FRONTSX

Warsaw, 27/10/2022

FINAL SIR REPORT
10347/2022 - SIR Cat. 1-FSC Aerial Surveillance 2022

SI-Handler: Fundamental Rights Office

   

 

Key Points

 
   
    
  
  
   
 
 
   
  
 
  
 
 
 
 
 
   

Incident reported:
A boat adrift was detected by a Frontex Surveillance Aircraft detected in the Tunisian SAR zone and later in the
Maltese SAR zone with 280 + persons on board. The migrant boat was eventually rescued by the Italian authorities.
During the rescue operätions 7 people on board were found dead.

Possible violation of fundamental rights enquired:

e  Rightto life (Article 2 ofthe Charter of Fundamental Rights of the European Union);

e Human dignity (Article 1 of the Charter of Fundamental Rights of the European Union);

e Right to integrity of the person (Article 3 of the Charter of Fundamental Rights of the European Union);

®e _Prohibition of innuman and degrading treatment (Article 4 of the Charter of Fundamental Rights of the
European Union);

e The obligation to conduct rescue operations in accordance with international human rights standards and
maritime law obligations, (SAR and SOLAS Conventions).

Party allegedly involved in the incident: Frontex Surveillance Aircraft (FSA), Tunisian, Maltese and Italian MRCCs

Conclusion and impact:
Based on the available information, the Fundamental Rights Office notes that more than approximately 17 hours

passed from the moment the migrant boat was sighted adrift for the first time (24/01/2022 at 06.54 UTC) by
Frontex until it was rescued (24/01/2022 at 23.50 UTC). The Fundamental Rights Office underlines that search and
rescue at sea requires prompt coordination and assistance from all parties involved to ensure the protection of
migrants’ right to life and to avoid, as much as possible, loss of life. While the Frontex aerial asset contributed with
the detection and updates on the boat in distress which were communicated to the competent MRCC authorities,
the Fundamental Rights Office underlines that a more efficient and prompt SAR response and coordination,
particularly between the two MRCCs in whose search and rescue zones the boat was detected, would have been
necessary, considering in particular that 7 migrants died while on board.

 

 

 

  

Description of the event - Timeline Operational Area

On 24/01/2022 at 06:52 UTC, a FSA asset (Osprey 2) flying from EEE] detected a wooden migrant boat
with one engine inthe TUN SAR region at positio The boat was adrift with approximately
200+ persons on board. No lifejackets were visible. FÜ] informed the MRCCs of Italy, Malta Libya and Tunisia
(information included into Mission Report as FSA EEE). Reporting Tooıs 2x

   
 

     

Osprey 2 provided two updates on the vessel at 10:39 and 11:11 UTC and reported that the vessel was mobile
again with a speed of 7kts. At the third sighting (11:11 UTC) the vessel had crossed from the Tunisian into the
Maltese Search and Rescue Zone. Shortly after, Osprey 2 returned to based.

Operational Area
The same day, IT NCC requested a second sortie with the FSA asset flying fromÜEEEE to obtain an
update on the case.

 

Operational Area

Reporting Tools

Operational Area
At 22:05 UTC, the FSA updated the position of the wooden migrant boat in Italian SAR region at EEE]
EEE |: further reported that the boat was again adrift and that the NGO AITA MARI was in vicinity. At
23:50 UTC, the FSA asset sighted the Italian Coast Guard performing the rescue of the migrants at position

Operationai Arde EEE. (Information included into Mission Report il as EEE). zenorting Tooıs (2x)

 

 

Operational Arda

According to information obtained through the Italian law enforcement expert present in the monitoring room,
280 people were rescued and 7 people were found dead, probably due to hypothermia.

EMT did not receive any reply from the Libyan or Tunisian Authorities after they had disseminated the sighting
information. Communication to MRCCs was relayed via e-mail (sighting forms from FSA) and with the assistance of
the Italian SAR Expert present in the monitoring room.

 

Information collected - Contributors/Entities consulted — Follow-up
SIR 10347/2022 Cat. 1 was launched on 25 January 2022. FSA was consulted to get more information and details
about the incident.

