Find below Emily O’Reilly’s speech on
Adriana shipwreck at the European Parliament’s LIBE Committee

When 600 people die on a summer’s night in the Mediterranean, their journey known of or witnessed for many hours and at various times by an EU agency, by two member states authorities, by civil society and by private ships and boats, a journey and a drowning, effectively in plain sight, there is one obvious question to answer ‘How did this happen’?

A second question is, how do we assess or assume our collective responsibility?

Those outside of our direct control who profit from human misery and desperation bear their own responsibility. But what happens when vulnerable people come within our European zone of control and we have choices to make?

European values are frequently invoked by policy makers as they express their support for fundamental rights.

Precisely how the most fundamental of human rights, the right to life, survives contact with those whose responsibility it is to manage our borders is the subject of an ongoing inquiry by my office and which will be published within the next ten days. I do not wish to anticipate the findings of that inquiry at this point so my remarks will concern the broader context.

In the aftermath of the Adriana shipwreck, I noted the official response.

Genuine sympathy and concern were expressed but the question of “how did this happen?”, while asked, was not immediately or, to date, answered.

A tragedy of this scale would normally demand an independent, forensic, public inquiry but it soon became clear that such an inquiry would not or could not happen.

I have no role vis a vis the member states, but I decided to open an inquiry into the actions of an EU agency that is under my mandate, to examine specifically how Frontex complies with its fundamental rights obligations, not only in this incident where it was present at certain points, but more generally in its participation in search and rescue operations in the Mediterranean.

This inquiry is being conducted at the same time as an investigation by Greek Ombudsman Pottakis into the actions of the Greek authorities in the Adriana tragedy. We hope that these investigations may jointly bring a significant amount of clarity into what happened last June and may even provide a model for future investigations in the absence of a single accountability mechanism.

Frontex does not have primary responsibility for search and rescue operations. That lies with member state authorities, but I felt it important nonetheless to outline the role of an agency acting in the name of EU citizens.

The EU’s border security architecture makes accountability gaps inevitable but policy choices also impact.

Frontex does not operate in a vacuum, and understanding the system in which it is embedded is vital to the ‘how did this happen?’ question.

In 2014, Mare Nostrum, the EU-funded proactive search and rescue operation led by the Italian authorities was ended.

The EU’s Fundamental Rights Agency has documented multiple instances of multiple member states either threatening to, or actually prosecuting, NGOs involved in similar proactive rescue operations. This must put a question mark over the real, as opposed to the rhetorical, priority of saving lives.

Proactive rescue is seen as a ‘pull’ factor for migrants. The tension therefore between the duty to save lives and the duty to discourage crossings challenges Frontex in balancing its border protection role with its duty to uphold the right to life.

The agency is now called a ‘coast guard’, but its mandate and mission falls short of that. It is a surveillance but not a rescue tool and is further constrained by the fact that it is Member State authorities who have the sole legal right to direct and coordinate search and rescue missions.

Frontex does have choices to make vis a vis how it reacts to maritime emergencies it detects through its surveillance, notably how it communicates to national authorities and takes decisions on issuing emergency signals. But its dependence on the good faith of member states is critical to its ability to comply with its fundamental rights obligations and, by extension, the EU’s ability to do so.

But what happens if Frontex doubts a Member State’s good faith? What if the orders it is compelled to follow are questionable?

And Frontex does have grounds to doubt whether some Member States comply with their fundamental rights obligations. The EU Anti-Fraud Office has found that Frontex surveillance assets have been deliberately diverted in order to avoid the witnessing of ‘pushbacks’. This – alongside other incidents – poses serious questions for Frontex’s relationship with national authorities and of its own understanding of its fundamental rights obligations in such circumstances.

If Frontex has a duty to save lives yet the legal and other tools it needs to do so are lacking, or the good faith of member states called at times into question, then that must necessarily be a matter of concern for EU legislators.

I have inquired into Frontex many times and this scrutiny will continue and expand, not only for Frontex, but for many EU institutions as the EU increasingly assumes the role of a hands-on executive body on everything from the processing of asylum claims and the procurement of vaccines to the delivery of armaments – all issues that have a substantial impact on individuals’ fundamental rights.

Saving lives is now a core concern of the EU and its agencies. A broad and sustained reflection on how to deal with that responsibility is necessary. I welcome LIBE’s role in this regard and hope my own inquiry’s conclusions will also contribute to this vital and urgent public debate.