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.

Different actors are responsible for investigating incidents of loss of life and alleged ill-treatment in border management.

At the European level, cases may reach the ECtHR and, in exceptional situations, also the Court of Justice of the European Union (CJEU) [28] See CJEU, Hamoudi v Frontex, T-136/22, 13 December 2023 (under appeal as case C-136/24); and CJEU, WS and Others v Frontex, T-600/21, 6 September 2023 (under appeal as case C-679/23).
. People who are directly affected by the action or failure to act of staff involved in a Frontex activity and whose rights have been breached may submit a complaint to Frontex [29] Regulation (EU) 2019/1896of 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), Article 111 (European border and coast guard regulation).
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At the national level, this includes ministries and law enforcement authorities, which carry out disciplinary investigations against their personnel. In the case of reported criminal conduct, police and public prosecutors carry out pretrial investigations before the file is passed on to a judge. Ombudspersons and other national human rights institutions may also have a mandate to investigate individual cases.

Promising practice: involving the Greek Ombudsman to review investigations of police arbitrariness

Under Greek law, the Greek Ombudsman has been mandated to review internal investigations of arbitrariness by law enforcement personnel. In its capacity as the National Mechanism for the Investigation of Arbitrary Incidents, the Ombudsman is involved in overseeing the processing of complaints about the actions of uniformed personnel. This refers to the Hellenic Police, the Port Authority (Hellenic Coast Guard), the Fire Brigade and the personnel of penitentiary facilities. It does so by reviewing the investigation file and, where necessary suggesting further action to the competent services. The Ombudsman may also carry out its own investigation in parallel to or in absence of an internal disciplinary investigation.

Source: Greece, Law 3938/2011, Article 1; Law 4443/2016, Article 56; and Law 4662/2020, Article 188.

There are three overall conclusions from FRA’s data collection on national investigations.

First, the results of investigations are often not public. Decisions on disciplinary procedures remain internal. This is also true, in most cases, for decisions taken during pretrial investigations to file a case.

Depending on the Member State and the adjudicating court, judicial decisions might also not be publicly available. Lawyers and civil-society organisations that were contacted for this research raised the general lack of transparency about investigations. More information is required on the number and type of cases that are investigated, as well as on their results. This would strengthen the perception that national authorities are taking the matter seriously.

Second, FRA encountered difficulties when attempting to count the number of investigations into incidents of loss or life, ill-treatment and related fundamental rights violations against migrants and asylum seekers during border management. Particularly for criminal procedures, the type of proceedings that are relevant for this report – namely cases concerning alleged criminal conduct against migrants and refugees by law enforcement authorities in the context of border management – cannot, in several Member States, be extracted from existing statistics. Cases need to be counted manually.

Third, a sense of impunity prevails. Very few national court proceedings lead to convictions. This is particularly true when compared with the number of credible reports about serious fundamental rights violations. Although FRA may not have been able to identify all existing cases, it could find only three criminal convictions. There were two in Hungary (a third one is under appeal) and one in Spain [30] For Hungary, see Kbk.II.116/2021, Regional Court of Szeged Military Tribunal; Kb.I.7/2023, Regional Court of Győr Military Tribunal; Kbf.12/2020, Budapest – Capital Regional Court of Appeal Military Tribunal. FRA does not have information on the details of the cases. For Spain, see SAP ML 103/2021, Melilla Provincial Court.
. In addition, very few disciplinary proceedings led to sanctions: four in Croatia and four in Hungary, according to the data collected.

This research could not reach a conclusion on whether the sanctions imposed are sufficiently dissuasive. FRA could not access most judgments and decisions.

In the criminal convictions in Hungary, the defendants received a financial penalty in one case and a financial penalty and a suspended imprisonment sentence in the other case.

In the Spanish case, an officer seriously injured a child trying to jump the queue at the border crossing point and attempted to throw a vehicle wheel over the fence in Melilla. In that case, the officer was sentenced to 6 months’ imprisonment, a suspension of the right to passive suffrage and a financial penalty.

The disciplinary sanctions imposed included reprimands, delays in promotion, fines and conditional termination of service, subject to a probationary period (see Section 3.1).

