“The plane circled over our heads again and again, but no one helped us,” says Samuel Abraham. On 10 April 2021, he left the Libyan shore in a rubber boat with 62 other people. They were on the high seas for five days. “We didn’t think this trip would take so long. That’s why, and to save space, we didn’t bring much food and water.” Out of desperation, they drank sea water.
Last year, Samuel Abraham reported to us his attempted crossing and we published it with Buzzfeed News Germany. We changed his name to protect him.
He told us that, at one point, a cargo ship had appeared in sight and that three people had jumped into the water. They did not reach the ship, they drowned. On the last day at sea, the remaining people were picked up by a supposed fishing boat and taken back to Libya. Only 51 of them reached Libya alive, next to the dead bodies of the others who had died on the way back.
The plane Samuel Abraham saw circling over his head was operated by Frontex, the EU border and coast guard agency who witnessed what constituted a human rights violation. This was not only researched and documented by journalists and NGOs, but also by EU bodies.
In cooperation with Der Spiegel and Lighthouse Reports, we are publishing the report on Frontex by the EU’s anti-fraud agency OLAF. A report that has been talked about throughout the last year, that led to the resignation of former Frontex Executive Director Fabrice Leggeri, but until now has not been revealed to the public in full – it was never meant to be revealed.
Human rights violations swept under the carpet
In fact, up until today, only a very reduced group of EU officials have been able to read the document in full: this includes European Commission representatives, the former Frontex Management Board, a few selected Members of the European Parliament, and OLAF itself.
The Frontex OLAF report shows that Samuel Abraham’s story is not exceptional; a serious human rights violation witnessed and later brushed under the carpet. It is neither exceptional nor a matter of chance.
It was finalised in February 2022; 16 months, 20 witnesses and over 120 pages after the moment the EU anti-fraud watchdog first received a whistleblower alert by post warning about serious wrongdoing within the agency.
Under EU and international law, Frontex has the legal obligation to guarantee respect for human rights during its operations. But what OLAF found is that instead of taking steps to prevent human rights violations from happening, Frontex took recurrent, deliberate measures to make sure the violations that were indeed taking place, would not be witnessed, documented, investigated or accounted for.
More precisely, it shows how the Fundamental Rights Officer was sidelined; internal reports on human rights violations were manipulated; and how Frontex misled the European Commission and Parliament.
“Not one of us”: the isolation of the Frontex Fundamental Rights Officer
As the OLAF report shows, on 3 September 2020 Frontex’s main operational departments met to discuss the following: some officials had become convinced that the Greek-Turkish relationship was evolving into a “kind of ‘war’”, where Frontex’s operational information was subject to being “misused” and could therefore cause potential reputational damage to the agency.
The cornerstone of all this suspicion was the Frontex Fundamental Rights Office. This department had been created to ensure violations of human rights during Frontex operations were prevented by design. If violations do take place, it is the Office’s duty to conduct an investigation and recommend appropriate action.
This department and, in particular, its head, the Fundamental Rights Officer (FRO), had been encountering resistance internally. Labelled as “leftists” who were too close to NGOs, WhatsApp messages exchanged among Frontex officials qualified the FRO’s pro-rights stance as an “intellectual dictatorship” comparable to “Khmer Rouge terror”. Frontex staff was encouraged to consider their fundamental rights peers not as colleagues, but as “externals”; “not one of us”.
As such, Frontex’s leadership considered the information the FRO had access to needed to be limited – even in cases relating to a violation of human rights. At the 3 September 2020 meeting, this rationale was clearly set out: “Fundamental Rights has a right of access to all information. But it does not mean that we give all information. (...) Fundamental Rights asks and we try to be friendly. That’s the trap.”
The trap was an information shutdown which, in practice, would make it substantially harder and, in some cases, impossible, for the FRO to monitor and investigate the human rights violations that were, at this point, certainly taking place during Frontex operations. Efforts had started already in 2016, and were well underway by the time the 3 September 2020 meeting was held.
The OLAF report describes how already in 2016, e-mails from the FRO in which she required details and clarifications in the context of a potential human rights violation that had been reported “remained long unanswered or did not receive a reply at all.” In January 2018, Frontex leadership took the decision to severely restrict the FRO’s access to the agency’s main border surveillance and information-management tool, the EUROSUR system. This required a redesign of the EUROSUR architecture so that the FRO, from now on, would only be able to view a limited amount of operational information, while all classified information would not only be inaccessible, but also invisible: it became “impossible for FRO to be aware of the existence of that specific document in the system”.