 

Assessment

SAR activities and considerations regarding rescue operations

e The Fundamental Rights Office takes note of the timely sharing of information about the migrant boat by
Frontex with all relevant MRCCs in the present case. It likewise notes that the initial classification of the
sighted migrant boat and overall situation triggered the notification to allthe MRCC, as formally required
by applicable procedures.

e The Fundamental Rights Office commends as good practice the fact that Italian authorities made use of
the possibility to request a second sortie to obtain updates on distress cases producing updated
information on the boat. The new details then informed the subsequent rescue operation.

e  _\Whilethe Fundamental Rights Office had limited insight into the coordination of the search and rescue
among MRCCs or potential lack thereof, it underlines the significant number of hours that passed between
the initial detection of the migrants by Frontex and their rescue and considers that the rescue should have
been conducted more promptly.

The Fundamental Rights Office underlines that the SAR Convention foresees an obligation of the State
Parties to provide assistance in their own search and rescue zone and whenever information have been
received of persons in distress and to foster and ensure cooperation with neighbouring countries.
Furthermore, The Office would like to draw attention to the statement of the Human Rights Committee
(HRC) of the International Covenant on Civil and Political Rights according to which delay or failure to
respond to distress call/situation constitutes a violation of the State’s obligation to protect right to life.

 

e _Importantly, and as the present case makes clear, the Fundamental Rights Office considers that national
authorities must factor inthe 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 ifthere 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.

Inthe case under scrutiny, the FSA had initially assessed the case to be a search and rescue case and had
shared the respective information with MRCCs for their assessment and follow up. As the discovery of the
dead persons on board makes clear, an immediate rescue was necessary despite the fact that the boat
remained partially mobile.

 

Final conclusion — Proposals — Lessons learned

In light ofthe above, the Fundamental Rights Office believes that further discussion is needed to better coordinate
the SAR operations at sea in pre-frontier areas, in order to minimize risks related to, inter alia, protection of
migrants’ right to life.

Specifically, the Fundamental Rights Office recommends the following:
To Frontex

To continue providing SAR support for operations in Central Med using FSAs within the multipurpose aerial
surveillance service.

To continue existing good practice related to FSAs staying on site for continuous monitoring and the
option for second sorties to collect updated information that can be crucial for the rescue of migrants;
to promote a dialogue among stakeholders including EU MRCC to ensure that rescue operations are
conducted in a coordinated and prompt manner;

to strengthen communication with NGOs operating in the area with assets available for SAR activities.

To Member States’ authorities

1. For EU MRCCs to support SAR activities and respond in atimely manner to distress calls in order to ensure
that rescue operations are promptly conducted in line with international human rights and refugee law
and to foster and ensure good cooperation with neighbouring countries for the purpose of saving lives.

Final SI-Handler Report Template

FRONT=SX

Warsaw, 02/08/2022
FINAL SIR REPORT
12634/2022 - SIR Cat. 1- FSC Aerial Surveillance 2022
SI-Handler: Fundamental Rights Office

Key Points

Incident reported:
On 02/06/2022, Frontex surveillance aircraft sighted in the Tunisian SAR zone an overcrowded migrant boat with

approx. 50 migrants on board, headed north, into the Libyan SAR zone. Tunisian and Libyan MRCCs were notified.
Three hours later, the boat was sighted in Libyan SAR zone, with Libyan coast guard boat conducting rescue of the
migrants. Frontex aircraft monitored the interception of the boat and embarkation of migrants, during which it
recorded instances of physical violence by the Libyan Coast Guard vessel’s crew against the people from the
migrant boat. Specifically, five persons were slapped and hit to the head as well as kicked, some repeatedly. The
Libyan vessel with migrants onboard then returned to Libya.

Possible violation of fundamental rights enquired: Possible violations of
e human dignity (Article 1 of the Charter of Fundamental Rights of the European Union), right to integrity
of the person (Article 3 of the Charter of Fundamental Rights of the European Union), prohibition of
inhuman and degrading treatment (Article 4 ofthe Charter of Fundamental Rights ofthe European Union,
Article 7 of the International Covenant on Civil and Political Rights),
e the obligation to conduct rescue operations in accordance with international human rights standards and
maritime law obligations, including disembarkation in a place of safety (SAR and SOLAS conventions).