Standards of conduct guide the work of law enforcement authorities, including those in charge of border control [31] At the EU level, see Frontex, Code of Conduct – Applicable to all persons participating in Frontex operational activities, Publications Office of the European Union, Luxembourg, 2020.
. Infringements of rules of conduct may be subject to disciplinary investigations.

The objectives and scope of disciplinary investigations vary across Member States. However, the primary aim of such investigations is to sanction officers’ inappropriate conduct and protect the reputation of law enforcement actors. Their aim is not necessarily to restore justice for the victim. As an illustration, Latvian legislation clarifies that the aim of disciplinary procedures is to ‘punish the guilty official and to achieve that he or she and other officials would comply with the service discipline and refrain from committing disciplinary offences’ [32] Latvia, Law on disciplinary liability of the officials with special service ranks working in institutions of the system of the Ministry of the Interior and the Latvian Prison Administration (Iekšlietu ministrijas sistēmas iestāžu un Ieslodzījuma vietu pārvaldes amatpersonu ar speciālajām dienesta pakāpēm disciplināratbildības likums), 1 October 2006, Article 13.
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The scope and procedures of such investigations vary. Typically, specialised units run such an investigation. When there are founded allegations of criminal conduct, national criminal procedure rules require that cases are forwarded to the public prosecutor.

FRA contacted the authorities in charge of disciplinary investigations in 16 Member States and received replies from 11 of them, as shown in Table 1. For Member States that did not reply, FRA included cases reported by lawyers and civil society.

Between January 2020 and September 2023, 118 cases were subject to disciplinary investigations. Of these, 52 were in Greece. Eight of the 61 closed cases led to sanctions – four in Croatia and four in Hungary (see Table 1).

 

The disciplinary sanctions imposed in Croatia included reprimands, fines and conditional termination of service, subject to a probationary period [33] Data received from the Croatian Ministry of Interior on 1 December 2023.
. The sanctions in Hungary consisted of reprimands and a delay in promotion for 2 years [34] Data received from the Hungarian Police (Ready Reserve Police) on 16 January 2024.
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The Greek Ombudsman noted that, despite the growing number of investigations, there is a certain reluctance by the competent disciplinary bodies of the enforcement agencies are persistently reluctant to investigate allegations of unlawful actions [35] Greek Ombudsman, ‘Third party intervention by the Greek Ombudsman to the European Court of Human Rights in relation to applications Nos 15067/21 (G. R. J. v Greece) and 15783/21 (A. E. v Greece)’ (‘Δελτίο Τύπου | Παρέμβαση τρίτου του Συνηγόρου του Πολίτη κατόπιν πρόσκλησης του ΕΔΔΑ για το ζήτημα των επαναπροωθήσεων’), 26 March 2024, pp. 10–11.
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Concerning the duration of disciplinary procedures, many cases have been pending for more than 6 months.

Table 1: Overview of disciplinary investigations reported to FRA, 2020–2023, 16 Member States

Member State

Reply to FRA request

Total number of reported cases

Number of pending cases

Bulgaria

x

1

1

Croatia

16

2

Cyprus

x

n/a

n/a

Estonia

0

0

Finland

1

0

France

x

11

7

Greece

52

35

Hungary

17

8

Italy

x

n/a

n/a

Latvia

3

2

Lithuania

2

0

Malta

x

n/a

n/a

Poland

8

0

Romania

5

2

Slovakia

0

0

Spain

2

0

Total

118

57

Notes: Data for 2023 include the period from January to September 2023. For Croatia, the list includes all preliminary investigations by the Internal Control Service of the Ministry of Interior, five of which led to the opening of formal disciplinary investigations. , FRA received information from the competent ministries and/or law enforcement bodies; X, FRA did not receive information from the competent ministries and/or law enforcement bodies; n/a, data not available.

Source: For Bulgaria and France: civil society, lawyers and legal aid organisations. For Estonia and Hungary: police. For Greece: Hellenic Police and Hellenic Coast Guard. For Spain, Croatia and Slovakia: Ministry of Interior. For Finland, Latvia, Lithuania, Poland and Romania: border guards.