The FRO’s EUROSUR cut-off would cost 15.000 euros of taxpayer money. The justification reflects how human rights monitoring was considered a danger to effective border control: “At stake is the possibility to use EUROSUR as a reliable security tool for MS [Member States] in full compliance with security standards”.
Shortly after, a new idea emerges: Frontex Serious Incident Reports should be considered classified information.
Control of the paper trail
Serious Incident Reports (SIRs) are at the heart of Frontex’s internal reporting system. These reports are meant to be filed by Frontex agents deployed on mission when they witness or become part of a serious incident. This could be, for example, when Frontex staff has a car accident while deployed; wakes up to their property having been vandalised with anti-police messages; exposed to Covid-19; and, most importantly, when Frontex officers witness or become involved in a human rights violation.
SIRs are the agency’s primary paper trail for wrongdoing. As such, the existence and distribution of these reports became uncomfortable for an agency that considers its human rights obligations an obstacle for its ultimate goal and mission: border control.
The OLAF report lays out the measures taken to undermine and circumvent SIRs as a reporting mechanism, in order to downplay or ignore severe human rights violations that were taking place to the knowledge of Frontex. In 2020, an essential step was taken in this direction: “In case a SIR is generated based on operational data collected by FRONTEX (…) this SIR must be restricted,” reads an internal e-mail. This could be done by scaling up the classification of SIRs. Internally, some officials warned the efforts to classify these reports “would be illegal”.
The process for handling SIRs was also manipulated. Frontex’s internal rules establish four categories of SIRs – incident reports relating to a possible violation of human rights should be allocated Category 4, which would immediately trigger an involvement of the FRO, investigation, and adequate follow-up.
On the day Samuel Abraham was in distress at high sea, Frontex staff wrote an internal e-mail stressing the need to launch a Serious Incident Report and asked for guidance about the categorisation. OLAF notes, that all information about the incident “highlighted strong indications of violations of human rights”, which would fall under Category 4. But internally this was waved off to avoid involving the FRO.
In other occasions, a decision was taken not to create a SIR in the first place; it appears that in Frontex’s eyes, a human rights violation that is not recorded is a violation that doesn’t exist.
Letters to Greek authorities with regards to serious rights violations were re-drafted into a “politically softer” version, “less explicit on the gravity of the facts in question”. In April 2020, a SIR was launched after Frontex-deployed officers witnessed Greek authorities “towing an overcrowded fragile boat in the night towards the open sea is a situation that can seriously endanger the lives of the passengers”. Der Spiegel reported about this case end of October 2020. The FRO’s evaluation of the case found it a likely “case of an unprocessed return and violation of the principle of non-refoulement”. However, during its investigation, OLAF found no further follow-up: “no formal request for information or clarification was sent to the Hellenic Authorities in relation to this incident”. Human rights violation, once again, left unaddressed.
Intimidation “bears fruit”: the silencing of officers
But not only incidents were silenced, also those who report them. In summer of 2019, an internal e-mail warned: “we fear/have indications that potential violations are not always reported to Frontex [headquarters] because of possible repercussions of deployed officers in the Host MS [Member State]”. There had been at least one case where an officer deployed in a Frontex operation had filed a SIR and had later been relocated; the assumption was that “it could be linked to the fact of reporting”.
Furthermore, Frontex-deployed officers were not making use of official reporting channels but were instead leaving mentions of what pointed to human rights violations in “unofficial reports”. When an officer was asked for the reason, (s)he argued that “it happened in the past that because of the initiation of a SIR the debriefing expert had serious conflict with the Greek Authorities and could that made [REDACTED] stay unbearable“. In order to avoid a similar situation, the officer had chosen to report incidents “via alternative channels”.
Intimidation and threats to Frontex officers, notably by Greek authorities, in order to avoid formal reporting of violations of human rights, were well known to Frontex management. The topic had been “thoroughly discussed” internally, recognising that “threats of EL [Greek] authorities to sanction ‘critical’ deployed staff bears fruit”.
However, no action was ever taken to address this problem or to prevent it from happening again. Out of “the need to keep a good relationship with the Greek authorities”, Frontex did “not ask for any specific action to be taken or checks to be done”. The matter was set aside.
“So not to witness…”
On 5 August 2020, the Frontex plane FSA METIS was surveilling the Aegean Sea when it witnessed a boat with approximately 30 people on board, in Greek territorial waters, being towed by Greek authorities towards Turkish territorial waters. The sighting amounted to a human rights violation. A Serious Incident Report was launched.
