30
Juli
2024

Guidance on investigating alleged ill-treatment at borders

Fundamental rights violations on the EU’s land and sea borders often go unreported. Investigations into these violations need to be more effective. This report gathers examples of alleged rights violations of migrants and refugees between 2020 and 2023. It sets out 10 steps to promote prompt and effective national investigations into incidents of ill-treatment at borders.

Under the ECHR, whenever there is a credible assertion of a violation of Article 2 (the right to life) or Article 3 (the prohibition of torture and other forms of ill-treatment), national authorities must carry out an effective official investigation [64] ECtHR, S. M. v Croatia, No 60561/14, 25 June 2020, paragraph 324; Mocanu and Others v Romania [GC], Nos 10865/09 and 2 others, 17 September 2014, paragraphs 315–326. See also Department for the Execution of ECtHR Judgments, Thematic Factsheet – Effective investigations into death or ill-treatment caused by security forces, Strasbourg, 2020.
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To be effective, an investigation must be adequate, prompt, expeditious and capable of leading to the identification and punishment of those responsible. This requires that the investigation is thorough and makes serious attempts to find out what happened. It requires the people responsible for the investigation or carrying it out to be independent in practice. It also requires victims to be able to effectively participate in the investigation and for the next of kin of the victim to be involved to the extent necessary to safeguard their legitimate interests [65] ECtHR, Mocanu and Others v Romania [GC], Nos 10865/09 and 2 others, 17 September 2014 ,paragraph 320; Ramsahai and Others v the Netherlands [GC], No 52391/99, 15 May 2007, paragraph 324; Armani da Silva v the United Kingdom [GC], No 5878/08, 30 March 2016, paragraphs 229-239; Mustafa Tunç and Fecire Tunç v Turkey [GC], No 24014/05, 14 April 2015, paragraph 175; Halat v Turkey, No 23607/08, 8 November 2011, paragraph 51; Najafli v Azerbaijan, No 2594/07, 2 October 2012, paragraphs 52–54. See also CPT, 14th General Report on the CPT’s Activities (2003–2004), Strasbourg, 2004, paragraph 36; CPT, 30th General Report of the CPT – 1 January–31 December 2020, Strasbourg, 2021, para graph21; CPT, 32nd General Report of the CPT – 1 January–31 December 2022, Strasbourg, 2023, paragraphs 98–104.
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In addition, investigation must not depend on a complaint from the victim or next of kin. National authorities should act on their own initiative where reasonable allegations of ill-treatment arise [66] ECtHR, Al-Skeni and Others v the United Kingdom [GC], No 55721/07, 7 July 2011, paragraph 165.
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Similarly, the CPT stressed that all investigations must strictly comply with the criteria of independence, thoroughness, transparency, promptness and victim participation. Prosecutorial authorities must exercise close and effective supervision of the operational conduct of an investigation into possible ill-treatment by public officials. Investigations must be capable of leading to a determination of whether or not force or other methods used were justified under the circumstances. Once ill-treatment has been established and proven, disciplinary and criminal sanctions should be commensurate to the gravity of the case [67] See CPT, Combating Impunity, CPT/Inf (2004) 28-part, extract from the 14th general report of the CPT, Council of Europe, Strasbourg, 2004, paragraphs 25–42.
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In past research, FRA has tried to assess the effectiveness of investigations of incidents of police arbitrariness. In its 2024 report on addressing racism in policing, it found, however, that few data on investigations are available [68] FRA, Addressing Racism in Policing, Publications Office of the European Union, Luxembourg, 2024, pp. 33–36.
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This chapter reviews the obstacles facing victims in terms of participating in the proceedings, difficulties in producing evidence and due diligence during investigations. The starting point of the analysis is the relevant ECtHR case-law listed in Chapter 3.

Under the ECHR, victims must be able to effectively participate in the investigation. In addition, the next of kin of the victim must be involved to the extent necessary to safeguard their legitimate interests [69] ECtHR, Ramsahai and Others v the Netherlands [GC], No 52391/99, 15 May 2007, paragraph 347; Najafli v Azerbaijan, No 2594/07, 2 October 2012, paragraph 48; Mustafa Tunç and Fecire Tunç v Turkey [GC], No 24014/05, 14 April 2015, paragraph 179; Armani da Silva v the United Kingdom [GC], No 5878/08, 30 March 2016, paragraph 235.
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There are practical challenges that make victims’ adequate participation in the investigation difficult.