 

Party allegedly involved in the incident: Officers of the Third Country Libya, Frontex Surveillance Aircraft (as
observer)

Conclusion and impact:
Considering the involvement ofthe third country Libya, the Fundamental Rights Office has been unable to

investigate the abuse of migrants during the rescue beyond the review of video evidence from Frontex
surveillance aircraft. However, based on this evidence, the Fundamental Rights Office considers that excessive
force has been used by the Libyan authorities during the described incident, violating rights of persons targeted
to be free from inhuman and degrading treatment. Additionally, the Fundamental Rights Office is concerned
about the safety of all rescued migrants upon disembarkation, considering the reporting by international NGOs
about the detention conditions in Libya. In this respect, the Fundamental Rights Office invites dialogue on better
coordination of SAR activities, including Frontex’ classification of vessels requiring immediate rescue.

Description of the event - Timeline

On 02/06/2022, at 05:50 UTC, Frontex’ surveillance drone detected at (Tunisian SAR
zone) a blue overcrowded wooden boat with approx. 50 migrants on board heading north. At 06:39 UTC, the
Tunisian as well as Libpyan MRCC were notified of the sighting by Frontex.

Operational Area
At 08:51 UTC, Frontex surveillance aircraft observed the same migrant boat at (Libyan
SAR zone) and remained at the site to monitor the rescue. Libyan Coast Guard vessel was in pursuit, with the
migrant boat refusing to stop. At 08:55 UTC, Libyan vessel dispatched a fast rigid inflatable boat (RIB) with the
crew of three. At 09:00 UTC, the migrant boat was intercepted by the Libyan RIB. During interception, the
recording shows two blows (arm swings) by one of the RIB crew aimed at a person steering the migrant boat.

At 09:05 UTC, migrants began being transferred from the boat onto the Libyan Coast Guard vessel. At 09:06 to |]
09:20 UTC, during the onboarding of migrants, the recorded video shows several incidents of physical abuse by
the crew of the Libyan vessel. Five persons from the migrant boat are subjected to slaps and hits to the head as
well as kicks, both prior to and immediately after their onboarding. All the migrants are being gathered at the
front deck ofthe Libyan Coast Guard vessel.

At 09:21 UTC, Frontex surveillance aircraft leftthe area. Libyan Coast Guard vessel moved off and departed,
initially heading North. At 10:25 UTC, the same Libyan vessel was sighted again, with migrants on the fore deck,
heading towards Libyan coast.

 

Information collected - Contributors/Entities consulted - Follow-up
SIR 12634/2022 Cat 1 was launched on 27/06/2022. Due to conclusiveness ofthe video evidence and the third
country status of Libya, no further enquiries were conducted.

 

   
   

Assessment

Conduct of the rescue by Libyan authorities:

e The Fundamental Rights Office considers it established, in light of available video evidence, that the
Libyan Coast Guard officers have used physical violence amounting to innuman and degrading treatment
of migrants, during their rescue.

Reporting Tools

e The Fundamental Rights Office notes that similar abuse of migrants has been documented previously,
including recently in SIR EEE. This pattern of behaviour by the Coast Guard officers of a third
country Libya casts doubt on general compliance of Libyan authorities with international and human
rights law during SAR operations.

SAR activities and considerations regarding disembarkation in a place of safety:

e The Fundamental Rights Office takes note of the timely sharing of information about the migrant boat
by Frontex with all relevant MRCCs in the present case. It likewise notes that the initial classification of
the sighted migrant boat and overall situation (migrant boat navigating, sea state 2, overcrowded,
buoyancy good, no people in the water, no life jackets), which triggered the notification of Libyan MRCC,
was done fully in line with applicable procedures.

 

e The Office commends as good practice the fact that Frontex surveillance aircraft was instructed to stay
and monitor the whole course of embarkation by the Libyan Coast Guard, enabling gathering important
evidence underlying this SIR.