Within a month, the Frontex plane was no longer operating in the Aegean but had instead been relocated to the Central Mediterranean “to support activities in the region”.
Three months later, during a raid to the Frontex headquarters in Warsaw, OLAF finds a report mentioning the FSA METIS relocation. A handwritten note of a high representative on the last page of the document reads: “We have withdrawn our FSA some time ago, so not to witness...”.
In an interview with OLAF, (s)he would elaborate on his handwritten remark: “the withdrawing of aerial surveillance served the purpose for FRONTEX to avoid witnessing incidents and alleged pushbacks by Greece, so avoiding to have to deal internally at the Agency with sensitive cases. Personally, the solution was good for me as I was in the middle of two different and opposite demands: [REDACTED] wanted to cover possible irregularities by Greece and [REDACTED] [REDACTED] wanted to deal with those cases in full compliance with the SOP [Standard Operating Procedure]”.
Frontex’s choice was in fact much more effective than a cover-up of “irregularities”. It was a carte blanche for impunity.
Disloyalty to the Union
Internal control mechanisms disabled, there were few avenues left to hold Frontex accountable – mainly, EU institutions. When in 2020, media and civil society reports on Frontex became more and more frequent, the European Commission started seeking answers from the EU’s border agency. The Commission wanted to know whether progress had been made on several of the human rights protection mechanisms – as it is Frontex’s legal obligation.
OLAF found Frontex misled the Commission when responding to its questions, offering “a partial view of the dynamics of the events“ and showed “lack of cooperation and the reluctance” to implement the Commission’s recommendations. Cooperating and following the EU Commission’s guidance was indeed not in Frontex’s plans, since for some years now, Frontex leadership had been harvesting an increasingly derogatory view of the EU legislative body which it saw less as a respectable authority and more like an enemy.
Private messages exchanged among Frontex high-level reveal a view of the European Commission as “the legislator who makes Frontex a legal smuggler/taxi”.
Demeaning messages, which harden in tone from 2019 onwards following the appointment of Ylva Johansson as Commissioner for Home Affairs, criticised the EU institution for “amateurism on operational subjects, obsession on FR [Fundamental Rights] subjects, and bureaucratic cretinism”.
By 2020, the Commission had become an adversary: “Today the biggest risk for the European corps and Frontex comes from the Commission” – a striking conclusion since the proposal for a Frontex standing corps of 10,000 border guards initially originated, in 2018, from the European Commission itself.
But it wasn’t only the European Commission’s questions getting shunned – also the European Parliament’s. In multiple occasions, the European Parliament’s Committee on Civil Liberties, Justice and Homme Affairs (LIBE) summoned Frontex and requested explanations and clarifications with regards to the recurrent reports of human rights violations. During its investigation, OLAF identified at least eleven stances where Frontex lied or misled the European Parliament in its responses.
These lies, misleading statements and antagonistic views with respect to the European Commission and Parliament were found by OLAF as a “lack of loyalty towards the Union”.
Eight months later: the aftermath of the OLAF report
For almost eight months, some EU representatives have known about the explosive facts and findings of the report: the recurrent human rights violations taking place under Frontex’s eyes; Frontex’s studied efforts to brush off and conceal these violations; an unlawful system of impunity built by an agency of the EU, financed with EU taxpayer money.
And yet the fact is, very little has changed in the aftermath of the OLAF investigation. Only the resignation of one person, former Frontex Executive Director Fabrice Leggeri, is the most visible consequence of the report’s findings to date, besides the fact that the European Parliament continues to refuse to approve the agency’s budget. A climate of silence and inaction seems to have been established, incomprehensibly to anyone familiar with the content of the OLAF report.
In this context, on 21 September, Frontex issued a statement announcing “recent changes within the agency”, presenting in six vague bullet points. But the reality seems to be different: Crucially, a noticeable absence from Frontex’s “recent changes” press release is the suspension of operations in the Aegean. This is a provision set by Article 46 of the Frontex Regulation, which states that the Frontex Executive Director should “suspend or terminate any activity by the Agency, in whole or in part, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist.”
These violations have been well-established by the OLAF report, which includes among its findings that, while being aware of the human rights violations taking place in Greece, Frontex “did not ensure appropriate follow-up, including taking any actions in relation to the scope of the Article 46 of the FRONTEX Regulation”. And yet Frontex continues to contradict OLAF’s findings, reiterating in the media that “Frontex’s actions in the Aegean Sea region had been carried out in compliance with the applicable legal framework, including in accordance with the responsibilities stemming from fundamental rights.”