First, even if the authorities have a duty to investigate, irrespective of the victim’s complaint [70] ECtHR, Lakatoš and Others v Serbia, No 3363/08, 7 January 2014, paragraphs 79–80.
, lodging a complaint facilitates the start of investigations. To file complaints before the judicial, disciplinary or human rights bodies, individuals need clear information on the available procedures. This requires support from professionals. The ENNHRI notes that a common reason for migrants not reporting human rights violations is a lack of awareness or understanding of the process to submit complaints and access justice [71] ENNHRI, Strengthening Human Rights Accountability at Borders, Saint-Gilles, Belgium, 2022.
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International or civil-society organisations – which receive accounts of ill-treatment or of other rights violations from people who cross or attempt to cross the border in an irregular manner – play an important role. They refer victims to specialised staff who can provide information on available legal avenues, procedures and other relevant aspects. Recital 63 of the victims’ rights directive encourages Member States to put in place mechanisms to enable third parties to report on the victim’s behalf. [72] Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ L 315, 14.11.2012, p. 57).
However, the capacity of such third parties may be limited, particularly in border areas.

A second practical barrier is that victims are often not in the territory of the Member State where the alleged violation took place. Victims might have absconded from reception facilities, moved on or been summarily returned to where they came from. This affects their possibility to participate meaningfully in the procedure.

Victims’ and witnesses’ statements must respect formal requirements to be used as evidence in the trial. In the absence of functioning judicial cooperation mechanisms, obtaining the necessary signatures and testimonies from the victims staying in a third country is complicated. A legal professional in Cyprus underlined, for example, that victims who were summarily returned to Lebanon may not be available because they were refouled to Syria or their whereabouts are unknown.

In some Member States, victims can appeal the prosecutor’s decision not to initiate pretrial proceedings. However, for this they need to be in the country or give written consent, as a civil-society representative in Bulgaria noted [73] Consultation with a representative of a Bulgarian civil-society organisation conducted by phone in September 2023.
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The victim’s absence affects the possibility of being heard during the investigations. Investigative authorities may need to make an additional effort to seek statements from victims who are believed to be staying somewhere in a third country. The difficulties in locating and collecting testimonies from the victims might lead to the discontinuation of the cases. For example, the Hungarian prosecutor did not hear a victim who was ill-treated while being escorted back to Serbia through the border fence in August 2016. This was because the victim had left Hungary and was not available for the proceedings [74] ECtHR, Shahzad v Hungary, No 37967/18, 5 October 2023, paragraph 51.
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In other situations, efforts to collect testimonies from the victims may significantly prolong the length of the procedures. A legal aid provider in Bulgaria referred to a case that was pending before the prosecutorial authorities for 14 months [75] Phone consultation, September 2023.
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Obtaining larger numbers of and more timely testimonies is crucial. One option to do this could be to use lawyers and international organisations with a protection mandate (e.g. the Office of the United Nations High Commissioner for Refugees (UNHCR)) to contact victims and witnesses whose whereabouts are not known to the investigative authorities [76] See in this context also ECtHR, Shahzad v Hungary, No 37967/18, 5 October 2023, paragraph 61.
. The collaboration of legal professionals or civil-society organisations may also help. For example, a civil-society organisation in Croatia described how lawyers in Croatia, Serbia and Türkiye worked together to collect the necessary documentation in the case of a Kurdish politician who was removed from Croatia to Serbia.

Third, without the assistance of a lawyer, victims will not be able to participate effectively in the proceedings. In many cases, the victims do not speak the language used in the investigation’s proceedings. Investigations into allegations of ill-treatment at borders are complex, and evidence is often difficult to produce. The support of a lawyer is necessary to identify relevant pieces of evidence (e.g. technical expertise, ballistic reports, GPS locations and video footage) that the investigative authority should obtain and analyse. Lawyers may also help victims to get medical reports of injuries or other important documents to submit to the investigative authority.

