An infamous internal report by the EU anti-fraud agency OLAF shows how Frontex tried to cover up human rights violations. We are publishing it for the first time.
“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.
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