At the same time, some signs already point at some of Frontex’s “recent changes” which could be failing to materialise. Frontex argues that in 2021 it conducted a revision of its Serious Incident Reporting Mechanism “to improve the reporting on events at the external borders, including fundamental rights violations”. However, civil society has alerted to the fact that it has been over 1,000 days since Frontex last filed a SIR in the Greek island of Samos. It was precisely in Samos, as documented in the OLAF report, where Greek authorities’ intimidation tactics to discourage incident reporting had been bearing fruit.
We have asked Frontex for a statement concerning the OLAF report and its investigations, but they have not replied to it yet.
Commission remains inactive
Meanwhile, the European Commission’s reluctance to take a stance, let alone any action, in response to the OLAF report has been remarkable. When questioned about Der Spiegel’s previous reporting on OLAF’s findings, the Commission merely made vague references to the one change in Frontex leadership, a “new Action Plan” for a Fundamental Rights Strategy, and the hiring of Fundamental Rights Monitors – which has been a legal obligation of Frontex since 2019. “A lot of work is being done,” stated the Commission spokesperson, who did not deliver specifics and made no mention of Article 46.
In all, the OLAF report reveals the making of a system of impunity by Frontex: continuous efforts to downplay, conceal and enable serious violations of human rights and international law taking place on an ongoing basis at the EU’s borders. Despite OLAF’s investigation, Frontex’s system of impunity remains largely untouched.
The Frontex OLAF report was kept strictly confidential for eight months until it was leaked to FragDenStaat, Der Spiegel and Lighthouse Reports. The document we are publishing today is a word-by-word transcription of the original in order to protect the source. The document has also been designed and formatted in order to replicate the original version, although redactions appear different in length in the original leak.
Our work is financed by donations. If you want to support us, please donate.
Directorate A – Expenditure – Operations and Investigations Unit A1 – Internal Investigations Brussels Olaf.03(2021)21088 1 SENSITIVE: OLAF Investigations FINAL REPORT CASE No OC/2021/0451/A1 Type of Case Investigation Legal Basis for the opening decision Article 4 of Regulation (EU, Euratom) No 883/2013 combined with Article 2 of the Commission Decision 1999/352 OLAF Staff ████████ Date of creation of OLAF case 30 April 2021 Date of opening decision 3 May 2021 (the case OC/2021/0451/A1 was opened as a split of the initial case OC/2020/0866/A1, the opening date of which is 11 November 2020) EU institution, body, office or agency European Border and Coast Guard Agency concerned (FRONTEX) Person(s) concerned Natural persons: ████████ ████████ ████████ Source of information ████████ Fraud Notification System (FNS) [X] Yes [ ] No Offence category Serious misbehavior Area concerned EU Decentralised Agencies Investigative or Coordination activities Collection and analysis of information from carried out open sources 1 Handling instructions for SENSITIVE are given at ec.europa.eu/anti-fraud/sites/antifraud/files/handling_instructions_documents_sensitive_olaf_Investiga tions-en.pdf
Inspection of FRONTEX premises Digital Forensic Operations and Operational Analysis of digital data Interview of 20 witnesses Has he person concerned been notified of Notified on: the opening of an investigation? Reason(s) for deferral? ████████ Deferred on: N/A Has the person concerned been given the Given opportunity to comment: all persons opportunity to comment on facts concerning concerned were given the opportunity to him? Reason(s) for deferral? comment on 4 October 2021 Deferred on: N/A Evidence of irregularity or fraud [X] Yes [ ] No Financial and other impact Impact on EU financial interests [ ] Yes [X] No Serious matters relating to discharge of [X] Yes professional duties [ ] No Estimated financial impact of the facts N/A established Amounts prevented from being unduly N/A spent/evaded Judicial proceedings [ ] Yes [X] No Summary On 8 October 2020, OLAF received information by post from ████████ referring to possible irregularities affecting the European Border and Coast Guard Agency (FRONTEX). The initial allegations, complemented with additional information provided by the source, referred to serious irregularities involving ████████ top managers of FRONTEX. These irregularities included: Possible witnessing of illegal pushbacks by FRONTEX-deployed assets (Multipurpose Aerial Surveillance – MAS); Exclusion of the Fundamental Rights Officer (FRO) of FRONTEX from the reporting line; Intimidation, humiliation and harassment of staff members; Obsessive micromanagement and exclusion of intermediary reporting lines;
