Frontex: a public agency incapable of accountability

As the movement of people across the Mediterranean has become securitised, Frontex has come to the fore—not to good effect.

The shipwreck near Pylos last June, one of the greatest modern tragedies in Greek waters, claimed more than 600 lives. In its wake, criticism of the operation in Greece of the European Union’s border-security agency, Frontex, reached an all-time high. A recent inquiry by the EU ombudsman, Emily O’Reilly, into how Frontex acted in search-and-rescue operations criticised the agency for failing to take a ‘more active role’ and concluded that Frontex was ill-equipped to uphold the EU’s values.

In response, the director of Frontex, Hans Leijtens, claimed it was a search organisation tasked with securing borders, not a rescue organisation. This was supported by the Greek minister for migration, Dimitris Kairidis of the ruling conservative New Democracy party, who said the organisation should be further strengthened but not in the way suggested by O’Reilly—rather, ‘in the direction of guarding borders’.

‘Insufficient and inappropriate’

After the shipwreck, Frontex announced it would conduct its own investigation, in the form of a ‘serious incident report’ (SIR), to identify potential human-rights violations. The SIR was finalised at the beginning of December and revealed at the end of January by the journalist Eleonora Vasques. The report found that the Greek authorities had used ‘insufficient and inappropriate resources’ to rescue those aboard the Adriana, and had sought to do so only when it was ‘too late to rescue all the migrants’.

To probe how Frontex reports human-rights violations internally, I Have Rights, through a freedom-of-information request, asked the agency for every SIR from the islands of Samos and Lesvos (where it deploys coastal patrol teams) from September 2020 to September 2023. We received 38 SIRs but were told that two additional SIRs could not be made public as they were ‘subject to ongoing investigations’.

Frontex’s Fundamental Rights Office—its role to independently and ‘effectively monitor the agency’s compliance with fundamental rights’—investigates alleged rights violations. If the office concludes that there have been violations of a ‘serious nature or that are likely to persist’, under article 46 of Frontex’s regulation the agency’s operations in an EU member state can be suspended or even terminated. The effectiveness of the office is however conditioned by the member states, which decide where, when and how Frontex and its rights monitors operate.

According to Frontex’s operating procedures, an SIR should be compiled when a ‘serious incident’ has occurred, such as a violation of human rights or international law. The goal is to ‘increase the situation awareness’ of Frontex and an SIR can be spur follow-up measures.

This ‘situational awareness’ is how Frontex defends its operations and ever-increasing budget, which for 2021-27 rose to almost €11.3 billion. In 2022, Frontex spent €79 million on deportations but only €2.8 million on fundamental-rights operations. EU funding to Greece for policing, borders and asylum and integration meanwhile massively increased to just over €1.5 billion for the 2021-27 period.

Pushbacks from Greece

Out of the 38 SIRs released to I Have Rights, 32 (84 per cent) referred to incidents which involved people on the move attempting to reach Greece and 19 (50 per cent) used the term ‘pushback’. From the 19 pushback-related SIRs:

• 16 (84 per cent) could not make a definitive conclusion as to whether human rights had been violated during the incident, despite ten (52 per cent) emphasising that such allegations were ‘credible’ or ‘plausible’;
• ten (52 per cent) said Greek authorities did not record the incident, refused to share relevant information or were otherwise uncooperative;
• two (10 per cent) were able to ‘establish beyond doubt’ that Greek authorities, or ‘individuals acting in concert and coordination with the Greek authorities’, had conducted violent pushbacks and misreported facts which contributed to ‘hiding this reality’, and
• only one concluded that allegations of violence by Frontex officers were proven to be false.

While Frontex claims to be the ‘eyes and ears’ of Europe—with a vast budget to spend on surveillance drones and high-tech equipment to monitor what happens at Europe’s border—most of these Fundamental Rights Office SIRs were unable to reach conclusions about human-rights violations while consistently recording Greek authorities’ lack of co-operation. This raises questions about the strength of the office—especially since in a 2020 report on Frontex OLAF, the European Anti-Fraud Office, documented evidence which ‘indicated that the Agency would prefer not to witness such cases of alleged pushbacks’.