The investigations reported also included acts of a criminal nature. As an illustration, in Greece, the Hellenic Police reported a case concerning ‘allegations of police brutality against foreigners, illegal removal of their money, mobile phones and other personal items, death of a man due to police indifference and illegal pushbacks from Evros to Turkey’ [36] Greece, information provided by the Hellenic Police on 30 November 2023.
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Decisions on disciplinary investigations are not public. In addition, those organisations that report the incident and are in contact with the alleged victim may also not have information about the progress of investigations. For example, a civil-society organisation in France reported that it had not received information on the progress of complaints it had filed with the police [37] France, written contribution by a civil-society organisation in October 2023.
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The police carry out criminal investigations upon a complaint by the victim, upon an order by a prosecutor or investigative judge or on their own initiative.

Criminal procedures consist of two parts. A pretrial phase and a trial phase. When an incident is reported to the police, the responsible officers undertake a preliminary investigation. This determines whether there is sufficient substance to initiate criminal investigations and forward the case to the public prosecutor. If not, investigations are closed at this stage.

When the geographically and thematically responsible public prosecutor receives a case, he or she reviews it. The prosecutor may ask the police to carry out additional investigations. When the prosecutor is satisfied that the suspicion of criminal conduct is sufficiently substantiated, the case goes to a judge who starts the trial phase. Otherwise, the public prosecutor archives the case.

For this report, FRA approached courts and/or ministries of justice in 16 Member States. They were asked to provide an overview of pending and closed cases concerning criminal offences allegedly committed by border management authorities against migrants.

FRA received information from the judicial and/or prosecutorial authorities of seven Member States. Three of them (Croatia, Lithuania and Romania) replied that such statistics cannot be extracted or are not available (Table 2). When FRA did not receive any data from them, it included information from other sources, including law enforcement authorities, lawyers and civil society. For civil-society sources, FRA included only individual cases that were described in sufficient detail. As an illustration, FRA did not include the over 200 cases that the Greek Helsinki Monitor submitted to prosecutors in Greece in 2020 and 2021 [38] Greek Helsinki Monitor, ‘200+ illegal pushbacks of approximately 10 000 foreigners are being investigated by the Supreme Court Prosecutor’s Office and the Ombudsman after appeals by the Greek Helsinki Monitor’ (‘200+ παράνομες επαναπροωθήσεις περίπου 10 000 αλλοδαπών ερευνούν Εισαγγελία Αρείου Πάγου και Συνήγορος Πολίτη μετά από προσφυγές του ΕΠΣΕ’), 21 July 2021.
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The data that FRA collected are not comprehensive. Nevertheless, between January 2020 and September 2023, there were at least 84 criminal investigations in 10 Member States, most in Greece (35) and Hungary (19). At the end of September 2023, 34 cases were pending at trial or pretrial phase, half of them in Greece. Of the 50 cases closed, there were three criminal convictions: two in Hungary (with a third under appeal) and one in Spain [39] Hungary, Supreme Court, case No Bhar.I.1248/2020/28, 25 May 2021 (on appeal from Budapest, Capital Regional Court of Appeal military tribunal, case No 6.Kbf.12/2020/20/I); and Regional Court of Szeged military tribunal, case No Kbk.II.116/2021 (not public). In addition, as regards Regional Court of Győr military tribunal, case No Kb.I.7/2023 (not public), the conviction is not final, as it has been appealed. The Melilla Provincial Court adjudicated the Spanish case; see SAP ML 103/2021.
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Table 2: Overview of judicial investigations, 20202023, 16 EU Member States

Member State

Prosecutors/courts replied

Input from other actors

Total number of reported cases

Number of cases at pretrial or trial phase

Number of convictions

Illustrations of criminal conduct alleged (selected)

Bulgaria

x

Civil society

4

1

Excessive use of force and theft during apprehension and/or summary removal to Türkiye

Croatia

Ministry of Interior

11

3

Torture, inhuman or degrading treatment, rape, robbery, unlawful deprivation of liberty, abuse of position of authority

Cyprus

x

UNHCR and civil society

0

0

Estonia

0

0

Finland

x

0

0

France

x

Civil society

4

3

Manslaughter and non-assistance to people in danger (drowning of 27 people in the Channel), ill-treatment and abandonment of people unable to protect themselves

Greece

x

Hellenic Police, Hellenic Coast Guard, National Commission for Human Rights

35

15

Ill-treatment, physical injury, torture, rape and theft during apprehension and/or summary removal to Türkiye; homicide; illegal use of firearms