FRA has repeatedly highlighted the difficulties that civil-society actors and lawyers face who support migrants and refugees at or near the border. These include pressure, harassment and sometimes criminalisation [77] FRA, Protecting Civil Society – Update 2023, Publications Office of the European Union, Luxembourg, 2023, Section 3.2; FRA, Europe’s Civil Society – Still under pressure – 2022 update, July 2022, Publications Office of the European Union, Luxembourg, Sections 2.3.1 and 2.4.2; FRA, Submission by the European Union Agency for Fundamental Rights to the European Commission in the context of the preparation of the annual Rule of Law Report 2023, Vienna, 2023, Section 3.2.3.
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In a case leading to the death of a young girl in Croatia, initial doubts about the validity of the power of attorney meant that the victim’s lawyer could not attend the applicants’ hearing. The lawyer also did not receive information about the proceedings and could not meet with her clients for over a week [78] ECtHR, M. H. and Others v Croatia, Nos 15670/18 and 43115/18, 4 April 2022, paragraphs 160–163.
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There may also be formal restrictions to representing victims in proceedings. In Cyprus, for example, only those lawyers who have a legal office or work for a law company can register with the National Bar Association, which is a precondition to appear in court [79]
 Cyprus, The law on lawyers, Chapter 2 (Ο περί Δικηγόρων Νόμος ΚΕΦ.2), Article 11.
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A fourth issue relates to costs. To give their testimony, victims may be required to travel to border locations where the competent judicial authorities are located. They may need to undergo medical examinations and present, and in some cases translate, medical reports to support the investigations.

Many alleged incidents of ill-treatment occur at night in remote locations, such as border forests or at sea. It is challenging to prove who caused the injuries, namely law enforcement officers, other migrants or actors in the neighbouring third country. When it is not disputed that the harm was caused during the migrant’s arrest or apprehension, it may be difficult to conclude that the force used was not necessary or proportionate.

Often, available evidence is limited to the victims’ statements about the ill-treatment (which may be complemented by testimonies of other migrants) and the statements of the law enforcement officers involved. The presence of other witnesses is rare, as violations take place in locations where the public, civil society and international organisations have limited or no access.

Other pieces of evidence, such as medical reports, ballistic reports (when firearms are used), video footage from surveillance infrastructure and relevant GPS locations, are – for many incidents – not available.

Disciplinary or judicial investigations are often initiated following reports about fundamental rights violations collected from migrants, who either suffered or witnessed ill-treatment.

Promising practice: mechanism to record testimonies about rights violations at borders in Greece

In Greece, the National Commission for Human Rights set up a mechanism to record incidents of summary returns. Between April 2020 and October 2022, it recorded 50 incidents involving at least 2 157 people who wished to seek asylum in Greece but were apprehended or intercepted and then summarily returned to Türkiye. Such incidents were often accompanied by ill-treatment, deprivation or destruction of identity documents and other fundamental rights violations. The Greek National Commission for Human Rights forwarded its report for 2022 to the Ombudsman, the National Transparency Authority, local prosecutors and the prosecutor of the Supreme Court.

Source: Greek National Commission for Human Rights, Recording Mechanism of Incidents of Informal Forced Returns – Annual report 2022, Athens, 2023.

Victims’ and migrant witnesses’ testimonies may trigger the start of pretrial investigations. However, a review of the relevant ECtHR case-law shows deficiencies in the way they are heard. Examples include:

