Executive Director European Border and Coast Guard Agency

 

Dear Mr X,

I would like to thank you for Frontex’s reply to my letter of 24 July 2023, opening this inquiry, and for the documents you made available for inspection.

Based on your reply, our inspection of documents and additional information received in the context of our consultation of civil society[1], I have now decided that further inquiry steps are necessary.

First, I would like my inquiry team to meet with relevant Frontex representatives (including representatives of the Fundamental Rights Officer who deal with serious incident reports, as well as representatives of the European monitoring team) to clarify the issues detailed in the annex to this letter. If possible, I would appreciate if the meeting could take place, with your representatives present in person, at your premises in Warsaw on 20-21 November 2023.

Second, I have decided that it is necessary to inspect additional documents in Frontex’s file, on the occasion of the above meeting. This additional inspection should cover: (A) documents related to the two incidents for which you made available serious incident reports (not yet completed); (B) the operational plans for Joint Operations Poseidon and Themis; (C) Frontex operational procedures for Frontex ‘surveillance assets’ including sighting and mission report templates; and (D) finalised serious incident reports concerning search and rescue incidents in 2022 involving shipwrecks or boat abandonment.  

As regards (A) in order to facilitate the identification of documents, I would appreciate if Frontex would send my inquiry team by 6 November 2023 a list of all of the documents it holds relating to the two above-mentioned incidents. This should include logs of communications between Frontex and the relevant national and EU authorities and NGOs, situation reports released by the Maritime Rescue Coordination Centre (MRCC), and mission reports for Frontex assets, together with internal exchanges with the Fundamental Rights Officer (FRO), fundamental rights monitors and the relevant coordinating officer, among other documents. Based on the list, my inquiry team may identify additional documents they wish to inspect. We will communicate to Frontex the full list of documents to be inspected one week after we receive the list of documents described above.

Once the inspection and meeting have taken place, I will send you a copy of the report for your information. All confidential information will be placed in a confidential annex and will not be made public.

Furthermore, I have decided that my inquiry team should gather information from the coordinating officers for Joint Operations Poseidon and Themis. Depending on the information gathered in the context of the inspection, I will decide whether this should be done by means of separate meetings or hearings[2] with the two coordinating officers in question. I will confirm the format and scope of this in the coming weeks.

Should you require any further information or clarifications, including how to arrange for the inspection of documents, your staff can contact Marta Hirsch-Ziembinska, Principal adviser on Charter compliance, who is responsible for the inquiry.

Yours sincerely,

 

Emily O'Reilly
European Ombudsman

Strasbourg, 24/10/2023

 

Annex - Follow up questions for inspection meeting

(1) Frontex’s Fundamental Rights Action Plan (Action 14)[3] states that surveillance assets should remain at the location of detected incidents to document border police/coast guard measures until completed and that a systemic assessment/justification as to whether to remain or not should be based on defined criteria. It also states (Action 13) that the evaluation of the situation and corresponding communication should be sent as soon as possible to the relevant authorities. Mayday relay communications should be dispatched immediately following the sighting of a distress situation.

How did Frontex assess its compliance with these two actions during the search and rescue (SAR) operation concerning the Adriana?

(2) On what basis does Frontex decide when to itself issue Mayday signals to all boats in the vicinity of an emerging incident or emergency? Does Frontex have guidelines or internal protocols governing how and when such signals are issued?

(3) Frontex ultimately decided to deploy one of its aerial surveillance assets to the coordinates of the Adriana incident even though it was not instructed/asked to do so by the Greek authorities. Why did Frontex not deploy or redeploy aerial surveillance assets earlier?

(4) Does Frontex have internal guidelines or criteria to enable those responsible for its surveillance assets to designate vessels as being in distress, uncertainty or alert?

(5) Based on publicly available information, Frontex has said that it offered to make available aerial surveillance assets to the Greek authorities in relation to the Adriana incident but that the Greek authorities did not respond to this offer. Bearing in mind previous findings by the European Anti-Fraud Office (OLAF) and other reports, does Frontex have guidelines or a protocol for its relevant staff members (for example coordinating officers) for engaging with national authorities in the context of incidents where it has reason to believe there is a risk of distress and loss of life but where national authorities do not respond to offers of assistance or where they ask Frontex to deploy assets elsewhere?

6) Does Frontex have any protocols with national authorities whereby they should inform Frontex in real time of the steps undertaken within SAR operations?

(7) Did the Executive Director reply to the concerns raised by the FRO in 2022 related to Multipurpose Aerial Surveillance (MAS) in the Central Mediterranean or was there any follow up to the FRO’s opinion? If so, could this reply or details of the follow up be provided to my inquiry team?

(6) In Frontex’s reply of 8 October 2023, it provided details of operational engagement and capacity building actions. Can further information and documents relating to these activities be provided to my inquiry team?

(7) In Frontex’s reply of 8 October 2023, it stated that the specific activity plan for Joint Operation Poseidon requires maritime assets used in the joint operation to properly document all actions. This is subject to national legislation, including data protection laws. When concluding operational plans, does Frontex clarify the applicable laws of Member States in order to identify whether there are any impediments to the use of cameras on board such vessels? If such impediments are identified, how are these addressed in the plan in order to ensure that the use of vessels is in compliance with fundamental rights?

(8) Could Frontex clarify its response to the question posed in my letter of 24 July 2023 regarding whether it has a protocol on its communication with non-governmental organisations that operate in support of SAR operations, with a view to ensuring coordination and swift reaction to situations of distress at sea? Where Frontex is contacted by such organisations and/or is provided with information concerning a maritime incident, how does Frontex handle such communication and/or information? Does Frontex have internal guidelines for this?

(9) In its reply of 8 October 2023, Frontex states that fundamental rights monitors are assigned to each operational activity and that they provide advice on fundamental rights aspects to the coordinating officer. At what stage is this advice given? Could Frontex provide my inquiry team with the advice given in the operational activities in question in this inquiry?

(10) In circumstances where Frontex identifies a vessel at sea in the SAR area of a Member State, does Frontex have guidelines or a protocol on what specific information and/or assessment of the vessel should be provided to the MRCC and when? Does this information and/or assessment vary depending on the nature of the aerial asset used by Frontex?

 

[1] Published at https://www.ombudsman.europa.eu/en/case/en/63451

[2] In accordance with Article 7 of the Statute of the European Ombudsman,

[3] Frontex Management Board Decision 61/2021 adopting the Fundamental Rights Action Plan for the

implementation of the Fundamental Rights Strategy: adopting the Fundamental Rights Action Plan for the

implementation of the Fundamental Rights Strategy  https://www.frontex.europa.eu/assets/Key_Documents/MB_Decision/2021/MB_Decision_61_2021_adopting_the_Fundamental_Rights_Action_Plan_for_the_implementation_of_the_FRS.pdf