Mr Hans Leijtens Executive Director European Border and Coast Guard Agency

 

Dear Mr Leijtens,

I have closely followed the detailed reports that have been produced and the discussions that have taken place following the tragic drownings off the coast of Greece on 14 June 2023. While I understand that investigations are taking place at the national level, it is clear that Frontex had an important role in the search and rescue mission from a coordination perspective. As such, I believe that there is scope for greater clarity in relation to Frontex’s role in such operations. To this end, I have decided to launch an own-initiative inquiry.

My Office can conduct inquiries on its own initiative for which I find grounds, except where the alleged facts are or have been the subject of legal proceedings. To the extent that any of the matters covered below may be subject to legal proceedings, I trust that Frontex will reply accordingly.

Frontex is coordinating three joint maritime operations in the Mediterranean.[1] It is also providing technical and operational assistance to Member States and non-EU countries in support of search and rescue (SAR) operations (in accordance with Regulation 2019/1896[2] and Regulation 2014/656[3]). Vessels deployed by Frontex to an area in its joint maritime operations should always be ready to provide national authorities with support in SAR operations. Given that the mandate to conduct SAR operations remains a competence of the Member States alone, it is not clear what this means in practice for Frontex. On the other hand, Frontex’s own vessels deployed at sea must provide search and rescue assistance if the situation so requires.

I would be grateful if Frontex could reply, by the end of September 2023, to the following questions:

A) Could Frontex make the necessary arrangements for my inquiry team to inspect Frontex’s serious incident report concerning the Adriana shipwreck of 14 June 2023? Could Frontex make it possible for my inquiry team to inspect its serious incident reports for other recent incidents involving considerable loss of life of migrants due to shipwrecks or situations of distress at sea (including in the central Mediterranean, for example, the incident on 26 February 2023 off the coast of southern Italy and the incident on 7 January 2023 involving the sinking of a boat near Louata, in the Sfax region)? Information or documents that Frontex considers to be confidential will not be disclosed to any person without the prior agreement of Frontex [4].

B) How does Frontex ensure that, during joint maritime operations, it complies with its fundamental rights obligations under EU and international law, including the duty to rescue those in distress at sea? Does Frontex proactively engage in SAR activities, searching for persons in distress, retrieving survivors, and delivering them to a ‘place of safety’?

C) According to Regulation 2014/656, for each sea operation, an international coordination centre is used as a channel for communication between national and Frontex staff, including the coordinating officer appointed by Frontex’s Executive Director. What is the exact role of Frontex and its coordinating officer in SAR operations, given that it is the national rescue centre that decides on such operations? Is Frontex contacted proactively by the national authorities as soon as SAR operations are being prepared and launched? Does Frontex have substantial input into the design or organisational implementation of these operations?

D) More specifically, on the role of the coordinating officers, how do fundamental rights monitors assist and advise coordinating officers? Have there been reports[5] by the coordinating officer to the Executive Director, detailing instances where instructions issued to staff involved in SAR operations by the host Member States are not in compliance with fundamental rights, with suggestions to suspend, terminate or not launch the activities in question[6]? If yes, could Frontex share such reports with my inquiry team, under the conditions described in point A above?

E) In accordance with Regulations 2019/1896 and 2014/656, Frontex is obliged to provide technical and operational assistance to Member States and non-EU countries in support of SAR operations, in compliance with the Charter of Fundamental Rights. In its operational plans for joint operations signed with the Member States, there should always be a SAR component. Is such a component consistently included, and could Frontex provide examples detailing what this component is comprised of?

F) Does Frontex specify in writing how cameras on boats taking part in Frontex joint operations - and/or part of the Frontex technical equipment pool- should be used to monitor compliance with fundamental rights obligations?

G) Does Frontex have/prepare reports or other assessment documents concerning fundamental rights compliance during SAR activities in the context of joint maritime operations, in particular concerning: (i) delayed or lack of response to individuals or boats in distress at sea in a search and rescue region covered by a joint operation; (ii) delayed or refused disembarkation at EU ports of people rescued by the vessels of non-governmental organisations (NGOs); (iii) situations where captains of NGO vessels are required to hand over rescued individuals to the coast guards of non-EU countries? If so, how is the Fundamental Rights Officer involved in preparing such reports? Could Frontex share with my inquiry team examples of such reports under (i), (ii) and (iii), under the conditions described in point A above?

H) Does Frontex have 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?

I) Frontex’s multiannual programming 2023-2025[7] states that “protecting and saving lives at external borders is a key priority; the capacity and operational readiness to support MS/SACs in conducting search and rescue operations [should] be a vital part of all the surveillance operations at the external sea borders.”[8] Could Frontex clarify the targets for its SAR activities, as indicated in multiannual programming in relation to the key activity 2.3.2 and 2.3.3?[9]

Should you require any further information or clarifications, including how to arrange for the inspection of documents, please do not hesitate to contact Marta Hirsch-Ziembinska (+33 388 17 27 46; marta.hirsch-ziembinska@ombudsman.europa.eu), Principal adviser on Charter compliance, who is responsible for the inquiry.

 

Yours sincerely,

Emily O'Reilly

European Ombudsman

 

[1] Operation Themis in the central Mediterranean, Operation Poseidon in the eastern Mediterranean, and Operation Indalo-Minerva, which covers the western Mediterranean route between Spain and Morocco.

[2] Regulation 2019/1896 on the European Border and Coast Guard: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32019R1896.

[3] Regulation 656/2014 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.

[4] Please clearly mark such material ‘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 any of the material to be inspected contains EUCI, please contact us beforehand so that the appropriate inspection arrangements can be made.

[5] In accordance with Article 44 of Regulation 2019/1896.

[6] In accordance with Article 46 of Regulation 2019/1896.

[7] Management Board Decision 70/2022 adopting the Single Programming Document 2023-2025 including the Multiannual Programming 2023-2025, the Work Programme 2023 and the Budget 2023 (https://prd.frontex.europa.eu/?form-fields%5Bsearch%5D).

[8] Management Board Decision 70/2022 pages 20 and 33.

[9] Under the Key Activity 2.3.3 for the Strategic Objective 2 in the Annual Work Programme for 2023 included in the Multiannual Programming 2023-25 (page 49) Frontex indicates as Expected results, main outputs/actions, key deliverables: to implement SAR workshops in different sea regions around Europe.