Possible conflict of interest in recruitment procedures; Possible irregularities affecting procurement contracts. Some of the allegations, notably those referring to FRONTEX covering or being involved in illegal pushbacks of migrants, received wide coverage during 2020 through online media outlets. Taking into account the allegations received, on 11 November 2020 OLAF opened the internal investigation OC/2020/0866/A1 into: A. potential misconduct and/or irregularities related to FRONTEX, possible involvement in and/or cover up of illegal pushbacks committed by ████████, and B. potential misconduct and/or irregularities in the internal functioning and management of FRONTEX committed by ████████, ████████ Having made significant progress with regard to the allegations under point A above, on 3 May 2021 OLAF decided to split the case, in order to expedite matters, and to extend the scope to be able to also investigate additional persons. As a result, case OC/2021/0451/A1 was opened; the scope of the new case was to investigate potential misconduct and/or irregularities related to FRONTEX in relation to possible involvement in and/or cover-up of illegal pushbacks committed, in particular, by ████████. ████████ were identified as persons concerned in case OC/2021/0451/A1. In order to prove or disprove the allegations, OLAF collected and analysed information and documentation from FRONTEX, from the European Commission, from open sources and from the persons concerned. Between 8 and 11 December 2020, OLAF carried out an inspection of the offices of the ████████ persons concerned, together with digital forensic operations. Subsequently, OLAF conducted the operational analysis of the significant amount of digital data acquired. In addition to the interview of the ████████ persons concerned and of 20 witnesses, OLAF also collected information from 10 witnesses through questionnaires. OLAF concludes, based on the evidence collected during the investigation, that the allegations are proven. ████████ within their differing roles and responsibilities, committed serious misconduct and other irregularities. In doing so they hindered the capacity of FRONTEX to fully comply with its responsibilities, namely monitoring compliance with fundamental rights in its activities at the external borders, and ensuring respect for, protection and promotion of, fundamental rights, as enshrined in particular in the Charter of Fundamental Rights of the EU. The evidence collected and the facts established by OLAF are set out in Section 2 of this report. The failings of the persons concerned can be grouped into three main categories; failure to follow procedures and processes, failure in their duty of loyalty and failure in their managerial responsibilities. Section 2.2.1 of this report demonstrates how ████████ failed to ensure compliance with the applicable Standard Operating Procedures on Serious Incident Reporting. This led to the exclusion of the FRO from the assessment and handling of some incidents and to the failure to initiate Serious Incident Reports for some incidents with a potential fundamental rights component. Section 2.2.1 also demonstrates how the ████████ persons concerned decided to relocate a FRONTEX aerial asset to a different operational area of activity. One reason for doing so appears to have been to avoid witnessing incidents in the Aegean Sea with a potential FR component. Section 2.2.2 demonstrates how ████████ the latter conveying the instructions
████████ received, acted directly or instructed FRONTEX entities to act in a way which resulted in a severe limitation of the access by the FRO, the Associate FRO and the FRO ad interim to information available within the Agency, including in the EUROSUR system. This had a negative impact on the ability of the FRO’s Office to effectively perform its tasks, notably monitoring the Agency’s compliance with, and promoting the Agency’s respect of, fundamental rights. Sections 2.2.1, 2.2.9 and 2.2.5 demonstrate that ████████ did not ensure appropriate follow-up actions, including with regard to the application of the Article 46 of the 2019 FRONTEX Regulation, in relation to two incidents witnessed by FRONTEX ████████. ████████ failed to take appropriate action, including the initiation of a SIR, after having been informed that some FRONTEX co-financed assets appeared to have been involved in some incidents included in the digital material that FRONTEX received from the Turkish Authorities. ████████ failed to take appropriate action informed (on three different occasions) that FRONTEX-deployed officers might have preferred not to report officially some incidents that occurred under FRONTEX operations due to fears of repercussions from the Authorities of the host MS. Section 2.2.3 demonstrates that as a result of concerns that some members of the Management Board (MB), including its Chair, might have tried to protect the FRO (to the point that ████████ alleged the existence of a conflict of interest situation, including “political” conflict of interest, involving some of the members of the MB) ████████ and ████████ instructed the relevant FRONTEX entitles to publish, under strict confidentiality, the vacancy notices for the FRO and Deputy FRO posts (among others), without the prior involvement of the MB (for the FRO post) or the FRO (for the Deputy FRO post). ████████ also appears to have acted in this way so that the matter could be settled in advance of the appointment of the new ████████ Commissioner, whom ████████ considered to be too supportive of fundamental rights issues. Section 2.2.4 demonstrates how, in the framework of an administrative inquiry against ████████, ████████ overruled the applicable Decision of the Management Board of FRONTEX, attributing to the DED the responsibility to launch the administrative inquiry. ████████ did not ensure compliance with the EU administration standards in relation to the reasonable