Of the two SIRs concluding it to be ‘beyond doubt’ that the Hellenic Coast Guard had conducted violent pushbacks, one investigated a highly publicised incident caught on video published by the New York Times, which showed men, women and children being transferred by masked men from an unmarked van on Lesvos into a Hellenic Coast Guard vessel. This report concluded that ‘operational reporting by the Greek authorities in this case cannot be relied on’, due to providing ‘misleading information about its patrolling’, and that ‘recordings have been subsequently deleted’.

The other SIR concluded that the incident was part of an ‘established pattern’ of pushbacks by the Hellenic Coast Guard. In it 17 people were pushed back and ill-treated by a group of masked men. Their belongings were stolen and they were ‘ultimately pushed back to Türkiye by the Greek officials and/or individuals acting in concert and coordination with them’. The SIR concluded that the ‘mechanism of deportation in the present SIR, as described by the migrants and supported by other evidence, is not unique or new’ and claimed that the Greek authorities had incorrectly reported the incident, as having ‘merely sighted’ the group.

Several SIRs suggest that Frontex officers followed Hellenic Coast Guard instructions not to report serious incidents. One said that ‘obligations were not fulfilled by Frontex officers who did not include the incident in their reports following respective instructions by Greek officials’. The latter also did not record the incident and omitted ‘the location of the detection inside Greek waters and Frontex involvement’.

Mandate not fulfilled

Frontex often argues that its presence at borders ensures human rights are upheld. Yet the majority of reports analysed here do not manifest enough evidence to support this and suggest that the Fundamental Rights Office is not fulfilling its mandate.

In his response to the EU ombudsman’s findings, Leijten claimed that Frontex was ‘heavily reliant’ on SIRs while simultaneously downplaying their significance: ‘It’s an incident report. It’s not something that has been proven. It’s a signal that arrived to us.’

But the signal they have received is not one that can be ignored. Their own investigations conclude that there is a clear ‘policy of pushbacks’ by Greek authorities, which should be enough to invoke article 46 and terminate their operations in Greece’s waters. The agency’s refusal to do so reflects the ineffectiveness of the Fundamental Rights Office in protecting human rights. Moreover, OLAF previously found two incidents witnessed by Frontex which had not led to appropriate action, including initiation of an SIR.

In 2021, the European Parliament Committee on Civil Liberties, Justice and Home Affairs, in its ‘Report on the fact-finding investigation on Frontex concerning alleged fundamental rights violations’, concluded that Frontex ‘generally disregarded’ reports of violations from human-rights organisations and ‘failed to adequately respond to internal observations about certain cases of probable fundamental rights violations in Member States which were raised by the FRO, the C[onsultative] F[orum of 13 transnational organisations and NGOs] or through incident report [sic]’.

Clear pattern

Three years on, Leijten’s comments suggest this may still be the case. The reports from the EU Ombudsman and OLAF, and Frontex’s own regulations, call for a termination of operations in member states where repeated violations occur. Leijten claims that to do so would need ‘some considerations and some justification’ and that Frontex has other options, such as asking the accused member state to implement ‘appropriate measures’ to prevent future violations.

Yet the 19 SIRs analysed referring to pushbacks reveal repeated calls for a review of the Hellenic Coast Guard rules of reporting, pointing to a clear pattern of authorities attempting to hide their involvement. In the two SIRs which established violations ‘beyond doubt’, the most the Fundamental Rights Office did however was to recommend the Greek authorities ‘adopt a firm policy and enforce firm sanctions against Hellenic officials found involved’.

These reports suggest, by Frontex’s own admission, that Greek authorities regularly carry out pushbacks in its operational zones and that the presence of the agency in Greece is unable to stop this clear violation of human rights. These internal investigations evidence the regular use of pushbacks in the Aegean and thus the requirement for Frontex to trigger article 46.

As the latest report by the EU ombudsman has shown, Frontex’s presence and awareness did not prevent the tragedy of the Pylos shipwreck. The director’s response—that rescuing people is not part of Frontex’s mandate—reveals the agency’s unwillingness to hold itself to account.