FRA published a note in October 2018 on “Fundamental rights considerations: NGO ships involved in search and rescue in the Mediterranean and criminal investigations”. FRA updated the two tables accompanying this note. It describes criminal and administrative proceedings against non-governmental organisations (NGOs) or other private entities deploying search and rescue (SAR) vessels, updated in June 2019, June 2020, and December 2020. Since December 2020, eight new legal proceedings started. The map below illustrates the position and situation of civil society SAR vessels and aircraft as of 15 June 2021. It includes those who had to stop their activities. It also indicates past and ongoing legal proceedings against the vessels and/or their crew members.
Map showing NGO ships involved in SAR operations in the Mediterranean Sea between 2016 and 15 June 2021
Due to ongoing criminal and administrative proceedings, vessel seizures, as well as mandatory maintenance work, the majority of these assets are blocked at ports without the possibility of carrying out SAR. Out of a total of 19 assets, six currently operate (in green on the map). Only two vessels perform SAR operations (‘Geo Barents’ and ‘Ocean Viking’). The remaining vessels and reconnaissance aircraft undertake monitoring activities. Nine are blocked in ports pending legal proceedings (in red on the map). Four are docked for other reasons, such as mandatory maintenance work and temporary operation breaks (in yellow on the map). The map also displays the vessels and/or their crew subject to past or current legal proceedings.
The updated two tables accompanying the note incorporate new developments during the past six months. Table 1 is an overview of all NGOs and their vessels and reconnaissance aircraft involved in SAR since 2016 in the Mediterranean. It also shows if they have been subject to legal proceedings. In the past six months, two new NGO rescue vessels (‘Geo Barents’ and ‘Sea-Eye 4’) and one reconnaissance aircraft (‘Colibri 2’) started operating. However, Sea-Eye 4 is currently blocked at port due to administrative seizure.
In addition to the few civil society rescue vessels deployed, State vessels and commercial ships also carry out rescue activities. In recent months, rescued people were quarantined on board before landing or in ports right after their disembarkation to prevent any potential spread of COVID-19 (for more on quarantine vessels, see FRA’s latest Quarterly Bulletins on migration-related fundamental rights concerns). Furthermore, Italian health authorities required NGO crew members to undergo two-weeks quarantine on board after rescued people disembarked.
Table 2 provides details on ongoing or closed investigations and administrative or criminal proceedings against private entities involved in SAR operations as of June 2021. It shows that Germany, Greece, Italy, Malta, the Netherlands and Spain initiated 58 proceedings since 2016. Eight new legal cases were opened in the past six months in Italy. Four of them concerned vessels and consisted of administrative seizures due to technical irregularities relating to maritime security, identified after port authority inspections. The most common issues detected by port authorities concerned the excessive number of passengers, ship assets not working properly, having too many life jackets on board, having inadequate sewage systems for the number of potentially rescued people, as well as environmental pollution. The remaining four proceedings concern individual crew members charged with ‘aiding and abetting illegal immigration’. In May 2021, the Prosecutor of Agrigento (Italy) dismissed some of the charges against the captain of ‘Sea-Watch 3’ who was prosecuted for aggression against a warship and for facilitating irregular immigration.
In regard to the legal proceedings against the vessel ‘Sea-Watch 4’, the Administrative Court of Sicily referred the case to the Court of Justice of the EU. It asked to clarify how the Port State Control Directive (Directive 2009/16/EC) applies to vessels which are classified by the flag State as commercial but in fact carry out non-commercial activities, such as SAR. The referring judge asked the EU Court to clarify whether the Port State has the power to carry out detailed inspections on vessels because they transported more people than indicated in the safety certificate, as a result of saving people who were in distress at sea.
In the previous update, FRA reported that the former Italian Minister of the Interior, Matteo Salvini, was on trial. He was charged with aggravated kidnapping for refusing the disembarkation of rescued migrants from the Italian ‘Gregoretti’ coastguard ship and the ‘Open Arms’ NGO vessel in the summer of 2019. The charges in the ‘Gregoretti’ case were dropped, but the ‘Open Arms’ case is still ongoing.