  • not hearing victims or witnesses who were not readily available, without efforts to locate them, or hearing them late, resulting in them not being available to testify any more [80] ECtHR, Alhowais v Hungary, No 59435/17, 2 February 2023, paragraphs 46 and 90; Shahzad v Hungary, No 37967/18, 5 October 2023, paragraph 61.
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  • hearing victims using an interpreter who did not speak the language and a failure to address incorrect statements in the file, when the interpretation gaps became known [81] ECtHR, Safi and Others v Greece, No 5418/15, 7 July 2022, paragraph 123; see also M. H. v Croatia, Nos 15670/18 and 43115/18, paragraph 153.
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  • using testimonies given in the immigration proceedings or during initial ex officio investigation of incidents, without hearing the victims again in the criminal procedure [82] ECtHR, Alhowais v Hungary, No 59435/17, 2 February 2023, paragraph 90; Safi and Others v Greece, No 5418/15, 7 July 2022, paragraph 124.
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  • a failure to hear victims and/or witnesses again to clarify discrepancies in their statements [83] ECtHR, M. H. v Croatia, Nos 15670/18 and 43115/18, paragraphs 152–153.
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  • short and very similar records of migrants’ statements [84] ECtHR, Alkhatib and Others v Greece, No 3566/16, 16 January 2024.
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National statutory human rights bodies corroborate this finding. For example, in relation to disciplinary investigations conducted by the administration, the Greek Ombudsman noted the failure to take testimonies from alleged victims and important witnesses. This reduces the effectiveness and reliability of the internal investigations [85] Greek Ombudsman, 2021 Special Report – National Mechanism for the Investigation of Arbitrary Incidents (EMIDIPA), Athens, 2022.
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The Croatian Ombudswoman noted that, in an internal investigation, the Ministry of Interior had not questioned the complainant for more than a year. When an interview with her was finally planned, the victim was not available any more [86] Croatia, Ombudswoman, Ombudswoman’s Report – Analysis of the state of human rights and equality in Croatia – 2022, pp. 215–216.
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Legal professionals in Greece and Croatia also highlighted gaps in interpretation. For example, in Greece, 256 criminal trials against people accused of smuggling before the Criminal Courts of Athens between 2020 and 2022 were reviewed. This showed that interpretation was provided in only 33.3 % of trials against foreigners [87] See RSA (Refugee Support Aegean), Rule of Law Backsliding Continues in Greece – Joint civil-society submission to the European Commission on the 2023 Rule of Law Report – January 2023, Chios, Greece, 2023, paragraph 22.
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The testimonies of police officers, border guards or coastguards who were involved in an incident under investigation form a central part of investigation files. In many cases, such testimonies differ significantly from those of the alleged victims or those of witnesses. This often results, broadly speaking, in two conflicting versions of events: a version as recalled by the migrants and a version presented by law enforcement.

Law enforcement officers would normally be able to provide a detailed account on several aspects of an incident. This includes the exact timing and location of the incident, the number and profile of officers deployed and any equipment and coercive measures used. An internal arrest or similar report may corroborate key aspects of the incident.

Lawyers in France and Latvia highlighted the difficulties in contradicting the facts as presented by law enforcement officers, even when there is video material of the alleged incident [88] Information provided by four French lawyers consulted in September 2023 and by an attorney of law in Latvia in October 2023.
. The Latvian General Prosecutor’s Office clarified that video footage of the circumstances of the offence does constitute essential evidence. However, its degree of reliability is assessed by evaluating all the evidence obtained during the criminal proceedings taken as a whole.

A review of the relevant ECtHR case-law shows deficiencies in the way law enforcement officers were heard. Examples include:

  • not hearing all personnel involved in the operation [89] ECtHR, Alhowais v Hungary, No 59435/17, 2 February 2023, paragraphs 45, 48 and 91 (two police officers, a dog handler and four or five soldiers were not heard in this case).
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  • not addressing discrepancies in police officers’ statements [90] ECtHR, M. H. v Croatia, Nos 15670/18 and 43115/18, paragraphs 152–153; Shahzad v Hungary, No 37967/18, 5 October 2023, paragraph 62.
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  • asking police officers who were not present questions about the incident [91] ECtHR, Alhowais v Hungary, No 59435/17, 2 February 2023, paragraph 48 (according to the applicant); Shahzad v Hungary, No 37967/18, 5 October 2023, paragraph 63.
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Border management personnel are usually reachable for investigative authorities. This should facilitate the collection of comprehensive evidence from them.

