The current rules leave the European Border and Coast Guard Agency (Frontex) unable to fulfil its human rights obligations and too reliant on member states when boats carrying migrants are in distress, according to a report published on Wednesday by the European Ombudsman.
The inquiry was by launched by Ombudsman Emily O’Reilly in July 2023 following the Adriana tragedy which resulted in over 600 people drowning off the coast of Greece. The shipwreck was the deadliest one in the Mediterranean Sea in years.
As previously reported, the European Ombudsman opened an own-initiative inquiry to assess how Frontex ensures the respect of fundamental rights in the context of search and rescue missions (SAR) in the maritime operations in the Mediterranean Sea.
What started with a list of questions to Frontex developed into a kind of audit with follow-up questions and further data collection on the spot. After seven months, the Ombudsman confirmed media reports about the lack of cooperation between the Greek authorities and Frontex and their joint failure in rescuing the migrants.
According to documents inspected during the inquiry, Frontex made four separate offers to assist the Greek authorities by providing aerial surveillance of the ship but received no response. The current rules mean that Frontex was not permitted to go to the Adriana’s location at critical periods without the Greek authorities’ permission.
Judging by Frontex’ replies (dated 3 November) to a questionnaire, it supports the national authorities in SAR operations but does not play a major role.
The inquiry showed that Frontex has no internal guidelines on issuing emergency signals (e.g. Mayday calls), and that there is a failure to ensure that Frontex’s fundamental rights monitors are sufficiently involved in decision making on maritime emergencies.
“We must ask ourselves why a boat so obviously in need of help never received that help despite an EU agency, two member states’ authorities, civil society, and private ships knowing of its existence,” the Ombudsman writes.
She also noted that there is no single accountability mechanism at EU level that could independently investigate the role of the Greek authorities, the role of Frontex, and the role of the European Commission, which she says is responsible for ensuring compliance with fundamental rights provisions under the EU treaties.
The Greek authorities have started two investigations of the incident but they are apparently still on-going. Both the Commission and Frontex faced difficulties in communicating with the Greek authorities about updates in their investigations.
Did the European Ombudsman cooperate with the Greek investigators, e.g. the Greek Ombudsman, during its inquiry? “Our inquiry was carried out solely by the European Ombudsman,” its office told The Brussels Times. “For the status of other investigations in Greece, it would be best to contact them directly.”
What should be done
“We have asked the European Parliament, the Council and the European Commission to set up an independent commission of inquiry to assess the reasons for the large number of deaths in the Mediterranean,” the office replied. The office did not say if the European Court of Auditors (ECA) could also carry out a performance audit of SAR.
The Ombudsman warns that it is not unlikely that there will be a repeat of the Adriana tragedy unless there are significant changes to the legal and operational framework for responding to maritime emergencies. “Nearly eight months after the Adriana incident, no changes have been made to prevent such an incident from reoccurring.”
“Cooperating with national authorities when there are concerns about them fulfilling their search and rescue obligations risks making the EU complicit in actions that violate fundamental rights and cost lives,” she writes.
A Commission spokesperson said on Monday that the Commission has taken note of the inquiry report and will respond to it in due time and as soon as possible because of the urgency of the matter. The Ombudsman appears not to have requested a reply from the Commission or set a deadline for the reply.
“We have asked Frontex to inform us by the end of June 2024 of any actions it has taken in relation to our suggestions for improvement,” the Ombudsman’s Office says. The Ombudsman considers that no further inquiries are justified into how Frontex deals with potential maritime emergencies.
In the absence of new rules, does Frontex have the discretion to improve its own procedures to prevent a similar tragedy from happening again? “We have asked Frontex to address a number of shortcomings identified in the inquiry,” the Ombudsman’s Office replied.
“These include adopting internal guidelines on how to react to maritime emergencies (including the Mayday and possibly other emergency signals) and introducing practical arrangements to ensure a Fundamental Rights Monitor is present in the European Surveillance Room when serious maritime incidents are detected by Frontex’s surveillance activities.”
“But as noted in our decision, these suggestions on specific aspects of Frontex's work are not sufficient to fill the large gap left by the absence of proactive search and rescue in the EU.”
A spokesperson of Frontex said the agency is actively reviewing the Ombudsman’s suggestions regarding its functions and areas of expertise, committing to their effective implementation.
Asked to comment on the inquiry, Frontex replied that it “strictly adheres to its mandate, which does not include the coordination of rescue efforts - a responsibility that rests with national rescue coordination centres”. In this, it shares the view of the Commission that search and rescue is a member state competency according to the current legal framework.
Frontex also questions the findings in the inquiry. “In every instance where our assets detect potential distress situations, we promptly alert the relevant authorities, exemplified by our immediate response in the Adriana incident. We relayed crucial information to the Greek authorities and offered further surveillance flights.”
The European Ombudsman have asked the EU co-legislators (the European Parliament and the European Council) to reflect on possible changes to the legislation setting out Frontex’s mandate, which would enable it to play a more comprehensive and proactive search and rescue function.
M. Apelblat
The Brussels Times