The applicable EU and international legal and policy framework remains unchanged. The original note’s related legal analysis is still valid and can be consulted via this link. All information is up-to-date until 15 June 2021.
FRA will follow closely any further developments and report in its Quarterly Bulletins on migration-related fundamental rights concerns for 21 selected EU Member States and two candidate countries.
Download Table 2: Legal proceedings by EU Member States against private entities involved in SAR operations in the Mediterranean Sea (15 June 2021) (pdf, 273 KB) >>
Since 2018, FRA publishes data in its annual Fundamental Rights Report on vessels that were not immediately allowed to disembark migrants and waited at sea to be assigned a safe port for more than 24 hours (2019 – see table on p. 130, and 2020 – see table on p. 113). In 2020, as in previous years, rescue boats in the Central Mediterranean continued to remain at sea for a long time waiting for authorisation to enter a safe port. Delays in disembarkation risk the safety and physical integrity of rescued people. The overview table in the tab 'Table - Vessels without a safe port' describes instances when vessels with rescued people had to remain at sea for more than a day waiting for a safe port. In 2020, there were 22 such instances compared to 28 in 2019 and 16 in 2018.
The table shows that in 22 instances, 3,597 rescued people (including at least 954 children) remained at sea for more than a day. In some cases, they waited as multiple rescue operations were carried out. In seven cases, they remained at sea for a week or more – until the national authorities allowed them to dock. In August 2020, some 25 people remained on board of a Danish container ship for almost 40 days. Among those disembarked in Italy and Malta, only a few were relocated to other EU Member States. This was partly due to the restrictions related to the COVID-19 pandemic.
Many asylum seekers, refugees and migrants rescued in the Central Mediterranean were picked up by the Libyan coastguards and brought back to Libya. Of those who left Libya by sea in 2020, 11,891 disembarked in Libya, compared to 9,225 in 2019 and almost 15,000 in 2018. Italy extended its cooperation agreement with Libya in February 2020. Malta signed a memorandum of understanding with Libya in May 2020 to cooperate in operations against irregular migration. As the political situation in Libya deteriorated, in September 2020, the UNHCR asked states to refrain from returning any people rescued at sea to Libya.
Providing assistance to people in distress at sea is a duty of all states and shipmasters under international law. Core provisions on search and rescue (SAR) at sea are set out in the 1974 International Convention for the Safety of Life at Sea (SOLAS), the 1979 International Convention on Maritime Search and Rescue (SAR Convention), and the 1982 UN Convention on the Law of the Sea (UNCLOS). In general, the shipmaster (of both private and government vessels) has an obligation to render assistance to those in distress at sea without regard to their nationality, status, or the circumstances in which they are found. A rescue operation terminates only when survivors are delivered to a ‘place a safety’, which should be determined taking into account the particular circumstances of the case, as specified by the 2004 amendments to the SAR Convention adopted by the International Maritime Organisation (IMO). The IMO Guidelines on the treatment of persons rescued at sea further specify that a ‘place of safety’ is “a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met”. The selection of a place of safety should take due account of the principle of non-refoulement. Disembarkation where the lives of refugees and asylum seekers could be at risk of persecution, torture or other serious harm must thus be avoided.
In the context of controlling the EU’s external sea borders, EU law incorporates the obligation to render assistance at sea and to rapidly identify a place of safety where rescued people can be disembarked in compliance with fundamental rights and the principle of non-refoulement in the Sea Borders Regulation (Regulation (EU) No. 656/2014). This prohibits disembarkation of rescued people in a country where there is a risk of torture or ill-treatment applies irrespective of any request for asylum by the individual. The duty to fully respecting the right to life (Article 2 of the EU Charter of Fundamental Rights and the European Convention on Human Rights) and to save lives at sea rests primarily with EU Member States. These core obligations cannot be circumvented under any circumstances, including for considerations of external border controls. As part of the new Pact on Migration and Asylum, the European Commission Recommendation (EU) 2020/1365 on cooperation among Member States concerning SAR operations carried out by private vessels encouraged Member States to ensure rapid disembarkation in a place of safety, where the fundamental rights of rescued people are guaranteed, in conformity with the EU Charter and the principle of non-refoulement.