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FRA’s Guidance on investigating alleged ill-treatment at borders suggests concrete steps to promote effective national investigations, including ways to enhance their transparency, to ensure full impartiality and independence of the investigating body from the body involved in the incident and to allow victims’ participation or secure evidence.
The implementation of the pact on migration and asylum offers an opportunity to address ineffective judicial protection. Article 10 of Regulation (EU) 2024/1356 introducing the screening of third-country nationals at the external borders expressly obliges Member States to adopt relevant provisions to investigate allegations of non-respect for fundamental rights in relation to the screening. Member States must ensure, where appropriate, referral for the initiation of civil or criminal justice proceedings in cases of failure to respect or to enforce fundamental rights, in accordance with national law.
Although this provision concerns alleged violations that emerge during the fundamental rights monitoring of the screening, it is likely that monitors will be confronted with information and evidence of incidents that concern migrants’ apprehension or their rescue at sea. When setting up their national mechanisms to monitor fundamental rights under the pact on migration and asylum, Member States should ensure that designated monitoring bodies are allowed to trigger investigations and to monitor their progress, also when they concern events reported during their monitoring of the screening, but which occurred prior to the screening itself. The European Commission should remain vigilant to this.