Executive Director ad interim European Border and Coast Guard Agency

Dear Ms X,

On 4 August 2022, I received a complaint against Frontex, submitted by six civil society organisations (Privacy International; Access Now; the Border Violence Monitoring Network; Homo Digitalis; International Federation for Human Rights, and Sea-Watch).

I have decided to open an inquiry into the complainants’ concern that Frontex does not carry out prior human rights risk and impact assessments (HRIA) in relation to its technical assistance engagement with non-EU countries, such as capacity building and training in surveillance techniques, the transfer of surveillance equipment as well as any other related support. One of the complainants wrote to Frontex about this on 9 March 2022 but it seems that Frontex did not reply.

I would appreciate it if, by the end of December 2022, Frontex could reply to the following questions:

1. Does Frontex carry out any due diligence assessments or HRIA before it decides to transfer surveillance capabilities to non-EU countries, including capacity building/training in surveillance techniques, the transfer of surveillance equipment and any related support?

2. Is there a separate HRIA for support Frontex provides to non-EU countries through ‘risk analysis cells’?  

3. Frontex has been supporting the Libyan General Administration for Coastal Security (GACS), for example by providing training on maritime law enforcement operations. The documents concerning one training exercise that were attached to the complaint do not include an assessment of human rights risks. Did such an assessment take place?

4. The Fundamental Rights Officer (FRO) is in charge of issuing opinions on Frontex’s assistance projects with non-EU countries, by identifying fundamental rights challenges, possible fundamental rights violations or the risks thereof. 

Could Frontex please share with my Office any such opinions in relation to Frontex’s training programmes for GACS, Frontex’s projects in cooperation with EUCAP Sahel Niger, and the assistance project in the Western Balkans for the Service of Foreigners’ Affairs of Bosnia and Herzegovina?

5. The complainants refer in their complaint to Frontex’s aerial surveillance in the Central Mediterranean Sea in cooperation with the Libyan Coast Guard. Did the FRO issue a fundamental rights assessment (highlighting risks and indicating fundamental rights safeguards) in relation to this activity?

6. In his 2021 annual report, the FRO mentions five serious incident reports (SIR) related to the aerial surveillance in the Central Mediterranean Sea. Could Frontex please share with my Office the SIRs which are in the meantime closed by the FRO?

Please note that I am likely to send your reply and related enclosures to the complainants for comments^[1]. We may also decide to publish your reply.

If, in the course of this inquiry, Frontex becomes involved in court proceedings concerning the same subject matter as this complaint, I would ask you to let us know.

Should you require any further information or clarifications, please do not hesitate to contact Marta Hirsch-Ziembinska, Principal adviser on Charter compliance, who is responsible for the inquiry.

Yours sincerely,

 

Emily O'Reilly
European Ombudsman

Strasbourg, 05/10/2022

 

[1] If you wish to submit documents or information that you consider to be confidential, and which should not be disclosed to the complainant, please mark them ‘Confidential’. Encrypted emails can be sent to our dedicated mailbox. Information and documents of this kind will be deleted from the European Ombudsman’s files shortly after the inquiry has ended. If the material requested includes classified information, please first take contact with the person indicated as responsible for the inquiry.