Strasbourg Observers

How to Get Away with Refoulement: Some Thoughts on Safi and Others v. Greece

September 07, 2022

Spyridoula (Sissy) Katsoni

Reports on deadly pushbacks at European borders have become so frequent by now that they hardly seem shocking. Yet, even the toughest of hearts cannot but be affected when reading the facts behind the Safi and Others v. Greece judgment, released by the European Court of Human Rights (Court/ECtHR) on the 7th of July 2022. The case originated from the sinking of a fishing vessel in the Aegean Sea, aboard which were 27 migrants who sought to enter Greece from Turkey. As a result of the sinking, 11 of the vessel’s passengers, including the wives and children of some of the applicants, died.

In a favourably-received and celebrated judgement, issued 8 years after these heartbreaking events, the ECtHR unanimously found violations of Articles 2 and 3 of the European Convention on Human Rights (ECHR), condemning the State’s failure to adequately respond to the risk to the passengers’ lives and to properly investigate the fatal sinking of the vessel, as well as the imposition of body searches on some of the survivors. This blogpost will initially outline the factual background of the case and the Court’s main findings and subsequently warn against the potential misuse of some the Court’s dicta as guidelines on evading responsibility for future refoulements.

Facts of the Case and the Court’s Judgment

On the 20th of January 2014, a fishing boat (‘Conzuru’), allegedly transporting 27 foreign nationals from Turkey to Greece (para. 10), was sank in the Aegean Sea, off the island of Farmakonisi, resulting in the deaths of 11 passengers. According to the applicants, the coastguard vessel, which approached the fishing boat when its engine stopped working very close to the coast (paras. 10-12), was travelling at a very high speed, in an attempt to push the passengers back towards Turkish waters, eventually causing the fishing boat to capsize (para. 9). Conversely, according to the national authorities, the boat was being towed towards the island of Farmakonisi in an attempt to rescue the passengers, when it capsized because of the panic and sudden movements of those on board.

The applicants argued that the national investigation into who was responsible for the fatal incident was inadequate. The Court examined their argument under the procedural aspect of Article 2 ECHR (para. 90) and recalled that when life is lost in circumstances which may give rise to State responsibility, States shall ensure that the legislative and administrative framework established for the protection of life is effectively implemented and that violations of the right at stake are punished and sanctioned (paras. 115-117). In this case, although criminal proceedings were instituted against the coastguards involved (para. 121), and although the applicants testified as witnesses in this context (para. 122), there were tremendous problems regarding the interpretation of their statements (para.123). Proceedings for perjury had been instituted against the interpreters involved and one of them had already been found to not speak the applicants’ language (ibid). Although the authorities were aware of these problems, the misinterpreted depositions remained an integral and determinative part of the criminal case, until it was closed by the prosecutor (paras. 123-124). Furthermore, although the prosecutor granted the applicants’ request for the examination of the fishing vessel by experts, their adequate participation in this examination was doubtful (para. 126). Against this background, the ECtHR found the authorities’ attempts to shed light on the circumstances of the sinking inadequate and concluded that the procedural aspect of Article 2 had been breached (paras. 127 -128).

Regarding the alleged violation of the substantive aspect of Article 2, the Court observed that upon its arrival to the scene, the crew of the Greek Coast Guard’s boat had undoubtedly became aware of the adverse weather conditions and the fishing vessel’s condition (para. 159). It further noted that there was no explanation as to how the crew intended to rescue the persons with a speedboat that lacked the necessary rescue equipment and as to why they requested no additional assistance (e.g. a more suitable boat) from the competent authorities (para. 160). Regarding the Government’s allegation that the capsizing of the fishing vessel had occurred as a result of the passengers’ panic, after the anchor point at the bow of the vessel was torn off following the Coast Guard’s first attempt of towing, the Court found that this panic was expected and could not explain the Coast Guard’s second attempt to tow the vessel under these circumstances (para. 161).

The Court further stressed that time is of paramount importance in cases of drowning (para. 162). However, although by 02:16 the vessel had sunk completely and some of the applicants’ relatives were trapped in its cabin underwater, the search centre was only informed of the incident at 02:13, when the vessel was already half-sunk (ibid). Similarly, an alert message, for vessels in the vicinity to hurry to the scene, was only transmitted nine minutes after the sinking, while other available national rescue resources arrived on the scene after over an hour (ibid). Thus, the Court concluded that the national authorities had not done everything that could reasonably be expected of them to prevent the applicants’ loss of life. Therefore, they had failed to fulfil their substantive obligations under ECHR Article 2.

However, the shipwreck survivors’ suffering did not end there. After their arrival in Farmakonisi, 12 of the applicants were taken to an open-air basketball court, ordered to undress and subjected to a body search in front of the other survivors and a group of soldiers (para. 194).  Examining the applicants’ claim of inhuman and degrading treatment, the Court noted that the body searches, carried out in such conditions, were not based on a compelling security need (para 197) and found a breach of ECHR Article 3.