Hungary

19

6

2

Assault

Italy

x

0

0

Latvia

1

0

Unlawful confiscation of property

Lithuania

Civil society

1

1

Severe health impairment, abuse of authority

Malta

x

Civil society

1

n/a

Wilful homicide and attempted wilful homicide (delayed rescue and boat’s engine cable)

Poland

x

Civil society

1

1

Putting migrants’ lives and health at risk in the context of summary returns to the Belarus border

Romania

Border Police

3

2

Abusive behaviour and theft

Slovakia

0

0

Spain

x

Civil society

4

2

1

Homicide by gross negligence, denial of assistance, beating causing loss of vision, excessive use of force

Total

84

34

3

Notes: Data for 2023 are only up to September 2023. The table includes only cases that FRA could identify and is therefore not comprehensive. , FRA received information from prosecutorial or judicial authorities; X, FRA did not receive information from prosecutorial or judicial authorities; n/a, data not available; UNHCR, Office of the United Nations High Commissioner for Refugees. For the Member States for which FRA did not receive a reply from prosecutorial or judicial authorities or that replied that there were no relevant statistics (Croatia, Lithuania and Romania), the table includes cases reported by other actors.

Source: FRA, 2024.

In addition to the cases listed in Table 2, there are cases in which the police concluded that there was no substance to initiate any criminal investigations. In Latvia, for example, the Internal Security Bureau, which conducts criminal investigations following a complaint, reviewed 27 cases. It found that in 25 of those cases, there was no legal basis for initiating a criminal procedure; the other two cases were pending [40] Information provided by the Latvian authorities in May 2024.
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The limited information available does not allow conclusions as regards the length of criminal procedures for fundamental rights violations during border management. It also does not allow a determination to be made about whether the duration differs from that of criminal procedures in general. According to 2020 data, the calculated time necessary for a pending criminal case (in general, not just those that are the subject of this report) to be resolved, considering the current pace of work, varies significantly between Member States. In Estonia it is 30 days and in Hungary it is 54 days. On the other hand, in Croatia it is 223 days, in Cyprus it is 317 days, in Italy it is 498 days and in Malta it is 792 days [41] Council of Europe, CEPEJ (European Commission for the Efficiency of Justice), European Judicial Systems CEPEJ Evaluation Report – 2022 evaluation cycle (2020 data) – Part 1, Strasbourg, p. 126. Data regarding specific Member States were extracted from the interactive table Efficiency EN on 5 May 2024.
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Most investigations are closed at pretrial phase. They are closed either by the police at an early stage of the investigation or by the prosecutor who concludes that there is not sufficient evidence to issue an indictment and pass on the case to a judge (for more information of the lack of evidence, see Section 4.2). Lawyers and civil-society organisations contacted for this research in Croatia, Latvia and Poland noted the difficulty in gathering sufficient evidence to get the responsible authorities to initiate criminal proceedings.

Investigative authorities may also act proactively. For example, in Latvia, the Internal Security Bureau, which determines if there is sufficient substance to initiate criminal investigations, informed FRA that it had conducted two preliminary investigations based on public information identified by one of its employees.

In Croatia, in 2021, a civil-society organisation recalled at least 18 complaints about apprehensions and summary returns of migrants. Several of these complaints involved violence. The complaints were submitted to the prosecutor but none led to an indictment [42] Centre for Peace Studies (Centar za mirovne studije), ‘Thousands of refugee testimonies but not a single effective investigation, 2 April 2021.
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In Latvia, the criminal procedural law standard for initiating criminal proceedings is the submission of ‘information indicating the committing of a possible criminal offence’. This standard is interpreted strictly and lawyers find it difficult to meet [43] Latvia, phone conversation with two different lawyers and an online meeting with a civil-society organisation, October 2023. For the standard required, see Latvia, Criminal Procedure Law (Kriminālprocesa likums), 1 October 2005, Articles 369 and 373.
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In Poland, legal aid organisations and lawyers mentioned five cases of summary returns conducted in a way that put migrants’ lives or health at risk. They brought these to the attention of the authorities alleging misconduct and/or negligence of the border guards. However, the public prosecutor did not initiate criminal proceedings in any of these cases due to the lack of features of a criminal offence [44] Phone consultations with a lawyer and two civil-society organisations, October 2023.
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Promising practice: appointing a special team of prosecutors in Poland

In March 2024, the Polish Prosecutor General issued an order to appoint a team of prosecutors to investigate reports of abuse of powers by law enforcement officers when taking actions against migrants and refugees at the Polish–Belarusian border. In April 2024, the Lublin Regional Prosecutor assigned this task to the District Prosecutor in Siedlce. The latter opened an investigation into allegations of rights violations during border management affecting migrants and refugees whose lives and health were at risk or who sought international protection in Poland.