duration of the inquiry, as set in the European Code of Good Administrative Behaviour (mirrored in the FRONTEX Code of Conduct). ████████ also disclosed to persons with no direct need-to-know some details about the allegations ████████ (████████ being the subject of the inquiry) and about allegations against ████████ which had not been formalized officially. ████████ also provided misleading information to some members of ████████ Cabinet about the conclusions of the administrative inquiry against ████████. The evidence in Section 2.2.7 shows that, animated as they were by their personal considerations regarding European legislators, ████████ and ████████ demonstrated a lack of loyalty towards the Union. They partly based their decisions on their personal prejudices and the low esteem in which they held the European Commission (EC), particularly some officials of ████████. They considered the latter to be overly focused on fundamental rights matters and too bureaucratic, with no understanding of the operational challenges of external border management. ████████ also failed to demonstrate a constructive approach with the EC regarding the implementation of the new legal framework of the Agency, in particular regarding the fundamental rights architecture, thus causing severe delays to the whole process. In this context, despite ████████ role as ████████ of Frontex, ████████ also suggested to a member of the MB which issues to raise during a MB meeting so as to put the EC representative at the MB in a difficult position. The evidence gathered by OLAF in Section 2.2.8 demonstrates that between 2017 and 2019, ████████ disclosed information to ████████, some of it delicate or sensitive, concerning the Agency under ████████ management, prior to it being made public. There was no justification for this as ████████ did not have a legitimate need-to-know. While requesting information about some incidents from the Authorities of a host Member
State, as well as while providing to EU Institutions (the EC and the EP) information about the way the Agency had dealt with fundamental rights-related matters, ████████ did not ensure the highest standards of impartiality and objectivity, presenting an incorrect or biased description of facts. The evidence is set out in Section 2.2.7 of this report. ████████ also gave OLAF incorrect information about the process of the revision of the Standard Operating Procedure on Serious Incidents Reporting. The evidence is set out in Section 2.2.6 of this report. During a meeting with the members of the FRaLO Subworking Group, ████████ provided incorrect information about the involvement of the FRO in the handling of a Serious Incident Report. OLAF did not gather elements indicating the intentionality of such provision (see Section 2.2.1). OLAF considers the repeated misconduct of the persons concerned to be in breach of the Staff Regulation of Officials of the EU, of the FRONTEX Code of Conduct and of the legal framework stipulated by the FRONTEX Regulations (Regulation (EU) 2016/1624 and Regulation (EU) 2019/1896) in particular in relation to the protection and respect of fundamental rights, as enshrined in the Charter of Fundamental Rights of the European Union, in the performance of the Agency’s task. TABLE OF CONTENTS List of acronyms........................................................................................................................ 5 1. Background information........................................................................................................ 9 1.1 Initial information............................................................................................................. 9 1.2 Scope of the investigation............................................................................................. 11 1.3 Persons concerned....................................................................................................... 12 1.4 Issues investigated........................................................................................................ 12 1.5 General context............................................................................................................. 12 2. Investigative activities carried out and evidence collected................................................. 17 2.1 Investigative activities carried out.................................................................................. 17 2.2 Evidence collected........................................................................................................ 17 2.3 Facts established........................................................................................................ 109 3. Legal evaluation................................................................................................................ 112 3.1 Legal framework.......................................................................................................... 113 3.2Legal assessment........................................................................................................ 124 4. Estimated financial impact of the facts established.......................................................... 128 5. Comments of the persons concerned............................................................................... 129 6. Conclusions...................................................................................................................... 129 List of acronyms ASM Assessment Sector of the RAU BMD Business Management and Development
