamental Rights Office, including fundamental rights monitors: https://www.frontex.europa.eu/fundamental-rights/fundamental-rights-at-frontex/fundamental-rights-office/.
[13] According to international maritime law, national maritime rescue coordination centres (RCC) are responsible for coordinating search and rescue activities in their coastal waters. However, international waters are also divided into search and rescue (SAR) regions, with national RCCs having responsibility for designated regions. In the Central Mediterranean Sea, the SAR regions are divided between Italy, Malta, Libya, and Tunisia, with the respective national RCCs having responsibility for their regions. It is the responsibility of anyone who discovers or learns about an emergency at sea to immediately alert the rescue centre responsible for that area.
[14] https://www.synigoros.gr/en/category/default/post/deltio-typoy-or-o-synhgoros-toy-polith-ereyna-to-nayagio-ths-pyloy
[15] Frontex carries out joint operations with EU Member State authorities, providing support for border management, law enforcement and search and rescue activities in the operational area. Joint Operation Themis covers Frontex’s cooperation with the Italian authorities to this end and was launched in 2018. https://www.frontex.europa.eu/what-we-do/operations/operations/
[16] https://www.ombudsman.europa.eu/en/opening-summary/en/172812
[17] https://www.ombudsman.europa.eu/en/doc/correspondence/en/176666
[18] https://www.ombudsman.europa.eu/en/doc/correspondence/en/174969
[19] https://www.ombudsman.europa.eu/en/doc/correspondence/en/176935
[20] Notice to Air Missions (NOTAM) is a notice filed with an aviation authority to alert aircraft pilots of potential hazards along a flight route or at a location that could affect the flight
[21] Regulation 656/2014, Art 9
[22] As defined in the International Convention on Maritime Search and Rescue, there are three phases of emergency that should be used to describe a boat: uncertainty, alert and distress. There are different criteria that must be met for a boat to be described as being in each phase.
[23] The Maritime SAR Convention defines the three different phases of a maritime emergency. The distress phase – the most serious phase – is defined as “a situation wherein there is reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance”.
[24] The Ombudsman inquiry team consulted the relevant mission and sighting reports and the logbook (including regular and thermal imagery.)
[25] The Ombudsman inquiry team consulted the relevant mission and sighting reports and the logbook (including regular and thermal imagery, as well as video footage from Frontex’s aerial surveillance).
[26] Very high frequency – the radio wave spectrum on which marine radio communications operates. There is a dedicated channel for emergency calls and communication.
[27] In particular, Frontex referred to the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual https://www.imo.org/en/OurWork/Safety/Pages/IAMSARManual.aspx.
[28] Standard international protocols on the issuance of Mayday calls or relays indicate factors such as a vessel that is sinking or taking on water, a ‘man overboard’ situation, an on board fire or explosion or a verified life-threatening injury. There are also lower levels of signals: PAN-PAN and Sécurité. PAN-PAN calls are issued where the situation is urgent but, at the moment issued, there is not an immediate danger to life or to the vessel.
[29] The boat may have been purchased or financed under the Internal Security Fund. However, Frontex is not responsible for that fund or any obligations pertaining to equipment it finances. That would be the competence of the European Commission.
[30] Right to life (Article 2 the Charter); prohibition of inhuman and degrading treatment (Article 4 of the Charter); respect for human dignity (Article 1 of the Charter), among others.
[31] Article 80 of Regulation 2019/1896 and Article 51 Charter
[32] Frontex’s role in SAR operations in enshrined in Regulation 2019/1896. It includes operations launched and carried out in accordance with Regulation 656/2014 and international law, and taking place in situations which may arise during border surveillance operations at sea. Frontex is obliged to provide technical and operational assistance to Member States and non-EU countries in support of SAR operations (Article 10.1.g,h, i of Regulation 2019/1869).
[33] The UN Convention on the Law of the Sea entered into force on 16 November 1994. It was ratified by Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L179, p.1), and is binding on the EU, with its provisions form an integral part of the EU legal order. Furthermore, it has primacy, within that legal order, over acts of EU secondary legislation, which means that those acts must be interpreted, as far as possible, in conformity with the provisions of that convention (Commission v Ireland, C‑459/03, EU:C:2006:345, paragraph 82 https://curia.europa.eu/juris/liste.jsf?num=C-459/03; Intertanko and Others, C‑308/06, EU:C:2008:312, paragraphs 42 and 53 https://curia.europa.eu/juris/liste.jsf?language=en&num=C-308/06; and Bosphorus Queen Shipping, C‑15/17, EU:C:2018:557, paragraph 44 https://curia.europa.eu/juris/liste.jsf?num=C-15/17).