The team will hear victims, where they can be identified, and humanitarian actors assisting migrants and refugees at the Polish–Belarusian border. The team of prosecutors will also analyse already concluded cases, assessing if the decisions issued were legitimate and whether cases should be reopened.

Source: Poland, Ministry of Interior, May 2024.

One factor that may explain the closure of cases at pretrial phase relates to what needs to be proven and to what level of certainty. In criminal proceedings, to convict an individual for a crime, a court must be able to conclude beyond any reasonable doubt that a specific person committed it. Although the type and amount of evidence available may be sufficient to show that the victim suffered harm, it may not be enough to identify the person responsible for it.

Often, the alleged ill-treatment occurs in remote locations, at night and without the presence of witnesses. In such cases, simply reconstructing the facts of an incident – establishing the location and time where it happened, the equipment used, the authority involved – is difficult. Therefore, identifying the individual officers involved, who may not be wearing a name or number tag, and proving their involvement beyond any reasonable doubt is, in the absence of a confession or other conclusive evidence, particularly arduous.

The difficulty in meeting the standard of proof required under criminal law may be one reason why lawyers rely more on the ECtHR than on national criminal courts [45] See, as an illustration, Greek Refugee Council, ‘[https://asylumineurope.org/reports/country/greece/asylum-procedure/access-procedure-and-registration/access-territory-and-push-backs/42]’, 8 June 2023, in AIDA, Greece – Country report.
. When examining potential violations of rights set out in the ECHR, the Strasbourg court needs to be satisfied that the victims suffered a violation and that the state was responsible for it. It does not need to establish the identity of the perpetrator.

For further information on the effectiveness of national investigations, see Chapter 4.

Most national human rights institutions have the power to investigate individual complaints of human rights violations and make recommendations for redress. In 2019, this was the case for 22 of the 27 Member States. The types of complaints that national human rights institutions can examine depends on their specific mandate. For example, some of them have the power to examine complaints only under their mandate as equality bodies [46] For more details, see FRA, Strong and Effective National Human Rights Institutions – Challenges, promising practices and opportunities, Publications Office of the European Union, Luxembourg, 2020, Figure 12 and Annex 2. See also ENNHRI, Strengthening Human Rights Accountability at Borders, Saint-Gilles, Belgium, 2022. See also FRA, NHRI Accreditation Status and Mandates – Update 2024, Vienna, 2024.
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Some national human rights institutions have been active in investigating individual complaints relating to alleged rights violations linked to border management. For example, the Croatian Ombudswoman investigated cases of apprehensions and summary expulsions, several of which entailed ill-treatment allegations [47] Croatia, Ombudswoman, Report of the performance of activities of the national preventive mechanism for 2019, 2020, pp. 25–28; Ombudswoman, Report of the performance of activities of the national preventive mechanism for 2020, 2022, pp. 25–27; Ombudswoman, Report of the performance of activities of the national preventive mechanism for 2021, 2023, pp. 16–19.
. The Greek Ombudsman reported to the parliament that it was investigating more than 50 cases of rights violations by border management authorities against migrants and refugees with more than 10 000 victims [48] Greece, Ombudsman, statement before the Hellenic Parliament, May 2022.
. In Poland, since August 2021, the Ombudsman’s Office has made 425 interventions in cases of non-EU nationals summarily returned or at risk of being summarily returned to Belarus [49] Poland, Commissioner for Human Rights, phone consultation, October 2023.
. In Spain, the Ombudsman has taken different actions, particularly concerning Ceuta and Melilla [50] Spain, Defensor del Pueblo, communication, 14 October 2022.
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When they identify shortcomings, national human rights institutions may issue recommendations. National authorities hesitate to implement recommendations aimed at strengthening accountability at borders, according to the European Network of National Human Rights Institutions (ENNHRI) [51] ENNHRI, Strengthening Human Rights Accountability at Borders, Saint-Gilles, Belgium, 2022, pp. 4 and 22.
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When contacted, the Bulgarian Ombudsman noted the low implementation rate of its recommendations [52] Consultation with a representative of the Ombudsman conducted by email on 16 October 2023.
. The French National Consultative Commission on Human Rights (Commission nationale consultative des droits de l’homme, CNCDH) mentioned that the authorities oppose its’ recommendations relating to the situation at the border [53] CNCDH, phone interview, October 2023; this concerns in particular, CNCDH, ‘Opinion on the situation of exiled persons in Calais and Grande-Synthe’ (‘Avis sur la situation des personnes exilées à Calais et Grande-Synthe’), 11 February 2021; and CNCDH, ‘Opinion on the situation of migrants at the Franco-Italian border’ (‘Avis sur la situation des migrants à la frontière franco-italienne’), 19 June 2018.
. Similarly, the Ministry of Interior did not accept the Spanish Ombudsman’s recommendations issued after the death of at least 23 people trying to cross the border in Melilla [54] Spain, Defensor del Pueblo, ‘Recommendations regarding security forces in Melilla’ (‘Actuaciones y medidas de los Cuerpos y Fuerzas de Seguridad del Estado en Melilla’), 14 October 2022; and Defensor del Pueblo, 2023 Annual Report (Informe anual 2023), Madrid, 2024, p. 172.
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Since its creation in 2004, Frontex operational activities in Member States have gained increasing importance. The agency is deploying more and more officers to the field to support Member States in border management. With its standing corps, Frontex has a uniformed service that will include up to 10 000 people by 2027 [55] See Frontex, ‘Standing corps’, last accessed: 2 May 2024. .