© The Fundamental Rights Office however also notes that entities involved in SAR operations, in addition
to ensuring their expediency in order to protect the right to life of those onboard vessels in distress, are
also required to seek to disembark the rescued persons in a place of safety. Generally, identification of a
place of safety in the context of SAR is an important safeguard of the principle of non-refoulement.
According to Art. 80 ofthe EBCG Regulation, Frontex shall ensure that “in the performance of its tasks,
no person is disembarked in, forced to enter, conducted to, or otherwise handed over or returned to the
authorities of a country where there is, inter alia, a serious risk that he or she would be subjected to the
death penalty, torture, persecution, or other inhnuman or degrading treatment or punishment, or where
his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual
orientation, membership of a particular social group or political opinion”.

 

e The Fundamental Rights Office further notes numerous reports of international NGOs (among them
Amnesty International, Medecins Sans Frontieres) and IGOs (including UNHCR), which do not consider
Libya as a safe third country in this context.

      
 

 

Final conclusion — Proposals — Lessons learned

Violations of rights of migrants to personal integrity, and to be free from inhuman and degrading treatment in
the SIR 12634/2022 have been established on the basis of video evidence.

Furthermore, in the context of

 

Reporting Tools

(i) documented instances of migrant abuse during rescue at sea by Libyan authorities in the present
SIR as well as in Sır EN:

(ii) the need to balance several fundamental rights concerns during coordination of SAR activities
(namely the right to life and identification of place of safety/principle of non-refoulement); and

(iii) the involvement in SAR operations in Central Med of Libya, which cannot unequivocally be

considered as a safe place for the purposes of disembarking rescued persons;

the Fundamental Rights Office believes that further discussion may be needed to better coordinate the SAR
operations at sea in pre-frontier areas, in order to minimize risks to fundamental rights of rescued migrants in
scenarios where Frontex is involved.

Specifically, the Fundamental Rights Office recommend the following:

To Frontex

1. to continue monitoring the conduct of SAR activities by Libyan authorities using Frontex surveillance
aircrafts (FSAs) within the multipurpose aerial surveillance services;

2. to engage in a dialogue on definitions of vessels in distress and on common criteria to classify when a
vessel requires prompt intervention to be rescued;

3. to strengthen communication and coordination with NGOs operating in the area with assets available
for SAR activities;

4. to explore possibility of engaging with UNHCR and IOM with respect to rescue operations conducted by
the Libyan authorities to ensure their presence at disembarkation points in Libya.

 

To Member States’ authorities

1. EU MRCCSs should pro-actively support SAR activities along and in the vicinity of the lines separating their
respective SRR from that of Libya, in order to ensure that rescue operations are promptly conducted in
line with international, human rights and refugee law.

Operational
Area

FRONT=X

Warsaw, 28/10/2022

FINAL SIR REPORT
13489/2021 -SIR Cat. 1— FSC Aerial Surveillance 2021
SI-Handler: Fundamental Rights Office

Key Points

Incident reported:
Frontex Surveillance Aircraft recorded the Libyan Coast Guard shooting at migrants during a search and rescue

operation conducted in the Libyan Search and Rescue Region (SRR) on 15/09/2021.

Possible violation of fundamental rights enquired:

Human dignity (Article 1 ofthe Charter of Fundamental Rights of the European Union),

Right to life (Article 2 ofthe Charter of Fundamental Rights of the European Union)

Right to integrity of the person (Article 3 of the Charter of Fundamental Rights of the European Union),
Prohibition of innuman and degrading treatment (Article 4 of the Charter of Fundamental Rights of the
European Union)

The obligation to conduct rescue operations in accordance with international human rights standards and
maritime law obligations

Party allegedly involved in the incident: Libyan officers, Frontex Surveillance Aircraft (as observer).