Under Article 13 of the Schengen Borders Code [92] Regulation (EU) 2024/1717 of the European Parliament and of the Council of 13 June 2024 amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders (OJ L 2024/1717, 20.6.2024).
, Member States must control their borders to prevent unlawful crossings. Border surveillance involves not only patrolling but also the use of stationary and mobile infrastructure, such as video cameras, to detect unauthorised border crossings.

The potential evidentiary value of video footage from border surveillance activities during investigations of allegations of ill-treatment at borders remains underutilised. In her inquiry into the actions of Frontex in the Adriana shipwreck, the European Ombudsman concluded that any assessment of the facts of this tragedy was severely compromised by the absence of video or other recording of what took place before and after the boat’s capsizing [93] European Ombudsman, Conclusions of the European Ombudsman on EU search and rescue following her inquiry into how the European Border and Coast Guard Agency (Frontex) complies with its fundamental rights obligations in the context of its maritime surveillance activities, in particular the Adriana shipwreck, case OI/3/2023/MHZ, 26 February 2024.
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Promising practice: drawing attention to the evidentiary value of border surveillance footage for investigations in Croatia

An inquiry took place into the death of a young girl hit by a train after Croatian police allegedly intercepted the girl and ordered her to walk back to Serbia via the tracks. In her inquiry, the Croatian Ombudswoman highlighted the evidentiary value of the footage of video cameras installed along the border with Serbia for investigating the incident. She also suggested that the signal from mobile phones and the police car GPS data be inspected to establish if and when the police and the victim had contact (an issues that was disputed).

Neither of the two pieces of evidence became available in the concrete case (a fact that the ECtHR reprimanded). However, since then, the evidentiary value of border surveillance footage for investigations has generally been recognised. In 2023, the CPT went a step further and suggested that all border control activities should be videorecorded. This would be both a safeguard against ill-treatment and a protective measure against false accusations.

Source: Croatia, Ombudswoman, Annual report of the Ombudswoman of Croatia for 2018, 2019, p. 297. See also ECtHR, M. H. v Croatia, Nos 15670/18 and 43115/18, paragraph 12; CPT, The prevention of ill-treatment of foreign nationals deprived of their liberty in the context of forced removals at borders, CPT/Inf (2023) 7, extract from the 32nd general report of the CPT (1 January–31 December 2022), Council of Europe, Strasbourg, 2023, paragraph 26.

Border surveillance records, if available, may provide physical evidence of the sequence of events. For example, the Hungarian police videorecord the return of foreign nationals through the border fence to protect themselves against false allegations of illtreatment [94] ECtHR, Shahzad v Hungary, No 37967/18, 5 October 2023, paragraphs 23 and 58 (although the recording stopped while the operation was still ongoing).
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Frontex agreed on an implementation plan with Greece to prevent rights violations during maritime border surveillance. In that plan, the Hellenic Coast Guard committed to purchasing and using portable cameras for vessels deployed in the context of Frontex joint operations. Once used, they may provide visual evidence of a disputed incident [95] Information provided by the Frontex Fundamental Rights Office to FRA in April 2024.
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In some cases, the alleged offences are also accompanied by theft or confiscation of mobile phones by border guards. In such cases, victims may not be able to record the incidents or use GPS to identify the exact location. If they did videorecord the incident, the footage may be lost [96] As an illustration, see the example relating to Malta in OHCHR, Lethal disregard – Search and rescue and the protection of migrants in the central Mediterranean Sea, Geneva, 2021, p. 16; see also Greek National Commission for Human Rights, Recording Mechanism of Incidents of Informal Forced Returns – Annual report 2022, Athens, 2023, p. 50.
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More generally, when footage is stored from video or infrared cameras installed along the border to detect unauthorised crossings, recordings are soon deleted, including for data protection reasons. If investigations of alleged ill-treatment incidents start only a few weeks after the day of the incident, footage may already be lost.

Frontex issued common minimum standards for border surveillance [97] Frontex, Guidelines for European common minimum standards for border surveillance, Warsaw, 2024, Section 2.3.7 (patrolling), point 8(j).
. They include border surveillance patrols being equipped to secure all evidence from the scene of incidents at the border. This could be an opportunity to explore how to use footage from border surveillance activities more effectively. Such footage can serve as physical evidence of the sequence of events during allegations of rights violations at borders.