This development required fundamental rights protection mechanisms. Two internal Frontex procedures may lead to investigations of reported fundamental rights incidents.

First, under Article 111 of the European border and coast guard regulation [56] The complaints mechanisms was first established by Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p. 1), and further developed by Regulation (EU) 2019/1896of 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),Article 111 (European border and coast guard regulation). , 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. The Frontex fundamental rights officer handles such complaints. As shown in Figure 2, between 2016 and 2023, Frontex received 229 complaints, 42 of which were admissible.

Figure 2: Individual complaints of fundamental rights violations submitted to Frontex, 2016–2023

 

A graph with numbers and a number of people

Description automatically generated with medium confidence

 

Notes: The number of complaints also includes a few alleged rights violations during returns.

Alternative text: Bar chart showing that between 2016 and 2023 the total number of complaints of fundamental rights violations increased but the number of admissible complaints did not.

Source: Frontex Fundamental Rights Office, May 2024.

Figure 2 shows that, although the number of complaints has increased over the years, only a few have been found to be admissible. In 2023, there were three admissible complaints: one from Bulgaria, one from Greece and one from Lithuania. They alleged violations of the right to life, the prohibition of torture, inhuman or degrading treatment, protection from refoulement and the right to property [57] Frontex, The Fundamental Rights Officer – Annual report 2023, July 2024, p.29. . Many complaints are inadmissible for Frontex as they relate to Member State authorities’ or other actors’ actions and not to the conduct of personnel involved in Frontex operational activities.

For victims of rights violations at borders, submitting a complaint to Frontex may not be particularly attractive. There is limited remedy for the victim, as the main purpose of the complaint is to remove or sanction personnel who committed wrongdoings.

Second, every participant in Frontex operational activities needs to immediately report any situation of potential violation of fundamental rights, through a ‘serious incident report’ [58] For a short overview, see Frontex, ‘Fundamental rights at Frontex’. The serious incident reporting is based on the requirement set out in Article 38(3)(h) of Regulation (EU) 2019/1896. Fundamental rights violations are one of four categories of serious incidents that must be reported. . Within Frontex, the fundamental rights officer reviews those serious incident reports that concern potential violations of fundamental rights. From 2019 to 2023, they concluded 206 serious incident reports (Figure 3).

Figure 3: Frontex serious incident reports on fundamental rights, 2018–2023

 

A graph with blue bars

Description automatically generated with medium confidence

 

Alternative text: Bar chart showing that, in 2019 and 2020, nine serious incidents were reported to Frontex while, in 2021, 61 incidents were reported; in 2022, 72 incidents were reported; and, in 2023, 55 incidents were reported.