Office of the SAM Division CAB Cabinet CBD Capacity Building Division CCC Command and Control Centre Sector of the FSC CF Consultative Forum of FRONTEX CGO Corporate and Governance Division of FRONTEX CoE Council of Europe CONT Members of the Budgetary Control Committee of the European Parliament CPT European Committee for Prevention of Torture and Inhuman or Degrading Treatment or Punishment DCBD Director of the Capacity Building Division DCGO Director of Corporate and Governance Division DED Deputy Executive Director DG Home Directorate General for Migration and Home Affairs of the European Commission DORD Director of Operational Response Division DPO Data Protection Office DSAM Director of Situational Awareness and Monitoring Division EC European Commission ECA European Court of Auditors ECHR European Convention on Human Rights ECtHR European Court of Human Rights ED Executive Director EO European Ombudsman EP European Parliament EUCI EU Classified Information EUROSUR European Border Surveillance System FDU Field Deployment Unit FLO FRONTEX Liaison Officer FR Fundamental Rights FRAU Fundamental Rights Agency FRMs Fundamental Rights Monitors
FRO Fundamental Rights Officer FRONTEX European Border and Coast Guard Agency FSA FRONTEX Surveillance Aircraft FSC Frontex Situation Center FSWG European Parliament’s FRONTEX Scrutiny Working Group GSC Governance Support Centre Division GTW Greek Territorial Waters HCG Hellenic Coast Guard HoASM Head of Assessment Sector HoCAB Head of Cabinet HoCCC Head of Command and Control Centre Sector HoFDU Head of Field Deployment Unit HoFSC Head of Frontex Situation Center HoHRS Head of Human Resources and Security Unit HoHUB Head of Monitoring Hub Sector HoICO Head of ICO HoICT Head of Information and Communcation Technology Unit HoLEG Head of Legal Services Sector HoLPU Head of Legal and Procurement Unit HoOIS Head of Operational Implementation Sector HoOPA Head of Operational Analysis Sector HoRAU Head of Risk Analysis Unit HoSEC Head of Security Sector HoVAU Head of Vulnerability Assessment Unit HRS Human Resources and Security Unit HUB Monitoring Hub Sector of the FSC ICC International Coordination Centre ICO Inspection and Control Office ICT Information and Communication Technology Unit of the CGO Division IFC Information Fusion Centre of the SAM Division IOM International Organization for Migration JO Joint Operation
JORA FRONTEX Joint Operations Reporting Application LEG Legal Services Sector of the LPU LIEBE Committee on Civil Liberties, Justice and Home Affairs of the European Parliament LPU Legal and Procurement Unit MAS Multipurpose Aerial Surveillance MB Management Board MEP Member of the European Parliament ODSO Operational Division Support Office of the ORD Division OIS Operational Implementation Sector of the FDU OLAF European Anti-Fraud Office OPA Operational Analysis Sector of the RAU ORD Operational Response Division of FRONTEX RAU Risk Analysis Unit RBI Rapid Border Intervention RIB Rigid Inflatable Boat SAM Situational Awareness and Monitoring Division of FRONTEX SAR Search and Rescue SEC Security Sector of the HRS SI Serious Incident SIR Serious Incident Report SOP Standard Operating Procedure SRR Search and Rescue Region TTW Turkish Territorial Waters UNCLOS United Nations Convention on the Law of the Sea UNHCR United Nations High Committee for Refugees VAI Vulnerability Assessment Unit WG FRaLO Working Group of Fundamental Rights and Legal and Operational aspects of FRONTEX operations
1. Background information 1.1 Initial information On 8 October 2020, OLAF received via post information from ████████ referring to possible irregularities affecting the European Border and Coast Guard Agency (FRONTEX). The same information was also sent via email to the EC (Commissioner ████████) and forwarded to OLAF by the Directorate ████████ on 3 November 2020. The content of the information suggested the source was ████████. OLAF got successfully in contact via email with the source who provided additional information to complement the initial allegations of serious irregularities, involving ████████ of FRONTEX, including: Possible witnessing by FRONTEX-deployed assets (Multipurpose Aerial Surveillance – MAS) of illegal pushbacks involving the Hellenic Coast Guard (HCG). Following the incidents, FRONTEX staff deployed on the plane would have been explicitly ordered by ████████ and ████████ the reporting line in order to “avoid politicization of such events”. ████████ appeared to have been fully informed; Intimidation and harassment of the staff members by ████████, who would effectively manage FRONTEX, excluding ████████ would harass, humiliate and intimidate personnel, forcing them to circumvent the rules in ████████ interest. Many staff members were reported to have asked to be transferred internally or trying to leave FRONTEX; Obsessive micromanagement by ████████, where reporting lines are completely omitted, with ████████ in charge of taking all decision thus paralyzing the work and affecting the efficiency and effectiveness of the Agency; Possible conflict of interest in recruitment procedures involving ████████; Significant over representation of ████████ among the senior position posts at FRONTEX following the appointment of the ████████ (also a ████████); Possible irregularities