Accurate GPS locations and border surveillance authorities’ internal communications about how to manage an incident may help significantly in reconstructing the sequence of events. For example, GPS data can confirm whether the alleged victims were inside the Member State’s territory during the incident. A comparison of the victims’ and the officers’ GPS locations during the incident may show at what time and for how long alleged victims and alleged perpetrators were together. These may all be important elements to establish the facts, but remain underutilised.

For example, the Greek Ombudsman noted that, in a disciplinary investigation, the people concerned provided photographs to prove that they had physically entered Greece. However, the police did not verify the coordinates in the photographs [98] Greek Ombudsman, 2021 Special Report – National Mechanism for the Investigation of Arbitrary Incidents (EMIDIPA), Athens, 2022, p. 80.
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In Hungary, an investigation took place into ill-treatment when the victim was being escorted through the border fence with Serbia. The Hungarian authorities investigating the case did not consider it necessary to request GPS data from police vehicles or from the official or private mobile phones of the police officers present at the incident. The authorities also did not contact the Serbian mobile network provider to obtain information about the positioning of the applicant’s telephone [99] ECtHR, Shahzad v Hungary, No 37967/18, 5 October 2023, paragraph 29.
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At sea, incidents may be complex and involve the coordination of the operation between the patrolling team on the spot and their superiors. In a shipwreck case in the eastern Aegean, a record of the coastguards’ internal communication during the incident would have helped clarify the disputed issue on how the authorities managed the incident [100] See, in this regard, ECtHR, Safi and Others v Greece, No 5418/15, 7 July 2022, paragraph 126.
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When the victim’s and the alleged perpetrator’s positions are disputed, releasing GPS records of police cars and relevant phones, as well as law enforcement internal communications, would be useful. This would, in many cases, not entail the release of sensitive information for law enforcement operations at borders. Similarly, although potentially protracting the investigations, requesting positioning data from the victim’s or witnesses’ mobile phone providers could, where legally permissible, result in reliable physical evidence to help reconstruct the sequence of events.

Under the ECHR, investigative authorities must take all reasonable steps available to them to secure evidence. This may include a toxicological report and forensic evidence [101] See ECtHR, Shahzad v Hungary, No 37967/18, 5 October 2023, paragraphs 54, 60 and 64; ElMasri v the former Yugoslav Republic of Macedonia [GC], No 39630/09, 13 December 2012, paragraph 183; Alhowais v Hungary, No 59435/17, 2 February 2023, paragraph 44.
, for example to verify the cause of the victim’s injuries or death. In the case of a death or injuries caused by shooting, ballistic expertise may help clarify the trajectories of shots [102] See ECtHR, Alkhatib and Others v Greece, No 3566/16, 16 January 2024, paragraph 90.
. When the harm suffered is the result of a collision between vehicles or vessels, an expert report on the incident may clarify important details about the crash [103] See ECtHR, Alkhatib and Others v Greece, No 3566/16, 16 January 2024, paragraph 90.
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Documentation of injuries provided by medical staff plays a central role in assessing claims of ill-treatment [104] See CPT, Documenting and Reporting Medical Evidence of Ill-treatment, CPT/Inf(2013)29-part, extract from the 23rd general report of the CPT, Council of Europe, Strasbourg, 2013; ENNHRI, Strengthening Human Rights Accountability at Borders, Saint-Gilles, Belgium, 2022, p. 18. See also ECtHR, Alkhatib and Others v Greece, No 3566/16, 16 January 2024, paragraphs 80 and 90; Safi and Others v Greece, No 5418/15, 7 July 2022, paragraphs 35 and 50.
. A lawyer in Latvia interviewed for this research explained that proving violent acts without a medical examination of the victims is extremely challenging [105] Phone interview with a Latvian attorney at law, October 2023.
. In a case of ill-treatment after a person was escorted through the border fence with Serbia, there was no forensic medical assessment of the victim’s injuries. This contributed to the ECtHR’s finding that the investigations were not effective [106] ECtHR, Shahzad v Hungary, No 37967/18, 5 October 2023, paragraph 64.
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Insufficient access to medical care at borders has resulted in difficulties in obtaining and compiling the medical documentation necessary to initiate investigations [107] ENNHRI, Strengthening Human Rights Accountability at Borders, Saint-Gilles, Belgium, 2022, p. 18.
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UN and Council of Europe bodies, national human rights institutions and civil-society organisations have been reporting serious fundamental rights violations against migrants and refugees at the EU external land and sea borders for several years [108] For an overview of credible reports, see FRA, Asylum and Migration – Progress achieved and remaining challenges, Publications Office of the European Union, Luxembourg, 2023, p. 10; FRA, Fundamental Rights Report – 2023, Publications Office of the European Union, Luxembourg, 2023, Section 6.1.2; FRA, Fundamental Rights Report – 2024, Publications Office of the European Union, Luxembourg, 2024.
. Such reports illustrate patterns of behaviour at borders that help to contextualise an individual incident under investigation. The ECtHR uses relevant credible materials that describe the treatment of migrants at borders to contextualise its analysis [109] See, for example, ECtHR, M. H. v Croatia, Nos 15670/18 and 43115/18, paragraphs 103–115 (which also refers to FRA’s materials); Thuo v Cyprus, No 3869/07, 4 April 2017, paragraphs 105–109.
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Patterns about fundamental rights violations at borders that emerge from credible reports, particularly those built on testimonies by affected individuals, may provide indications of systemic issues in specific locations or during specific activities. Moreover, credible reports may be useful for oversight or quality control functions, for example when issuing guidance or providing training to investigators.