Source: Frontex, The Fundamental Rights Officer – Annual report 2023, July 2024, p. 25.

In 2023, most serious incident reports concerned Greece (23 cases), followed by Bulgaria (11 cases) [59] Frontex, The Fundamental Rights Officer – Annual report 2023, July 2024, p. 26. . Several of these cases triggered investigations at the national level. None of them led to a conviction, although some cases are pending.

Sometimes, more than one authority is investigating a case. As an illustration, the Hellenic Police, the responsible Greek court, the Greek Ombudsman and the National Transparency Authority dealt with the case of a summary expulsion from Greece to Türkiye of a Frontex cultural mediator that took place in September 2021. The Greek Ombudsman found sufficient evidence to substantiate the accusations. It concluded that there were serious omissions by the police to investigate the incident as soon as they received a serious incident report from Frontex. The Greek Ombudsman forwarded these findings to the Hellenic Police and to the competent Public Prosecutor [60] For the investigation by the Greek Ombudsman, see ‘2022 special report of the national mechanism for the investigation of arbitrary incidents’ (‘Δελτίο Τύπου | Έκθεση 2022: Εθνικός Μηχανισμός Διερεύνησης Περιστατικών Αυθαιρεσίας’), pp. 18 and 33; and ‘Third party intervention by the Greek Ombudsman to the European Court of Human Rights in relation to applications Nos 15067/21 (G. R. J. v Greece) and 15783/21 (A. E. v Greece)’ (‘Δελτίο Τύπου | Παρέμβαση τρίτου του Συνηγόρου του Πολίτη κατόπιν πρόσκλησης του ΕΔΔΑ για το ζήτημα των επαναπροωθήσεων’), 26 March 2024. Information regarding the action by the National Transparency Authority was provided to FRA by the Greek authorities on 7 June 2024. . The National Transparency Authority also submitted its findings to the First Instance Prosecutor’s Office in December 2022. FRA is not aware of the content of their findings.

The limited information that Frontex receives from responsible national bodies allows only a partial examination of the cases. For example, in two high-visibility shipwreck cases, the fundamental rights officer had to issue his findings without being provided with details that he deemed sufficient to understand how the cases were handled at the national level [61]  The results of these investigations are available at Frontex, Frontex Incident Reports Cutro, Pylos, Warsaw, 2024. .

  1. On 26 February 2023, a shipwreck near Cutro (Italy) resulted in 98 dead and missing people. The day before, a Frontex surveillance aircraft had spotted the vessel – which was not yet in distress – and communicated the sighting to the responsible Italian authorities. The investigations concluded that Frontex had correctly alerted the Italian authorities, but suggested improvements to Frontex’s processing and sharing of information on sightings with national authorities. This would enable a more informed assessment of the risk of an apparently non-dangerous situation escalating into an emergency.
  2. The second incident occurred on the night of 13–14 June 2023. Some 600 people died or went missing when an unseaworthy boat that had departed from Libya capsized off the Peloponnese coast (Greece). The Adriana shipwreck was one of the deadliest incidents ever in the Mediterranean Sea. The investigation concluded that Frontex followed applicable procedures, but suggested that, in future, it should review its methodology and assess such cases more thoroughly against the need to issue a Mayday alert.

On the shipwreck case off the Greek coast, FRA issued a report in which it proposed to explore new avenues for investigating maritime shipwreck incidents. FRA referred to the principles concerning maritime safety investigations developed in the context of maritime transport activities as laid out in Directive 2009/18/EC. It proposed applying these principles also to shipwreck incidents occurring in the context of border management [62] FRA, Preventing and Responding to Deaths at Sea – What the European Union can do, Vienna, 2023. See also Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council (OJ L 131, 28.5.2009, p. 114). .

The ECtHR continues to play an important role in upholding human rights at borders. When domestic remedies are not effective or have been exhausted without tangible results, lawyers file cases with the ECtHR.

On 1 January 2024, over 30 communicated cases entailing alleged ill-treatment at the EU’s external borders were pending adjudication (see Annex). They concern eight Member States: Croatia, Cyprus, Greece, Hungary, Italy, Latvia, Lithuania and Poland.