[34] The International Convention on Maritime Search and Rescue, which was concluded in Hamburg on 27 April 1979 (United Nations Treaty Series, Vol.1405, No23489, p.133) (‘the SAR Convention’), entered into force on 22June 1985. The International Convention for the Safety of Life at Sea was concluded on 1 November 1974 and entered into force on 25 May 1980.
The EU is not a party to these two international conventions and they are thus not binding on the EU administration. However, according to EU case-law, account may be taken of such conventions, in connection with the interpretation of provisions of EU secondary legislation which fall within their scope, if all the Member States are parties thereto (Intertanko and Others, C‑308/06, EU:C:2008:312, paragraphs 47 to 52; Manzi and Compagnia Naviera Orchestra, C‑537/11, EU:C:2014:19, paragraph 45; and Bosphorus Queen Shipping, C‑15/17, EU:C:2018:557, paragraph 45).
[35] For instance the International Aeronautical and Maritime Search and Rescue Manual published by the IMO and the International Civil Aviation Organisation (ICAO).
[36] Article 9 of Regulation 656/2014 in conjunction with Article 10.1.j of Regulation 2019/1869.
[37] Article 9(1) of Regulation (EU) No 656/2014
[38] SAR Convention Article 4.2.3
[39] SAR Convention
[40] Decision in OI/4/2021/MHZ: https://www.ombudsman.europa.eu/en/decision/en/151369
[41] Operational Plans and Standard Operating Procedures
[42] Provided for in Regulation 656/2014.
[43] Regulation 2019/1869 Article 36.2.e in conjunction with Article 2. a
[44] Operational Plans and SOPs of the JOs Poseidon and Themis (Confidential)
[45] Article 9.2 b and f Regulation 2014/656, SAR Convention, § 4.2.3
[46] Recommendations to this end have been made by different operating parts of Frontex in documents reviewed by the inquiry team, including in the context of previous SIRs and recommendations endorsed by the Management Board, notably, as set out in the Fundamental Rights Action Plan adopted by the Management Board in 2021 (Annex I, activity 14): https://prd.frontex.europa.eu/document/management-board-decision-61-2021-adopting-the-fundamental-rights-action-plan-for-the-implementation-of-the-fundamental-rights-strategy/.
[47] The inspection included two serious incident reports which documented that Frontex had issued Mayday relays.
[48] The Ombudsman’s inquiry did not address the issuance of the other emergency signals, such as PAN-PAN (see footnote 3). However, the inspection did not reveal any instances where such signals had been issued or considered.
[49] JRCC Piraeus received the information about the situation of the vessel Adriana from MRCC Rome on 13 June 2023 at 08:01 (that is approximately two hours before the initial sighting by the Frontex aircraft) and again, at 13:18 UTC. It also received further updates from the NGO Watch the Med-Alarm Phone at 14:54. On all these occasions, Frontex was in copy.
[50] ”On receiving information that a person is in distress at sea in an area within which a Party provides for the overall co-ordination of search and rescue operations [SAR State], the responsible authorities of that Party shall take urgent steps to provide the most appropriate assistance available.” (Regulation § 2.1.9 SAR Convention)
[51] Mayday calls may result in a situation where numerous vessels in the vicinity approach a vessel in distress without any coordination. As such, issuing a Mayday relay could, in fact, exacerbate the situation.
[52] In accordance with Regulation 656/2014, Article 9.
[53] Art 9 Regulation 656/2014
[54] Article 20.6 of the Commission Implementing Regulation (EU) 2021 /581 on the situational pictures of the European Border Surveillance System (EUROSR): “The competent national coordination centre shall report to the Agency about the termination of a Search and Rescue Operation at the latest within 24 hours after the operation is terminated.” The Ombudsman is not aware of any provision about the timeline for providing to Frontex information about the response to maritime emergencies and SAR activities by the RCC. See Article 12 Regulation 2019/1896 on the obligation to exchange information.
[55] Frontex used this term. The SIR concerning the Crotone shipwreck does not mention the timetable of the FRO’s actions.
[56] However, where the FRO repeats recommendations, the Executive Director should reply to these within a specific time Management Board Decision 43/2022 on actions to be taken as a follow up to the FRO’s recommendations.
[57] Notably the positive replies of the Executive Director to the FRO’s recommendations included in the FRO’s ‘opinions’ on the Multipurpose Aerial Surveillance Services in the context of SAR operations in the Central Mediterranean.
[58] Decision of the Executive Director No R-ED-2021-51 Standard Operating Procedure (SOP)-Serious Incident Reporting of 19/04/2021