A lack of due diligence during investigations has also emerged as an issue of concern.

First, some national investigations have not been sufficiently thorough . FRA reviewed ECtHR cases concerning investigations of ill-treatment and related rights violations at borders. This review points to national procedures in which the responsible body did not take the measures required to clarify important aspects of an incident. The result is that important evidence is not collected or lost. Examples include:

  • relying significantly on national policy that prohibits the unlawful towing of a boat to Turkish waters to close a case and not inquiring more thoroughly about what happened in the specific incident [110] ECtHR, Safi and Others v Greece, No 5418/15, 7 July 2022, paragraph 127.
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  • deviating on a core aspect of the case, without further explanations, from the factual findings of another criminal court, which acquitted the driver of the boat of charges of attempting to cause a shipwreck and endangering human life [111] ECtHR, Alkhatib and Others v Greece, No 3566/16, 16 January 2024, paragraph 92.
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  • closing the file by noting contradictions in the victims’ testimonies, although these were recorded with an interpreter who did not speak the victims’ language [112] ECtHR, Safi and Others v Greece, No 5418/15, 7 July 2022, paragraph 124.
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  • in a case involving a coastguard using a firearm, not assessing whether the use of force was necessary and proportionate [113] ECtHR, Alkhatib and Others v Greece, No 3566/16, 16 January 2024, paragraphs 91 and 93.
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Lawyers also expressed concerns about superficial investigations. For example, in Malta, a case of delayed rescue at sea was closed with an acquittal within 6 weeks. In that case, limited evidentiary value was given to the statements of the migrants [114] Malta, Magistrate J. Mifsud, Inquiry into the information filed by the NGO Repubblika in relation to the alleged wilful homicide with the intent to put the life of various individuals in manifest jeopardy in Malta’s Search and Rescue Region between the 9th and the 15th of April 2020 – Procès-verbal (Inkjesta dwar denunzja tal-NGO Repubbilka dwar l-allegat omicijdu volontarju wara li bil-hsieb jqieghdu f’periklu car il-hajja ta’ diversi persuni fis-Search and Rescue Region ta’ Malta bejn id-9 u l-15 ta’ April 2020 – Procès-verbal), 26 May 2020.
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In Greece, the National Transparency Authority published its findings from a first investigation into summary returns from Greece to Türkiye, which involved allegations of ill-treatment. It concluded that the evidence available did not allow it to verify the alleged incidents. However, the investigators reached this conclusion without collecting evidence from victims or direct witnesses of the examined incidents. Evidence also was not collected from key organisations working in Greece on asylum and migration, such as the UNHCR or the International Organization for Migration [115] Greece, National Transparency Authority, Investigation report OM3/4 (Έκθεση Έρευνας ΟΜ3/4_2022), Athens, 2022.
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Second, law enforcement authorities’ statements appear to be given greater weight than those of migrants. In Greece, the Greek Ombudsman noted that there were evaluative judgments that showed potential bias in the conclusions of disciplinary investigations of incidents of alleged police violence. These included statements about the general reliability of foreigners’ complaints [116]
 Greek Ombudsman, 2021 Special Report – National Mechanism for the Investigation of Arbitrary Incidents (EMIDIPA), Athens, 2022, pp. 80–81; Greek Ombudsman, 2022 Special Report – National Mechanism for the Investigation of Arbitrary Incidents, Athens, 2023, p. 34.
