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Serious Incident Report no. 12048/2022

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Joint operation

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Original source of information
FX SI Handler

Frontex resources involved

Use of force

Incident dates (UTC)

Location of the incident
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Reference to the operational area
Type of resources / involvement
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Information/ Allegations

 

2022-05-18 15:04
2022-08-03 14:38
Fundamental Rights Office
Closed

Processed

1 - Situations of potential violations of Fundamental Rights or international
protection obligations

JO FSC Aerial Surveillance 2022 - Potential threat to right to life and potential
inhuman or degrading treatment

FSC Aerial Surveillance 2022

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HoO.FRO

Yes

No

2022-05-12 09:40

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Maltese Search and Rescue area
Yes

Frontex Surveillance Aircraft: Eagle 1

On 12/05/2022 at 09:40 UTC, Eagle 1 spotted a blue wooden boat with 20+ Text Removed -
migrants on board (overcrowded) adrift at . Sensitive operational
(reference: FSA ). information

The sighting report further contained the information that Eagle1 had been

instructed by RCC Malta to contact the commercial vessel Ross Sea (approx. 30

NM away) and ask them to establish communication with RCC Malta. Ross Sea

reportedly acknowledged these instructions.

At 09:51 UTC, Eagle 1 reached bingo fuel and had to return to base.

Correspondence obtained by the Italian MRCC includes a message by NGO MV
Sea-Eye 4 declaring its intention to rescue the migrants with an estimated arrival

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Measures/Actions taken

Assessment

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on scene on 13/05/2022 at 08:00 local time. On 13/05/2022 at 15:26, Sea-Eye 4

tweeted pictures of the rescue of the migrants conducted in the dark. In its

tweets, Sea-Eye 4 further alleged to have been in contact with the EM of Personal data
Ross Sea citing them to have allegedly said “RCC Malta told me to keep on

monitoring. They asked me to just stay around and keep on monitoring from

distance.”

1. According to communication sent by the Italian coast guard, the Fundamental
Right Office learnt that reportedly already on 11/05/2022, at 17:58 UTC, they
had received a call from a migrant vıa satellite Pnone wno claımea to De On
board a wooden boat with another 23 persons inside the Libyan search and
rescue zone (EEE). 1: is not known to the Office when exactly the
boat entered the Maltese search and rescue zone. Correspondence from the

Italian coast guard further suggests that they received an updated location
Dee from the same migrants on 12/05/2022 at 15:17 UTC.

2. The Fundamental Rights Office understands from vessel tracking analysis that
Sca-Eyc-4 arrived from NE direction to location FOUR where
it slowed down and performed a sharp turn returning in direction NE on
13/05/2022 at 02:03 UTC. The Fundamental Rights Office identified this as a
possible moment when the rescue could have taken place.

3. The Fundamental Rights Office takes note of a Tweet by Alarm Phone on
12/05/2022 claiming that migrants had been at sea for 4 days and that they had
run out of drinking water and food. The further claimed that “winds were
getting stronger” (Frontex reported sea state 3 in sighting report). It further
notes that Sea-Eye 4 who rescued the migrants stated on twitter on 13/05/2022
that migrants had been 6 days on the water with many being hypothermic.

As regards, its communication with the Maltese authorities, The Fundamental
Rights Office takes note of the following statements:

1. Even though Eagle 1 sighted the boat adrift, it was only stationary for a short
period of time, as is common when aircrafts circle above such boats. The boat
thereafter proceeded with a speed of 5 Kts and was intercepted 90 miles north
of the sighted position after having covered 250 nautical miles.

2. SAR coordination is a state competence. Maltese authorities monitor all cases
in their search and rescue zone with cases evaluated and classified accordingly
by the competent search and rescue authority as per applicable SAR convention.
3. Maltese authorities exercise duty of care in all cases and note that no forceful
rescues can be conducted but that necessary measures will be taken to ensure
safety which depend on the circumstances of the case. Considerations also
include characteristics of the vessels on-site such as safety of crew, nature of
cargo and limits of manoeuvre.

4. Allegations of boats sinking, being left adrift or hindering rescue are false.

5. Finally, Maltese authorities consider that the Fundamental Rights Office or
Frontex do not have the right to demand feedback on issues that fall outside the
Agency’s mandate.

By launching a Serious Incident procedure, the Fundamental Rights Office
intends to clarify the facts regarding the rescue of the migrants sighted in the
Maltese search and rescue zone by Eagle 1 on 12/05/2022 at 09:40 UTC. The
Fundamental Rights Office took note of the notable period of time that elapsed
between the moment SOS messages were first received and when migrants were
eventually rescued as well as allegations in relation to failure to act.

Therefore, the Fundamental Rights Office intends to enquire including through
outreach to national authorities whether stakeholders involved have fulfilled
their obligation to conduct timely search and rescue within the limits of what
was feasible given the circumstances of this case.

