“They Intended to Kill Us”

The maritime environment is cruel and unforgiving. But this was no unlucky shipwreck. Jeancy says that the waves were generated deliberately, thrown up by the maneuvering wake of a Greek coast guard boat at the borders of the European Union (EU). “They intended to kill us,” says Jeancy. Even in the most generous interpretation, the coast guards were indifferent to the deadly danger their actions posed to the men, women, children, and baby on board the dinghy. Jeancy recalls the guards watching in amusement as his friends drowned. Their laughter may have been the last thing he heard. The guards made no attempt to retrieve the body.

Too late, Jeancy and the others were finally brought aboard the Greek boat. But this was no rescue. He recalls that some of them were beaten, and their personal effects were stolen. They were forced onto overcrowded rafts with no means of navigation — far more dangerous than the dinghy they had left — and marooned in open water. After drifting back toward Anatolia for hours, they were eventually rescued and detained by Turkish coast guards.

Jeancy attempted to cross the Aegean several times. The time he watched his friend’s death was the second crossing. On the first occasion he got within meters of the Greek shoreline and experienced the first incident in a soon-to-be-familiar pattern. “We were told we were safe and could turn off the engine,” he later recalled to parliamentarians. Then guards, hooded to avoid recognition, “began to search us, and took everything we had — phones, bags, the clothes that kept us warm.”

On his third crossing attempt, Jeancy reached land. He was part of a group of eighteen people, including three pregnant women and three children, who came ashore in the sandy south of Lesbos, Greece, late one evening in November. They were intercepted by police, strip-searched, beaten, held on a bus for hours without food or water, and finally once again taken to sea and put on dangerous rafts.

Jeancy was no seafarer — he had never even been taught to swim. What possesses a young man to stare death in the face and keep going back? In Jeancy’s case, it was the sense that he had no other choice. After his father died when he was fifteen, his family was persecuted and tortured. Eventually he fled his Congolese home, arriving in Turkey in the winter of 2019. In Turkey there was no safety, no chance of building a new life, and every possibility he would be forced home. In Europe, at least theoretically, he would have access to a fair asylum process and the ability to resume his study of Latin philosophy and literature that he began in Kinshasa. “I want to have a place where I am at peace, where I can sleep,” he says. In practice, of course, he was denied even the chance to apply for asylum.

Jeancy survived his ordeal — physically at least. And then he decided to seek justice. He met with front-LEX, an organization founded by concerned lawyers and activists to address the lack of legal accountability for European Union migration policy, and particularly for the EU border force Frontex, which the organization’s name is a nod to. Jeancy’s case has now launched at the Court of Justice of the European Union (CJEU). A man left for dead by the shock troops of Europe’s border army has now come to fight that army in court.

Pushing the Boundaries

Seaborne assaults of the type conducted against Jeancy are a routine feature of border policing. Despite their lethal consequences, they are often innocuously described as pushbacks. In the Aegean region alone, an estimated forty-three thousand such assaults have taken place. Jeancy’s court case aims to demonstrate that the attacks he was subjected to were not random accidents but were deliberate yet illegal policy of both the Greek border force and Frontex, and that EU law — including Frontex’s own charter — requires its operations in the Aegean to end. There is a further chain of reasoning: Jeancy’s case argues that he has a right for his asylum claim to be heard fairly, but that the operations of Mediterranean forces prevent him from exercising that right.

Frontex works jointly with the Greek coast guard to police the Aegean. The agency has grown in power and stature, receiving billions in new funding over the past years. It is expanding its scope, from spy balloons to advanced predictive AI technology. But it remains in some respects akin to a franchising operation. It oversees and coordinates the work of dozens of national border forces, ensuring (perhaps deliberately) a complex structure of deniability. Naturally, this makes accountability difficult. Crimes against migrants can often have an awkward legal status, as migrants carry neither the more defined legal rights of a citizen against police violence nor those of a soldier against abuse by enemy combatants. This said, dragging someone to sea and leaving them for dead is a human rights abuse regardless of their citizenship status. Frontex’s own charter contains Article 46 — a provision mandating the cessation of operations where there are systematic violations of human rights. Unsurprisingly, Frontex has not invoked it. Ylva Johansson — the Swedish Social Democrat serving as EU Commissioner for Home Affairs — has likewise not deigned to request a withdrawal.

Jeancy’s current case is his second alongside front-LEX before the CJEU. His first was not heard on procedural grounds, although the court declined to ask him to pay Frontex’s costs. But since the first application was thrown out, a great deal has changed. Throughout the past few years, a motley crew of journalists and NGOs has tirelessly investigated Europe and Greece’s operations in the Aegean Sea. This summer, Lighthouse Reports, working with French and German dailies Le Monde and Der Spiegel, released a battery of evidence demonstrating Frontex’s involvement with and oversight of the Greek coast guard’s attacks at sea. Front-LEX’s case relies in part on a linked and heavily classified report from the EU’s European Anti-Fraud Office (OLAF), which charges Frontex with a dysfunctional internal operating environment of bullying, incompetence, misconduct, and the deliberate sidelining of those responsible for upholding human rights and standards. Frontex director Fabrice Leggeri was forced to resign.