Conclusion and impact:
Based on video evidence collected by the FSA which monitored the incident, the Fundamental Rights Office

considers that excessive force was used by the Libyan authorities during the described incident, violating migrants‘
fundamental rights including to be free from inhuman or degrading treatment. Additionally, the Fundamental
Rights Office is concerned about the safety of all rescued migrants upon disembarkation in Libya. In this respect,
the Fundamental Rights Office invites dialogue on better coordination of search and rescue (SAR) activities in
Central Mediterranean taking into consideration that Libya cannot be considered a place of safety.

Description of the event - Timeline

On 15 September 2021, at 07:45 UTC, the Frontex Surveillance Aircraft Heron 1 detected a blue wooden boat at
En with 20+ migrants on board in the Libyan Search and Rescue Region. The boat had
one engine and was travelling with 6kts and course 360°. A LBY PV was in vicinity. (Sighting report sent to Italian,
Maltese, Libyan and Tunisian authorities)

At 09:04 UTC, Heron 1 returned to the same vessel monitoring the intervention of the Libyan patrol vessel who
had arrived on site attempting to intercept the boat. At the time, Fundamental Rights Monitor [FROM] of the
Fundamental Rights Office was present in the monitoring room and followed the incident on the screen together
with the European Monitoring Team. The FROM and FRO Serious Incident Team were further provided with the
video of the incident for their review showing the following:

The migrant boat attempted to avoid interception and was closely followed by the Libyan patrol vessel. Attempting
to stop it, the LCG vessel subsequently manoeuvred around the small boat in circles. For approximately 35-45
minutes, the LCG vessel continued trying to intercept the boat by means of creating waves and the use of a water

 

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hose spraying water in the direction of migrants. Moreover, an individual on board the Libyan patrol vessel at one
point during the pursuit was observed holding an item shaped like a pistole, pointing it in direction of the migrant
boat and shots, presumably bullets, being fired in the direction of the migrants.

Eventually, the LCG vessel managed to stop the boat and the migrants were made board the LCG vessel at 10:04
UTC.

No information was obtained concerning the port of disembarkation of the rescued migrants.

At 10:37, Frontex Team Leader sent to the Libyan authorities with Italian, Maltese and Tunisian authorities in copy
the following message:

Reporting Tool Operational Area
“In regards to the sighting FS sent earlier we would like to inform you that patrol vesselfl is shooting into

the water close to the migrant boat and using fire hose in their direction. We highly recommend/suggest to NOT
use force during SAR operations.”

Information collected - Contributors/Entities consulted - Follow-up
SIR 13489/2021 Cat. 1 was launched on 17 September 2021.

Conduct of the rescue by Libyan authorities:

 

e  _Considering the availability of video evidence, the Fundamental Rights Office considers established that
the members ofthe Libyan Coast Guard used physical force that is not in line with the principles governing
the use of force (necessity, proportionality, precaution) putting the lives of the migrants in jeopardy during
search and rescue.

Reporting Tool
Against this backdrop and several other reports about excessive use of force by Libyan authorities during
SAR, including well documented ones (12634/2022 an), the Fundamental Rights Office is
concerned about the compliance of Libyan authorities with international human rights law during SAR
operations.

Frontex support to SAR activities and considerations regarding disembarkation in a place of safety:

e The Fundamental Rights Office takes note of the timely sharing of information about the migrant boat by
Frontex with all relevant MRCCs in the present case. It likewise notes that the initial classification of the
sighted migrant boat and overall situation triggered the notification of Lipyan MRCC in line with applicable
procedures.

The Fundamental Rights Office commends as good practice the fact that Frontex surveillance aircraft was
instructed to stay and monitor the whole course of embarkation by the Libyan Coast Guard which allowed
for the collection of evidence underpinning the present SIR.

The Fundamental Rights Office remains concerns about engagement that result in migrants being brought
back to Libya as according to numerous reports issued by international organisations including OHCHR,
UNHCR, CoE and Amnesty International, the country cannot be considered as a place of safety for
disembarkation.