Against the backdrop of information collected, the Fundamental Rights Office
concludes the following:

1. Given reported numbers of migrants (24) and photographic evidence published
by Sea-Eye 4 showing the same wooden boat, the Fundamental Rights Office
considers that rescued migrants are the same as the ones sighted by Frontex
a N The Office further concludes that, given the
photographs showing night-time and the timing of Frontex sighting and release

Final outcome

of said photos, the rescue took place in the night between 12/05/2022 -
13/05/2022.

2. Information provided by Maltese authorities and vessel tracking data are
consistent in suggesting that the migrants encountered Sea-Eye 4 north of the
place of Frontex sighting. The distance between the Frontex sighting location
and location of Sea-Eye 4 U-turn amounts to approximately 70 nautical miles in
NW direction whereas Maltese authorities have claimed that migrants were
rescued 90 miles northwards after having covered 250 nautical miles since the
beginning of their journey. Mission reports and briefings from the concerned
area and period, analysed as part of fact-finding, document wind and currents
mostly from N/NE/NW. Such weather conditions would have pushed the migrant
boat south. The Fundamental Rights Office therefore excludes the possibility
that the boat drifted all the way from the point of sighting to the point of
rescue. Instead, it can be concluded that the boat was, at least partially, mobile
moving to the point of eventual rescue, which is a finding in line with the
explanation provided by Maltese authorities.

3. The Fundamental Rights Office established that the migrants have been at sea
already on 11/05/2022, at 17:58 UTC, when they contacted the Italian MRCC,
i.e. more than two days prior to their eventual rescue. It is, at the same time,
not in a position to confirm the overall duration of the migrants’ journey at sea,
or their lack of water/food supplies as alleged by Alarm Phone. In general, the
Office considers that national authorities must factor in the conditions and
health of migrants when assessing the urgency of a case/level of distress in
addition to criteria pertaining to the sea-worthiness of the boat. The authorities
then must take immediate steps to coordinate and support rescue if there is a
risk of loss of life regardless the cause, in line with their obligations under the
SAR convention and other obligations related to the protection of EU
fundamental and international human rights principles.

4. The Fundamental Rights Office regrets that Maltese authorities did not
provide any detailed information on initial alert, their assessment and actions
taken with regard to the case of migrant boat or on timelines and locations.
While outreach by Maltese authorities to the Frontex Surveillance Aircraft and,
as alleged by Sea-Eye, their communication with the commercial vessel points to
a certain level of coordination, no further details on such activities were
obtained. The Maltese authorities did mention their dedication to ensuring
safety, including where rescue is not possible, but specifically, did not elaborate
further on the role of the commercial vessel Ross Sea, the instructions provided
to it, or possible coordination with surface assets available to support the SAR
operation including the NGO Sea-Eye 4 to ensure that the rescue was conducted
without undue delay.

In view of information collected, the Fundamental Rights Office finds that
migrants were rescued by Sea-Eye 4 in the night between 12/05/2022 -
13/05/2022 ten hours or more after sighted by Frontex, and two days after being
first located by the Italian MRCC. The Office concludes further that the boat was
not adrift, as reported initially, but at least partially mobile after it was first
detected by the Frontex Surveillance Aircraft.

At the same time, the Fundamental Rights Office was not in a position to assess
the conditions of the migrants or conclusively establish the overall duration of
their journey at sea. Therefore, the Office cannot comment in detail on the
urgency of the rescue. However, it would like to point out that in general,
national authorities should assess not only the condition of migrants’ vessel but
their health as much as possible, the time necessary to reach the migrant boat
by the entity conducting the rescue operation, information already available on
the time spent on water and any other factor indicating the need for a prompt
intervention to save lives.

Finally, the Office would consider in general that withholding assistance to a
boat that has been in water already for a considerable number of hours or days
not only puts the lives of migrants in danger but could amount to a case of
inhuman and/or degrading treatment and violation of human dignity.

Against this backdrop, the Fundamental Rights Office issues the following

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recommendations:

To Frontex:

1. To offer to Malta support in search and rescue operations coordinated by
Malta in the Central Mediterranean Sea including inside the Maltese Search and
Rescue region when the Agency is aware that loss of life and protection of other
Fundamental Rights are at stake;

2. To clearly communicate and sensitise national partners to the Serious Incident
Reporting framework applicable to all participants in Frontex activities including
explicitiy Frontex multipurpose aerıal surveillance activities, and national
authorities’ role in supporting related investigations by the Fundamental Rights
Office;

3. To engage in a dialogue on definitions of vessels in distress and criteria of
references to classify when a vessel requires prompt intervention to be rescued.

To Maltese Authorities:

1. To provide information in a transparent manner about search and rescue
operations based on or correlating with Frontex sightings, including in particular
in the context of a Serious Incident Procedure and enquiry by the Fundamental
Rights Office.

2. To request Frontex support inside its search and rescue zone whenever
necessary to save lives and when protection of other Fundamental Rights are at
stake.