Congolese minor suing Frontex: “I thought that the law is upheld in Europe”

They met for the first time on November 28, 2020. Jeancy Kimbenga, an unaccompanied minor from the Congo, and A.N., a young woman from Burundi, were part of a group of 18 asylum seekers, including three pregnant women and two additional unaccompanied minors, crossing the Aegean in a small boat, hoping to seek asylum in Greece.

Around 10pm they disembarked at Agrilia Kratigou, a village in southern Lesvos. The next morning, locals noticed the group walking on the streets of the island.

Among the locals who spotted them was Kostas Theodorou, a professor at the University of the Aegean. He and his wife photographed members of the group, and offered them food and water.

At 1pm a Coast Guard vehicle, a Nissan Navara, appeared and stopped them, and the uniformed officers told the group to lie down on the road. Shortly afterwards, two more vehicles arrived, and masked police officers conducted physical searches on the men and women, even physically searching their undergarments. The police confiscated their phones, documents and bags.

The group was loaded into a van with tinted windows, before being transported, hours later, to a white bus. They were told that they would be put in quarantine and then go through the registration process.

On Lesvos, new arrivals are quarantined in an area called Megala Therma, in the north of the island, before they are transferred to Mavrovouni, the Reception and Identification Center on Lesvos. However, when they got to the northern part of the island, the group was transported to a secluded port in the Petra area, where they remained for several hours without food and water. Meanwhile, police officers wearing balaclavas closed the road to prevent cars from passing through.

Around 7 pm, the group of 18 people who had crossed the Greek-Turkish maritime border the previous night, were transferred to a Greek Coast Guard vessel. As soon as the vessel approached Turkish waters, they were forced to get on lifeboats − orange, inflatable rafts that look like a tent, without a motor − and were abandoned at sea.

After the Greek Coast Guard vessel departed, a member of the group called 158, the emergency number of the Turkish Coast Guard. A boat arrived almost three hours after midnight, and transported them to the port of Çanakkale for registration.

It was now November 30, 2020.

How the first lawsuit against Frontex transpired

About a week later, on December 8, 2020, the above case of illegal pushbacks was reported on the largest German news website, Der Spiegel.

The journalists from Der Spiegel showed professor Kostas Theodorou a photo of a woman in Turkey, who was holding up a Turkish newspaper with a date later than the incident, and the professor confirmed that this was indeed A.N. − the woman he had met earlier on Lesvos.

Additionally, the photos that Jeancy Kimbenga was able to take, (the only member of the group who managed to hide his phone from the officers who apprehended them), confirm that the vehicle was in fact from the Greek Coast Guard (with license plate LS 59096)
as was the patrol boat (Vosper Europatrol 250 MK1 class, with identification number LS 05019), which was used to transport them.

However, their shared experience was not the only time that the two asylum seekers, after entering Greece, were pushed back by the Greek authorities before they could apply for asylum, as is set out by the UN’s Universal Declaration of Human Rights and international law.

For Jeancy Kimbenga, a similar incident had occurred in May 2020, and another a month later in June. As for A.N., four months after the incident reported by Der Spiegel, she again attempted to reach Lesvos, only to be returned to Turkey.

The chronology of Frontex pushbacks by the petitioners

“We reached the shore and wanted to get the boat onto land, but the police who had arrived stopped us. They beat us while we were in the lifeboat, they forced us to go back, and the Turkish Coast Guard came and got us,” A.N. told Solomon last August from Samos, where her asylum application had just been accepted, following her third attempt to reach Greece.

A.N. had been forced to flee her country because she had joined the opposition and had been receiving threats, which led to her house being burned to the ground.

“I was so scared, but when they gave me my ID, I squealed with joy. As soon as I found out, I called my lawyer. It wasn’t easy but we won nonetheless,” she told Solomon, after being granted international protection as a refugee.

Now in Greece, A.N. and Jeancy Kimbenga (from Turkey) are jointly suing Frontex for what they claim the European Border and Coast Guard Agency allowed to happen to them. This is the first lawsuit against Frontex in its history, which this month (October) marks the 17th year since its founding.

What is contained in the lawsuit?

In the 50-page appeal submitted by the two petitioners, filed on May 25, 2021, and examined by Solomon, the transgressions against them are related to Frontex activity in the Aegean region, which further increased after two rapid intervention operations at the Greek border within 2020.