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In one case concerning Hungary, the ECtHR noted that the investigators applied a higher standard when assessing contradictions in the migrants’ statements than to those of the police officers. They also relied on statements of alleged perpetrators to close the case [117] ECtHR, Shahzad v Hungary, No 37967/18, 5 October 2023, paragraph 63.
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Other shortcomings in the collection of evidence are that officers of the same institution that is responsible for the alleged rights violations may be the ones carrying out preliminary investigations. To address this challenge, in Greece, the Supreme Court Prosecutor instructed prosecutors to ensure that, in the context of complaints by detainees against police and correctional officers relating to ill-treatment, preliminary investigations are conducted by first instance court prosecutors and not by police officers [118] Greece, Supreme Court Prosecutor, Circular 1/2023 (Εγκύκλιος 1/2023), Athens, 3 January 2023. The circular was issued following ECtHR, Torosian v Greece, No 48195/17, 7 July 2022, in which the ECtHR found that investigations into police abuse had been ineffective.
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Some actors reported more general concerns about the impartiality of investigation authorities, for example around the investigation of the Adriana shipwreck incident in Greece in June 2023. The Council of Europe Commissioner for Human Rights expressed concern about reports of pressure on shipwreck survivors and about allegations of irregularities in the collection of evidence and testimonies [119] Council of Europe, Commissioner for Human Rights, ‘Pylos shipwreck investigation: Human Rights Commissioner addresses letter to Greek Prime Minister’, Strasbourg, 28 July 2023.
. Civil-society organisations reported that witnesses to the shipwreck referred to omissions and tampering of their testimonies. This included identical records of different witness statements [120] See RSA, Greece in Institutional Decline – , Joint civil society submission to the European Commission on the 2024 Rule of Law Report, Chios, Greece, 2024, paragraph 34.
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Promising practice: establishing special departments for investigation and prosecution in North Macedonia and Slovenia

In North Macedonia, the Office of Ombudsman, the Ministry of Internal Affairs and the Public Prosecutor established a trilateral mechanism to enhance the effectiveness of investigations of crimes committed by law enforcement and prison officers. Such cases are investigated and prosecuted by a specialised department at the Specialised Unit of the Basic Prosecutor for Organised Crime and Anti-Corruption. As part of the mechanism, the Ombudsman is mandated to protect the rights and interests of victims of torture and other forms of ill-treatment.

In Slovenia, a special department investigates cases of criminal offences by military, intelligence and law enforcement officials. It operates as an independent internal organisational unit holding a special position within the State Prosecutor’s Office of the Republic of Slovenia.

Source: For Slovenia, see Specialised State Prosecutor’s Office, ‘Department for the Investigation and Prosecution of Official Persons Having Special Authority’; for North Macedonia, see Ombudsman, Annual Report for 2023 (ГОДИШЕН ИЗВЕШТАЈ), 2024.

One practical suggestion that emerged was to create a separate and specialised team of prosecutors to investigate cases against law enforcement officers suspected of having committed a criminal offence entailing fundamental rights violations [121] Croatia, Ombudswoman, Communication from an NHRI (Ombudswoman of the Republic of Croatia) (18/07/2023) in the case of M. H. and Others v Croatia, No 15670/18, rule 9 submission with regard to the execution of the judgment of the ECtHR, 18 July 2023.
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