** Check against delivery **

Brussels, 26 November 2013

Chairperson, honourable Members, thank you for this opportunity which is my first appearance before this parliament as European Ombudsman, to address you on my first special report.

I would firstly like to thank the Members of this house for entrusting me earlier this year with this important position. As I understand the importance of the Petitions Committee for citizens, I certainly look forward to strengthening cooperation between my Office and the Committee.

I am also particularly pleased that members of the Irish petitions committee are present today. I feel very much at home!

Yet despite the pleasure of addressing you in the context of a Special Report, this is not something I wish to do very often.  An institution’s failure to implement an Ombudsman’s recommendation should be a rare event and the number of special reports that my two predecessors presented to Parliament – approximately one per year - is evidence of the co-operative approach adopted by the EU Institutions in the overwhelming majority of cases.

As a political body, the European Parliament is of course sovereign in its dealings with the Ombudsman’s special reports, I look for support for my position, and after that you freely decide what to do.

The issue I bring before you now requires the special attention of Parliament. Frontex - the EU body charged with assisting member states in managing and controlling their external borders - has declined to accept my recommendation to create an internal complaint handling system.

I do not claim that such a mechanism - if implemented - would come close to solving the multiple complex migration issues at the heart of this matter, but it would, at the very least, be a step towards upholding the human rights standards that we are bound by in Europe and specifically through the Charter of Fundamental Rights which Frontex, in line with every other EU institution and agency, is subject to.

I know that the issue of migration is one that greatly troubles Parliament. I have noted that just five seconds into the video ad launched by you in anticipation of the 2014 elections, is an image of young African men jumping from the deck of a small boat into a dark sea at dead of night,  the image rolled out precisely to point to the humanitarian challenge that confronts all of us who live safely within the borders of the European Union.

Last month 360 women, children and men drowned off our European coast, near the tiny island of Lampedusa. Many of us associate the name Lampedusa with the wonderful novel The Leopard by Giuseppe De Lampedusa which tells the story of the struggle of the Sicilian aristocracy to cope with social change in the 19th century. Lampedusa now points to the EU’s own 21st century struggle to cope with the social and economic pressures that compel so many souls to risk their own lives and all too often the lives of their children to seek the promise of Europe.

At least 20,000 people have died in the last 20 years in the attempt to reach Europe’s coast. We cannot possibly know how many more have perished in the seas around our countries unremarked and unremembered but by their families in their home place. President Schulz recently told the European Council that Lampedusa must be a turning point in European migration policy and that is the context of my special report to you today.

Frontex has not accepted my recommendation following an investigation of its compliance with European human rights standards, in particular, with the Charter of Fundamental Rights. I should say at the outset nonetheless that I received excellent co-operation from Frontex and I would hope that the gap between us on this issue is not so great that it cannot be bridged with the encouragement and active assistance of Parliament, if that is Parliament’s choice.

Immigration, and in particular the challenges presented by illegal entry, poses major legal and humanitarian challenges for the EU. There are, almost necessarily, tensions between the very legitimate interest in controlling immigration, and the humanitarian requirement to offer a safe haven pending the legal processing of asylum claims. Frontex, working with the individual Member States, must seek to achieve what is a difficult balance between these conflicting demands.

Through a 2011 EU Regulation, Frontex is now explicitly required to act in accordance with the Charter in the course of its work.  In addition Frontex is required to make administrative arrangements to promote compliance, as well as to monitor compliance, with the Charter. These arrangements included the drawing up of Codes of Conduct for Frontex operations, the appointment of a Fundamental Rights Officer within Frontex and the establishment of a Consultative Forum on Fundamental Rights. These are all welcome steps forward.

In March 2012 the then European Ombudsman, Professor Diamandouros, began an own initiative inquiry into the progress being made by Frontex in meeting its obligations under the Charter and the 2011 Regulation.

We found that, in general, Frontex was making reasonable progress in addressing its obligations under the Charter and the Regulation. However, we found that the organisation had no mechanism for dealing with alleged individual incidents of breaches of fundamental rights. I see the lack of an internal complaints mechanism as a significant gap in Frontex's arrangements.

The lack of such a mechanism means that Frontex cannot be fully aware of concerns or complaints about the manner in which it operates. It also means that people with complaints do not have the opportunity to have them dealt with directly by Frontex. The net result is that possible violations of the human rights of migrants go undetected, unreported and unresolved.

We recommended to Frontex that it should set up a mechanism to deal directly with complaints from people claiming to have had their fundamental rights breached by Frontex. Regrettably, Frontex decided not to accept this recommendation.

Frontex say that individual incidents, which become the subject of complaint, are ultimately the responsibility of the particular Member State on whose territory the incident occurred. The view that an EU agency has no direct accountability in this regard has been described by the Council of Europe as “a dangerous mindset” and one, it says,  that contributes to a blame game between the agency and the member states .

I do not accept that Frontex does not carry responsibility for the actions of staff operating under the Frontex banner. That responsibility may sometimes be shared with the individual Member State, but it is not tenable that Frontex has no responsibility.

I accept the Frontex position that few of its own staff members actually participate in operational activities in the field. I also accept however that the division of responsibilities is not always clear cut. The fact remains that there are numerous officers made available by the Member States at the borders who wear armbands inscribed  with the word “Frontex" and which carry the image of the flag of the European Union.

Those affected by a Frontex operation naturally believe that an officer wearing such an armband is acting under the direction of Frontex. These people are typically under stress and vulnerable -consider the images of near unimaginable distress that we have witnessed in recent weeks - and it cannot possibly be expected that desperate, terrified individuals could possibly investigate what is a confused and complex allocation of responsibility. It would seem only logical for these people to see Frontex as the first resort for complaints about violations of their fundamental rights.

There is an important principle here, and that is that any person working in an official capacity who wears an EU flag on their uniform or an armband in this case, must be, at least jointly with the member states, accountable to the European institutions, including the European Parliament.

Against the backdrop of the Lampedusa tragedy and other recent humanitarian catastrophes at EU borders, it is vital that Frontex deals directly with complaints from migrants and others affected by its actions.

My view that Frontex should develop a complaint handling system is also shared by the Council of Europe which in April 2013 adopted a resolution calling on the EU to ensure that its Member States and Frontex comply with their human rights obligations including the creation of a complaints system.

So what would such a complaint handling system look like? One example is the European Investment Bank (EIB), which agreed, with the encouragement of Parliament, to put in place a front-line complaints mechanism for persons involved in or affected by EIB-funded projects.

This arrangement is working well and has enhanced the Bank’s reputation among the international development community. It would be both efficient and in the interests of the reputation of the EU in the field of fundamental rights for Frontex also to agree to put in place a first-line complaints mechanism.

I understand that the head of the EIB’s complaints mechanism, Mr Felismino ALCARPE is here today and available to answer any questions you may have on that complaints mechanism.

To conclude, today in my first special report I am seeking your support to use the powers entrusted in this Parliament to require Frontex to establish its own complaints mechanism to make sure that those who claim to have had their fundamental rights violated by the action or non-action of the agency may be given the dignity of having those allegations fully examined and resolved.

Thank you for your attention.