On February 15, 2021, Frontex was called upon to respond to the transgressions, following a preliminary request from the petitioners. On March 23, 2021, the executive director of Frontex, Fabrice Leggeri, responded in writing. However, it was judged that the reply did not constitute the statement of a position, and as a result, does not absolve the agency from the failure to act.

Panagiotis Dimitras, of the Greek Helsinki Monitor (GHM), one of the NGOs providing legal support for the case, told Solomon:

“We, the collaborating NGOs, have filed a lawsuit against Frontex in the European Court of Justice because we believe that under the EU-Turkey agreement (which of course, is, in itself a violation of human rights), Frontex is the agency responsible at the EU border. Thus, in every illegal activity taking place at the border, Frontex acts as an accomplice, unless Frontex reports it, to absolve itself of responsibility.”

Frontex’s failure to act concerns the non-suspension or termination of operations in the Aegean Region – measures which the executive director did not take despite the provisions of Frontex’s regulations.

In particular, in accordance to Article 46, the regulation provides that in the event of “breaches of the fundamental rights or obligations of international protection relating to the activity in question, which are of a serious nature or which may continue… the Executive Director… withdraws funding… or suspends or terminates any activity of the Agency, in whole or in part…”.

Moreover, and despite the provisions of its fundamental regulation, Frontex does not appear to be recording the systematic and continual serious breaches of fundamental rights at Europe’s external borders. And even when these breaches are recorded and reported by external sources, often providing indisputable evidence, Frontex does not proceed with further investigation.

Complicity in the drowning of a minor?

Another interesting point is that the operational objectives of Frontex’s activity in Greece include, among other things, the referral and provision of “initial information to persons in need or wish to apply for international protection” and the support of “the identification of special needs… unaccompanied minors… victims of human trafficking… persons in need of international protection”.

Of the two petitioners, Jeancy Kimbenga is an unaccompanied minor; and when A.M. finally managed to apply for asylum upon her third arrival in Greece, she was granted international protection. However, there are other facts in the appeal which expose Frontex’s structural weaknesses in acting on the basis of the regulations.

On the night of June 12, 2020, Jeancy Kimbenga, in his second attempt to seek protection in Greece, departed from ​​Izmir, Turkey along with many women, men and children. After they managed to enter Greek territorial waters, Greek Coast Guard vessels attempted to push the boat back into Turkish waters, by maneuvering the vessels in a way that caused large waves. Then, one of the passengers, a minor and close friend of Kimbenga’s, fell into the water and drowned.

The Greek Coast Guard reported that they did not retrieve him from the sea. Shortly afterwards, the Turkish Coast Guard announced that it had retrieved the body of a minor from the sea during the period of June 12-14, 2020.

Since the European Border and Coast Guard Agency did not act in accordance with its obligations in any of the five cases of violation of fundamental rights reported in the appeal, Dimitras added, “they consciously agreed with the plethora of illegal activity occurring in the Aegean and at land borders at Evros. After all, this is the conclusion that the European Parliament came to, after our appeal.”

The example of the Danish Coast Guard ship

The reports from refugees and migrants at the Greek border also include the Coast Guard vessels of other European countries, which are in Greece serving in Frontex, a role sometimes of tolerance and sometimes of participation in pushbacks.

The only incident in which a vessel belonging to another country’s coast guard reported impending illegal pushback that it was asked to carry out, and refused to participate in, occurred in June 2020.

At the time, a Danish Coast Guard vessel reported that it had just rescued about 33 people near the island of Kos when it received, via radio, an order from Greek authorities “to put them back in the sea and drag them into Turkish waters” as stated by the order.

The Danes refused to carry out the order, believing that it would endanger the lives of the asylum seekers. The refugees were safely taken to the port of Kos, and the Danish crew reported the incident.

Such pushbacks are not a phenomenon that has occurred only during recent years in Greece, but neither are they an exclusively Greek phenomenon. Earlier in October, with the publication of a joint investigative report coordinated by Lighthouse Reports (in cooperation with Der Spiegel, Libération, the Independent, and various Balkan media outlets) documents were presented regarding the activities of groups of masked men who carried out pushbacks at the borders of Balkan countries (including Greece) against asylum seekers, in a practice deemed illegal.

The revelations − evidenced by images, audio, and geolocation verification − forced Croatia to admit for the first time that such incidents had been carried out by their own officers, while Greece stated that it would investigate the case.

The European Commission, however, has called for the creation of a mechanism to monitor human rights violations at the border, as a condition for the release of additional funding of €15.83 million for Greece.