affecting contracts, whose terms of reference (TORs) would have been arbitrarily changed by ████████ even after the projects had been finalized, thus causing delays in payment of contractors. Some of the allegations, in particular those referring to FRONTEX covering or being involved in illegal pushbacks of migrants, received wide coverage, with articles being published during 2020 on several online media outlets (EU Observer, Bellingcat, De Spiegel, Respond, and others). On 4 November 2020, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) of the European Parliament (EP) addressed a letter to ████████ of FRONTEX referring to the press releases which had mentioned the alleged implication of FRONTEX in illegal pushbacks in Greece. The letter by LIBE raised a number of questions and asked FRONTEX for clarifications on the matter. On 25 February 2021, OLAF received a letter from the Ambassador of the Permanent Delegation of ████████ to the EU expressing, among others, concerns about the protection of migrants and asylum seekers at EU borders, possible push-backs including severe human rights violations by Greek Authorities at Greek borders. The letter enclosed a portable device containing digital data. The same letter (and annexed digital data) was also addressed by the ████████ authorities to FRONTEX’s ████████ On 4 March 2021, ████████ forwarded to OLAF the letter FRONTEX had received form the ████████ Authorities. On 1 March 2021, the WG FRaLO released to the MB the final report of its inquiry. Overall, the working Group assessed 13 incidents. 8 incidents, out of 13, were clarified to the effect
that no third-country nationals were turned back in contravention of the principles of non- refoulement, or otherwise in violation of Article 80(2) of Regulation (EU) 2019/1896. For the other 5 cases (plus an additional one) the WG stressed that it has not been possible to completely resolve the incidents beyond any reasonable doubt. The WG FRaLO also made recommendations to the Agency. On 5 March 2021, the MB released publicly its conclusions on the final report of the WG FRaLO and issued recommendations to the Agency to revise its reporting system, to establish a systematic monitoring of the reporting mechanism and to clarify the relation between its system of protection of the whistle-blowers and the exceptional reporting mechanism under the SIRs reporting mechanism. On 23 March 2021, Members of the Budgetary Control Committee (CONT) of the EP decided to postpone the final decision on the discharge of the 2019 budget of FRONTEX, expecting clarifications of alleged cases of complicity of the Agency in fundamental rights violations concerning its involvement in migrants’ pushbacks. On 19 May 2021, ████████ sent a letter to the LIBE’s FSWG to reply to a number of questions the FSWG had presented to the Agency. On 25 May 2021, the Director-General of DG HOME sent a letter to the Chair of LIBE’s FSWG providing, in relation to FRONTEX, explanatory timelines on the development of the implementing frameworks concerning: the fundamental rights monitoring framework, the new administrative structure and the Standing Corps. On 7 June 2021, the European Court of Auditors (ECA) released its report on the effectiveness of FRONTEX’s support to external border management. The ECA concluded that "Frontex has not fully implemented its 2016 mandate and (…) that there is a significant risk that Frontex will struggle to carry out the mandate assigned to it by the Regulation (EU) 2019/1896". On 15 June 2021, the EO published its "Decision n. OI/5/2020/MHZ on the functioning of the European Border and Coast Guard Agency's (Frontex) complaints mechanism for alleged breaches of fundamental rights and the role of the Fundamental Rights". The European Ombudsman concluded that it "(...) considers it regrettable that there has been delay by FRONTEX in implementing the important changes introduced by Regulation 2019/1896. However, since the situation is in the process of being resolved, the Ombudsman does not find it justified to pursue this matter further". On 14 July 2021, the LIBE's FSWG released its Working Document on Report on the fact- finding investigation on FRONTEX concerning alleged violations of fundamental rights. In its report, among others, the FSWG concluded that: - several reliable actors, such as national and international human rights bodies and organisations, consistently reported about fundamental rights violations at the border in a number of Member States, but FRONTEX generally disregarded these reports; - the Agency 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 Consultative Forum (CF) or through incident report; - the FSWG did not find conclusive evidence on the direct performance of pushbacks and/or collective expulsions by FRONTEX in the serious incident cases examined; - the Agency found evidence in support of allegations of fundamental rights violations in Member States with which it had a joint operation, but failed to address and follow- up on these violations promptly, vigilantly and effectively. As a result, FRONTEX did not prevent these violations, nor reduced the risk of future fundamental rights violations; - the FSWG was concerned about the lack of cooperation of ████████ to ensure compliance with some of the provisions of the EBCG Regulation, notably on fundamental rights, which led to significant delays in the implementation of the