The Potential Misuse of the Court’s Dicta

The above pronouncements certainly call for a celebratory moment. Concerned minds, however, could see some of the Court’s dicta on the allegedly attempted refoulement, which underpinned the whole incident, differently.

While establishing the facts regarding the violation of the substantive aspect of Article 2, for which the criterion of proof ‘beyond reasonable doubt’ had to be met (para. 153), the Court underlined that it could not rule on certain specific details about whether the applicants were the victims of an attempted refoulement to the Turkish coast. This was because certain key elements of the applicants’ complaint could not be proven beyond reasonable doubt as was required (para. 155). As the Court further stressed, this stemmed largely from the absence of a thorough and effective investigation by the national authorities into the incident – amounting to a violation of the the procedural aspect of Article 2 (para. 155).  Against this background, the Court proceeded to examine the applicants’ complaint based on some of the facts that were not disputed between the parties or were undeniably apparent from the material in the file and the decisions of the domestic courts (para. 156). 

In doing so, the Court has indirectly highlighted the adverse impacts of inadequate national investigations on the substance of disputes arising from allegations of refoulement on the basis of Article 3. Indeed, as with complaints under Article 2, the standard which the Court adopts in assessing evidence of violations of Article 3 is one of ‘beyond reasonable doubt’ – following from the coexistence of sufficiently strong, clear and concordant inferences, or of similar unrebutted presumptions of fact (Ireland v. the United Kingdom, para. 161). In these cases, the burden of proof is not reversed and the said standard must be met in all cases, regardless of the fact that there is a tremendous imbalance between the national authorities, which can conduct an investigation and clarify (to the extent that they please) the facts, and protection seekers, whose involvement in the investigation may even be precluded by the State (see para. 126 of this judgement).

In this sense, in cases of alleged attempted refoulement, if the absence of a thorough and effective investigation by the national authorities precludes relevant facts from meeting the said criterion of proof, and if factual details are disputed between the parties or less apparent from the material in the file at the disposal of the Court, only violations of the procedural obligations stemming from Article 3 can be found. Most of all, through the above referenced dicta on the impossibility to rule on whether an attempted refoulement had occurred due to the absence of a thorough and effective investigation by the national authorities (para. 155), the Court seems to have indirectly shown States, how they can evade responsibility for ‘search and refouler’ operations at sea, even when jurisdictional obstacles do not shield them from the Court’s reach. To this end, ineffective investigations are key! The more inadequate and ineffective the national investigations, the lesser the chances of an acknowledgement of the State’s responsibility for refoulement.

Notably, as the applicants had not brought a claim specifically regarding the attempted refoulement – most likely due to the above proof-related obstacles – but sufficed themselves to claims regarding the protection of life, the investigation of loss of life and inhuman treatment – an assessment of whether a violation of the principle of non-refoulement had occurred was not within the Court’s competence. Thus, the passages referenced above, where the Court underlined that it could not rule on whether an attempted refoulement had taken place, could have been omitted from the Court’s analysis without any impact on the substance of its jurisprudential work and were not a essential for the assessment of the applicants’ other claims.

Instead, this frankly unnecessary, dicta could impact States’ practice on refoulement. Indeed, it is clear that States are prone to take the Court’s pronouncements to heart – particularly when they can serve to help alleviate their struggles in coping with migration movements. Most recently, this was evident following the deadly migrant rush at the Moroccan-Spanish borders, where around 2,000 migrants, cut a fence with shears and sought to enter Melilla. Just as the Court had acknowledged the protection-seekers’ own culpable conduct (A.A. and Others v. North Macedonia, para. 123) and their use of force or misuse of their large numbers in order to enter (N.D. and N.T. v Spain, para. 201) as justifications for their collective expulsion, in some highly criticised (see here, here, here and here) judgements, the Spanish prime minister referred to the protection-seekers’ attempts to enter as an attack on Spain’s territorial integrity and attempted to shift the responsibility for the deadly event to ‘the mafias that traffic in human beings.’ In this sense, every dictum counts, and as some of them have already influenced States’ responses to migratory flows, the ones referenced above could do so too.


Reading the Safi and Others v. Greece judgement, one gets the feeling that justice is being served. The State could not frame the shipwreck survivors for the loss of lives resulting from its inadequate response to the tragedy and could not evade responsibility for violating the Convention. It can only be hoped that pressures for adequate investigations in reports of refoulements will be fruitful and that difficulties relating to the standard of proof will not overshadow similar violations in the future.

Print Friendly, PDF & Email

Related posts

Leave a Reply

Your email address will not be published. Required fields are marked *

1 Trackback