Applicants in these cases allege violence and ill-treatment during apprehension and subsequent summary return by land to the neighbouring country, ill-treatment during summary expulsion at sea, delayed search and rescue, abandonment of people in forest areas at borders without access to basic amenities and/or exposing applicants to life-threatening situations. One case concerns a search-and-rescue event coordinated by Italy which led to abuses by Libyan coastguards.

Since November 2021, the ECtHR has issued five judgments in which it found that border guards’ or coastguards’ investigations into migrants’ rights violations were ineffective. They concerned allegations of violations of the right to life (Article 2 of the ECHR) and allegations of torture or inhuman or degrading treatment (Article 3 of the ECHR) during apprehension and subsequent summary return [63]
 See ECtHR, M. H. and Others v Croatia, Nos 15670/18 and 43115/18, 18 November 2021 (ineffective investigation into a child’s death after the Croatian police allegedly denied the opportunity to seek asylum and ordered the child return to Serbia via the train tracks); Safi and Others v Greece, No 5418/15, 7 July 2022 (no effective investigation into a shipwreck in the Eastern Aegean Sea); Alhowais v Hungary, No 59435/17, 2 February 2023 (a Syrian national who drowned during a border control operation at a river on the Hungarian–Serbian border and ineffective investigations into alleged police ill treatment (e.g. use of tear gas and police dogs)); Douaa Alkhatib and Others v Greece, No 3566/16, 16 January 2024 (ineffective investigations into the death of a Syrian who was hit by a bullet in 2015 during an anti-smuggling operation); Shahzad v Hungary (No. 2), No 37967/18, 5 October 2023 (the applicant was beaten while being escorted back to the external side of the Hungarian border fence with Serbia and there were ineffective investigations into the incident). On ineffective investigations see also the following deportation case: ECtHR, Thuo v Cyprus, No 3869/07, 4 April 2017 (ineffective investigations into the alleged ill treatment of the applicant during the deportation process).
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  1. In M. H. and Others v Croatia, the ECtHR found that the investigation into the death of a 6-year-old Afghan child had been ineffective. The child was hit by a train after the Croatian authorities allegedly denied the opportunity to seek asylum and ordered the child to return to Serbia via the tracks. The investigating authorities failed to look into the discrepancies between the police officers’ statements, did not inspect mobile telephones and the police car global positioning system (GPS) data, and refused to provide the applicants’ lawyer with information on the investigation. In addition, the applicants had been allowed to meet their lawyer only belatedly. The ECtHR found a violation of Article 2 (the right to life) of the ECHR as regards this investigation.
  2. In Alhowais v Hungary, the ECtHR found shortcomings in the investigation into the death of a Syrian national who drowned during a border control operation at a river on the Hungarian–Serbian border and allegations of police ill-treatment. The Court noted, inter alia, that not all witnesses were questioned. It also noted that the authorities did not try locating witnesses who had left Hungary and did not explore other options to resolve factual contradictions of the case. The ECtHR found that the deficiencies of the investigation led to a violation of the procedural aspects of Article 2 (the right to life) and of Article 3 (the prohibition of torture) of the ECHR.
  3. In Safi and Others v Greece, the ECtHR found serious deficiencies in the conduct of criminal investigations into a shipwreck that led to the death of 11 people. The shortcomings included problems with the interpretation. This resulted in errors in the record of statements and applicants lacking access to evidence (i.e. the coast guard’s recordings). The ECtHR found a violation of Article 2 (the right to life) of the ECHR, as the authorities had not carried out a thorough and effective investigation.
  4. In Douaa Alkhatib and Others v Greece, the ECtHR found numerous shortcomings in the national authorities’ investigation conducted into a shooting incident when intercepting a vessel transporting people illegally to Greece. Such shortcomings led to a loss of evidence and affected the adequacy of the investigation. The ECtHR found a violation of the procedural aspect of Article 2 (the right to life).
  5. In Shahzad v Hungary (No. 2), the ECtHR concluded that the Hungarian authorities had not effectively investigated the alleged ill-treatment of a migrant by Hungarian law enforcement officers. The incident took place while officers escorting him back to the external side of the Hungarian border fence with Serbia. The ECtHR found a violation of Article 3 (the prohibition of torture) of the ECHR.