Final conclusion — Proposals — Lessons learned

Considering the video evidence showing actions by Libyan officers that amount to excessive use of force putting
the lives of migrants at risk during SAR the Fundamental Rights Office considers that migrants‘ fundamental rights
guaranteed in articles 1, 2, 3, and 4 of the Charter of Fundamental Rights of the European Union were violated.
Furthermore, in the context of:

 

(i) Several documented cases of abuse during rescue at sea by Libyan authorities including the present
SIR;
(ii) the need to balance several fundamental rights concerns during coordination of SAR activities

(namely the right to life and identification of place of safety/principle of non-refoulement); and

 

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(ii)

the involvement of Libya in SAR operations in Central Mediterranean, which cannot unequivocally be
considered as a safe place for the purposes of disembarking rescued migrants,

  
 
 
 
 
  
   
 
 
 
  
  

the Fundamental Rights Office believes that further discussion is needed to better coordinate the SAR operations
at sea in pre-frontier areas, in order to minimize risks to fundamental rights of rescued migrants in scenarios where
Frontex is involved.

Specifically, the Fundamental Rights Office recommends the following:
To Frontex

1. Tocontinue providing SAR support for operations in Central Med using FSAs within the multipurpose aerial
surveillance service.;

2. To continue the FSA good practice to stay and continue monitoring, whenever possible, SAR operation
conducted by the Libyan Coast Guard;

3. to promote dialogue with/among EU Member States to ensure better coordination of search and rescue

activities in Central Mediterranean that takes into account that Libya cannot be considered a place of

safety for disembarkation of migrants;

to strengthen communication with NGOs operating in the area with assets available for SAR activities.

 
 

 

3/3

FRONTSX

Warsaw, 28/10/2022

FINAL SIR REPORT
SIR 14400/2021

SI-Handler: Fundamental Rights Office

Key Points

 

Incident: On 16 November 2021 at 10:41 UTC, Heron 1 spotted a white wooden boat adrift with 100+ migrants on
board inside the Libyan search and rescue zone, after having received respective information by the Italian Search
and Rescue (SAR) expert on a possible overcrowded migrant boat in distress and people inthe water. Three Mayday
calls were broadcasted on maritime CH16 by Heron 1. Migrants were rescued by the NGO Geo Barents and
disembarked in Messina port (IT). Reportedly, 10 people were found dead at the bottom of the boat.

Possible violation of fundamental rights enquired:

e  Rightto life (Article 2 ofthe Charter of Fundamental Rights of the European Union);
e Right to integrity of the person (Article 3 of the Charter of Fundamental Rights of the European Union);
e Human dignity (Article 1 ofthe Charter of Fundamental Rights of the European Union).

Party allegedly involved in the incident: Frontex Surveillance Aircraft, NGO Geo Barents, Libyan, and Italian
authorities (indirectly)

Conclusion and impact:
The Fundamental Rights Office finds that migrants were assisted by NGO Geo Barents 2+ hours after detection by

the Frontex aerial asset. With the available information, the Fundamental Rights Office could not conclusively
establish the condition of the migrants inside the boat at the time of detection or the overall duration of their
Journey at sea which could have ledto the death of the 10 migrants on board. The Fundamental Rights Office notes
that Frontex aerial asset remained on site and monitored the area of the incident and that th
N acted in line with applicable legal framework and operational procedures. As regards the actions by
the relevant authorities, the Fundamental Rights Office understands that Frontex team leaders did not receive a
reaction or information on their cooperation/coordination of the case and underlines the importance of timely
communication by all involved stakeholders. In light of the importance of such exchange and updated information,
it commends the exchange between Frontex TL and IT SAR expert which allowed the FSA to proceed on site.

Description of the event - Timeline

The timeline of the incident (based inf information and respective mission and sighting reports) includes the
following actions:

 

     

Reporting Tools

 

On 16/11/2021,

At 10:12 UTC, the European Monitoring Team (EMT) at Frontex received information by the ITA SAR expert on a
possible migrant boat in distress with 100 POB and people in the water.

Operational Area
At 10:13 UTC, FSA Heron was directed to alter the course and fly direct to the migrant boat (to position

ee.

At 10:36 UTC, FSA Heron 1 reported the migrant boat in sight at distance.

 

Operational Area
At 10:41 UTC, FSA Heron 1 early detected a white wooden migrant boat in EEE. The boat

 

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Reporting Tools