These Conclusions constitutes recommendations that are adopted in order to reinforce the Serious Incident mechanism related to fundamental rights. The investigations referred to herein are of an administrative nature, and do not replace or challenge criminal or disciplinary investigations conducted by national authorities. On the contrary, effective and independent investigations at national level are essential components, in addition or in follow up to Serious Incident investigations under the European Border and Coast Guard Regulation.
In order to ensure that the Serious Incident mechanism remains effective, is it essential that ongoing investigations at national level, are not delaying assessment of systemic issues of the type that is the subject of the national investigation.
These Conclusions also supports Member States and Schengen Associated Countries, as well as the Agency in their delivery on the European Commission Action Plan, specifically Issue 26:
“While the Fundamental Rights Officer (FRO) can investigate incidents that occur during operations where the Agency participates, fundamental rights violations committed by the staff of Member States can only be followed up on and eventually sanctioned by national authorities. There is a mixed experience in Member States as regards the effectiveness of the follow-up to the FRO’s reports and cooperation with the FRO.”
Action 26.1, “Review and, where necessary, strengthen the effectiveness and timeliness of the investigations of possible fundamental rights violations committed by the staff of the national authorities of Member States, including by developing clear and transparent procedures.”
Action 26.2, “Ensure that all operational plans stipulate clear procedures and timelines for cooperating with the FRO’s investigations both by the Agency and the authorities of the host Member State.”
(COM(2024) 75 final, 2 February 2024, Annex)
The Conclusions are also linked to the Technical and Operational Strategy for the European Integrated Border Management, specifically Action 13.3, ensuring that patterns emerging from Serious Incidents related to fundamental rights identified by Frontex’ Fundamental Rights Officer, is applied by the operational actors.
(Management Board Decision 30/2023, 20 September 2023)
The Conclusions also reinforce the commitments of Member States and Schengen Associated Countries in the Fundamental Rights Action Plan, specifically Action 19, “ensur[ing] professional conduct of all operational participants”.
(Management Board Decision 61/2021, 9 November 2021)
The Management Board notes that the Serious Incident mechanism is a crucial source of information for the monitoring of Frontex’ compliance with fundamental rights Through the Serious Incident procedure, the conditions and the facts regarding an event are clarified and measures are undertaken by Frontex to respond to the incident and its possible effects. In addition, the process aims at identifying lessons learned, enhancing the procedures and processes in place, and reducing the probability of an incident to reoccur including minimising risks of fundamental rights violations.
The Management Board acknowledges that given the nature of joint activities, most investigations into Serious Incidents rely on a collection of information from national authorities and other reliable stakeholders. A lack of cooperation on their end hampers the functioning of the Serious Incident mechanism.
Possible insufficient and delayed responses by national authorities are key obstacles to the proper investigations of Serious Incidents. In the conclusions of its 88th Meeting in January 2022, the Management Board had already requested national authorities to “actively and fully support the Fundamental Rights Officer as he conducts his investigations, in particular by providing – in a timely manner – all relevant information in response to his enquiries, noting that failure to do so could represent a reputational risk for the Agency”.
Based on the Fundamental Rights Officer’s regular reporting to the Management Board on the remaining concerns regarding the support and the provision of information by the national authorities, and with a view to the importance of authorities’ cooperation under the Serious Incident mechanism, the Management Board recommends the national authorities responsible for border and coast guard management as well as return to:
1. Raise awareness of the reporting channels of the Serious Incident mechanism in general and encourage reporting to Frontex’ Fundamental Rights Office by all participants in joint activities.
2. Share without delay with Frontex’ Fundamental Rights Office information about possible fundamental rights violations in Frontex activities collected from members of the Frontex Standing Corps during their deployment or upon their return.
3. Provide guidance and/or grant permission when approached by (former) members of the Frontex Standing Corps who consider reporting or otherwise cooperate with the Serious Incident mechanism. Facilitate prompt contact of Frontex’ Fundamental Rights Office with former members of the Frontex Standing Corps in cases where their testimonies are relevant to an ongoing investigation.
4. Ensure protection of those who in good faith report possible violations of fundamental rights against adverse consequences
5. Upon receipt of a Serious Incident Report, as soon as possible, identify official data, records and evidence in their possession that are relevant to the case and ensure their retention, in accordance with relevant national legislation, for the course of the investigation. Where no such records are identified, contact relevant national entities to collect evidence or verify that no evidence exists.
6. Cooperate in good faith and provide a timely and detailed reply to enquiries including all information, data, records and evidence relevant to a case under investigation related to the Agency’s activities, in keeping with national secrecy legislation. Specifically, the national authorities are recommended to provide the following:
a. Reply, whenever feasible, to each question listed in the enquiry separately to provide all information deemed relevant by the Fundamental Rights Office for its comprehensive investigation of the incident. In the spirit of good cooperation and transparency, the national authorities could share relevant information, such as related to information about national officials and/or assets of the host state for which national authorities are invited to indicate respective levels of sensitivity/classification.
b. Where no information is available and can therefore not be provided, elaborate on the reasons for the lack thereof.
c. Clearly distinguish between collected facts and assessments. Provide information on which basis conclusions mentioned in the reply were reached.
d. Revert to the Fundamental Rights Office within the indicated deadline with a reply or notification that an extension is needed explaining the reason and by when a reply can be tentatively expected.
f. Consider proactively updating the Fundamental Rights Office about new relevant developments and findings even after a reply has been sent.
7. Taking into account the conclusions and recommendations of the Final Serious Incident Report, assess the need for follow up. Member States will ensure proper, efficient, and independent follow-up, including disciplinary and criminal investigations, as appropriate. This relates to host states as well as sending states, in the case of, for instance, standing corps officers, category 2, 3 and 4.
8. Provide updates, proactively or on request by the Fundamental Rights Office, about any ongoing or completed national investigations/proceedings into closed Serious Incidents concerning incidents that took place within the framework of joint activities, or implementation of recommendations in the Final Serious Incident Report.
9. While respecting the role of the National Frontex Point of Contact, national authorities may appoint dedicated focal points or independent mechanisms for effective follow-up of Serious Incidents.