Article 47 of the charter provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal.
The way Member States organise and run their justice systems is primarily a matter of national law. EU law relies on functioning national justice systems.
When national border guards violate the fundamental rights safeguards in the Schengen Border Code [11] 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). or the European border and coast guard regulation [12] Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1). , it is the Member State’s responsibility to carry out investigations based on the rules and procedures set out in national law.
Member States’ duty to carry out effective investigations into allegations of fundamental rights violations stems from Article 19 of the Treaty on European Union. It requires Member States to provide remedies to ensure effective legal protection in the fields covered by EU law [13] See, for example, Court of Justice of the European Union (CJEU), Associação Sindical dos Juízes Portugueses v Tribunal de Contas, C-64/16, 27 February 2018. .
In one area – namely for alleged fundamental rights breaches during screening – EU law goes further. Article 10 of the screening regulation expressly obliges Member States to ‘adopt relevant provisions to investigate allegations of non-respect for fundamental rights in relation to the screening’. Member States must ensure, where appropriate, ‘referral for the initiation of civil or criminal justice proceedings in cases of failure to respect or to enforce fundamental rights in accordance with national law’. Independent fundamental rights monitoring mechanisms must be allowed ‘to trigger investigations and to monitor the progress of such investigations’. [14] Regulation (EU) 2024/1352 of the European Parliament and of the Council of 14 May 2024 amending Regulations (EU) 2019/816 and (EU) 2019/818 for the purpose of introducing the screening of third-country nationals at the external borders (OJ L 2024/1352, 22.5.2024).
When the EU finds that Member States are not investigating allegations of fundamental rights during border management, it may consider this a gap in implementing EU Schengen rules. For example, under the Schengen evaluation and monitoring mechanism [15] Council Regulation (EU) 2022/922 of 9 June 2022 on the establishment and operation of an evaluation and monitoring mechanism to verify the application of the Schengen acquis, and repealing Regulation (EU) No 1053/2013 (OJ L 160, 15.6.2022, p. 1). , the Council of the EU recommended that Greece should strengthen the fundamental rights component of its national border management governance structure. It also recommended that Greece carry out thorough and prompt investigations of reported serious allegations of ill-treatment [16] Council of the European Union, Council implementing decision setting out a recommendation on addressing the deficiencies identified in the 2021 evaluation of Greece on the application of the Schengen acquis in the field of management of the external borders, Brussels, 12 April 2022, recommendations 2 and 24. .
In some cases, EU actors also investigate incidents. Under Article 111 of the European border and coast guard regulation [17] Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No. 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1). , a person whose fundamental rights are directly affected by the conduct of staff involved in Frontex operational activities may submit a complaint in writing to Frontex (see Section 3.4).
The ECtHR has developed case-law for prompt and effective investigations of violations of rights set out in the European Convention on Human Rights (ECHR), which Member States need to comply with. Pursuant to Article 52(3) of the charter, such ECtHR case-law must inform the meaning of the right to an effective remedy in Article 47 of the charter.
FRA activity: providing guidance on prompt and effective investigations
National investigations must be prompt and effective, respecting the requirements set by the ECtHR. In 2021, FRA produced joint guidance with the Council of Europe setting out human rights standards stemming from the ECHR and EU law that apply to effective remedies for human rights violations at borders. Prompt and effective investigations increase accountability for rights violations.
Source: FRA and Council of Europe, European standards on legal remedies, complaints mechanisms and effective investigations at borders, Vienna, Strasbourg, 2021.
Under EU law, the victims’ rights directive entitles victims of violent crimes to protection. Such protection has to be afforded regardless of the victim’s legal status. Some victims’ rights, such as access to information and to victim support services, do not depend on the victim making a formal complaint. They also apply when criminal procedures have not (yet) started [18] 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). See also FRA, Victims’ Rights as Standards of Criminal Justice – Justice for victims of violent crime – Part I, Publications Office of the European Union, Luxembourg, 2019, p. 32. .