Frontex’s new interim director, Aija Kalnaja (who served as a Latvian police official before joining European law enforcement in 2013), has presented herself as a softer face. But Clare Daly, an Irish member of European Parliament who sits on the parliamentary Committee on Civil Liberties, Justice and Home Affairs, gave a more skeptical account of Kalnaja’s testimony. “She was very defensive — and her main concern was for the morale of the people in Frontex affected by all the bad publicity, rather than the seriousness of all that had gone on. Frontex doesn’t seem to have learned any lessons, and it hasn’t given any concrete demonstration of coming to grips with it all or changing how it operates.” While the OLAF report remains classified (and activists are demanding it be made public in full), Jeancy’s case reveals new details from it. Not only does OLAF find that Frontex witnessed such incidents — it finds clear evidence of cover-ups, from failures of recording and reporting to the redeployment of aerial assets in places where they would avoid witnessing human rights abuses. Kalnaja claims — bizarrely — not to have read the report.

Frontex’s behavior in response to Jeancy’s case has acted as a litmus test for whether Kalnaja’s leadership represents anything more than a shuffling of deck chairs. Front-LEX’s advocacy officer Josephine Valeske is doubtful of the new boss’s commitments. “First, they tried to hide their illegal conduct. But now they are simply saying they will reverse Article 46 and send more officers, not less, to where human rights violations are taking place. It feels like they are testing how far they can go before someone stops them. It will take a court to tell them there are limits to how far they can go.”

Unaccountable

Valeske and her colleagues argue that the rule of law itself has broken down in the Aegean Sea. “These attacks are illegal. But a big part of the problem is the concentration of EU executive power. If a member state violates human rights, you can take it to Strasbourg [the seat of European Parliament and the Council of Europe]. That is not the case with EU executive agencies. So judicial power has been weakened, and we are trying to reestablish it.” This is the logic underpinning front-LEX’s modus operandi, as the first NGO dedicated to taking Frontex cases to the CJEU. Front-LEX’s work involves a careful legal strategy, trying a range of different approaches to build new lines of accountability that can constrain Frontex and agencies like it.

If the strengthening of jurisprudence is one benchmark by which success is measured, so too is individual accountability. Front-LEX undertook a previous pre-action against Fabrice Leggeri that added to the pressure ahead of his resignation. And Valeske reminds Frontex staff responsible for human rights abuses that “it’s only a matter of time before people will be prosecuted for their crimes. Pressure is growing, and none of this can be hidden forever.” She issues a clarion call to would-be whistleblowers: “Now is the time to step forward if you know something and be on the right side of history.” Recently, a Danish vessel assigned to Frontex duties was celebrated for refusing an order to implement a pushback. Campaigners hope that such stories may become more than the odd exception.

But there is a dangerous shortage of resources. Legal battles in relation to Mediterranean migration are often initiated by the better-equipped Right; such as the trials of search and rescue workers, politicians who help refugees, or refugees themselves. Meanwhile, a beleaguered migrant rights sector battles for survival. Harassed by authorities and running out of money, monitoring and support organization Josoor — which supports survivors of incidents like Jeancy’s in Turkey — recently shut down. Search and rescue charities complain of deliberate attempts to bankrupt them with port fees over low-level procedural issues. And Jeancy’s lawyers are no different — operating on a meager budget and unable to seek funding from the EU or member states while the Ukraine crisis has absorbed much civil society funding attention. “It’s hard to estimate how much these cases, which can take years to litigate, will cost,” says Valeske. “But we’re currently crowdfunding for the very minimum, for €50,000 just to keep us going to the end of the year.”

Their resource shortages are no cap on their ambition. With cases like Jeancy’s, these campaigners are hoping to shake the EU’s violent border regime to its core. “We want the CJEU to rule that Frontex has to suspend or terminate its joint operations first in the Aegean Sea, and then everywhere the agency violates fundamental rights,” Valeske says. “In that way, we pave the avenue for people to exert their right to seek asylum.”

Jeancy summarizes, “Justice is usually on the side of the most powerful. Even with video evidence of our recovery and kidnap, these crimes go unpunished. How many deaths have these interventions caused in plain sight? And still the system does not act.” He reflects: “I didn’t choose this life — it has been imposed on me. So I’m asking for a chance to take my life and my youth back into my own hands.”

For all the complex politics underpinning the border regime, the core of it is very simple. A man who bore witness to his friend’s murder is fighting to ensure it never happens again.