Human rights actors report serious, recurrent and widespread rights violations against migrants and refugees during border management. Although numerous reports appear credible, many incidents are not investigated. When criminal investigations are initiated, these are often closed at pretrial phase.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment expresses concern that few investigations take place. It also notes that investigations often do not comply with standards developed by the European Court of Human Rights. Investigations not meeting the requirements of independence, thoroughness, transparency, promptness and victim participation pose risks to respect for the rule of law.

An increasing number of cases are going to the European Court of Human Rights. In the last few years, the Strasbourg court has adjudicated five cases in which it found that incidents were not effectively investigated. That is, national authorities in Greece, Croatia and Hungary did not effectively investigate incidents of ill-treatment and loss of life during border management. Examples include insufficient efforts to locate and hear victims and witnesses, hindering lawyers in their work and not having access to key evidence (e.g. footage from border surveillance).

The low number of investigations of such cases, despite the high number of credible allegations, casts a negative light on border management authorities’ operation. This in turn undermines the high professional standards guiding their work. Genuine efforts to investigate each incident promptly and effectively would not only provide justice to victims but also protect border management staff from false allegations.

More transparency is needed on the number and type of cases that are investigated, as well as on their results. This would strengthen the perception that the matter is being taken seriously.

There are objective challenges to investigating allegations of fundamental rights violations at borders. This is because evidence for what may have happened at night in remote locations (e.g. borders in forests or at sea) is often scarce.

The responsibility to investigate rights violations lies with the Member States. They must do so while respecting the requirements of Article 47 of the EU Charter of Fundamental Rights (the charter). The European Union Agency for Fundamental Rights (FRA) presents 10 points to support authorities investigating incidents of loss of life and alleged ill-treatment that occur during border management.

The European Commission also has an important role in promoting effective national investigations. It does this particularly through its work on monitoring adherence to Schengen rules and in its annual State of Schengen Report. More generally, it supports Member States in implementing European integrated border management policies, including through the use of EU funds.