30
juillet
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.

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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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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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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