Undermining protection standards in pushbacks cases: The ECtHR in A.R.E. v. Greece and G.R.J. v. Greece

Stephanie Motz and Annina Mullis

On 7 January 2025, the European Court of Human Rights (Court/ECtHR) published its findings in A.R.E. v. Greece and G.R.J. v. Greece. In these two cases, the Court adjudicated for the first time specifically on pushback allegations at the hands of Greek authorities. Both applications were part of a series of 32 proceedings filed with the Strasbourg Court between December 2020 and August 2021 and communicated on the same day in December 2021, all concerning the illegal collective expulsion of refugees from Greek territory or territorial waters towards Turkey. 

The Court had selected these two cases for one of its rare public Chamber hearings, which the authors attended on 4 June 2024. The hearing was marked by the Greek government’s complete denial of both the individual facts and the existence of any pushback practice as such. While the Court in A.R.E. concluded that Greece had violated the ECHR, it deemed G.R.J.’s application inadmissible ratione personae. The judgment in A.R.E.—finding violations of Article 3 (prohibition of torture, including refoulement) and Article 13 taken together with Articles 2 and 3 (right to an effective remedy) and Article 5 (right to liberty)—and the inadmissibility decision in G.R.J. likely signal the Court’s future approach in highly contentious cases concerning refoulement allegations contrary to Article 3 in particular. 

Summary of the Facts

The applicants in A.R.E. and G.R.J. (the Applicants) had both claimed that they had crossed the Turkey-Greece border in order to apply for international protection in Greece, and that Greek security forces had arrested them shortly after their arrival and pushed them back across the border towards Turkey.  

A.R.E.is a Turkish national and alleged Gülen-member (aka FETÖ/PDY), who had just been released from 28 months of detention in Turkey. She claimed to have entered mainland Greece on 4 May 2019 by crossing the Evros river together with two compatriots. A.R.E.’s claim was substantiated by an unusual amount of evidence: She managed to share her WhatsApp live location with her brother throughout the dangerous crossing and sent him various photographs and videos documenting her presence in Greece. Additionally, A.R.E.’s brother contacted a journalist in Turkey, as well as the UNHCR in Greece and a Greek lawyer, who later joined A.R.E. and her two compatriots and took photos of them. After the police had arrested A.R.E. and her two compatriots in front of the lawyer, they were searched and stripped of their belongings including their mobile phones, detained and then pushed back across the Evros river later that night together with 28 other refugees, despite having repeatedly stated their intention to seek asylum. Upon her return to Turkey, A.R.E. was rearrested and imprisoned for a further two and a half years for violating her bail and travel ban by attempting to flee to Greece.  

G.R.J. was a 15-year-old Afghan national at the time of the relevant events. He claimed to have entered Greece on 8 September 2020, arriving by boat together with a group of refugees on the Greek island of Samos. The group had contacted the NGO Aegean Boat Report, which in turn informed the Greek port authority. G.R.J. and another minor left the group in order to find help. They reached the refugee camp Vathy, sought to register themselves and stated their wish to claim asylum. Officers told them they would be taken to a different camp for Covid-quarantine first, but instead the police took them to the port and put them onto a coast guard vessel, after their belongings including mobile phones had been confiscated. In the middle of the sea, G.R.J. and the other minor were forced onto a dinghy without engine or paddles and left to drift at sea. The Turkish coast guard eventually took them back to Turkey, where they met the rest of the group in the Turkish coast guard station, following another pushback the night before. About a year later, G.R.J. succeeded in crossing into Greece and requesting asylum, resulting in his recognition as a refugee. 

Oral Pleadings: The Government’s Complete Pushback Denial

At the oral hearing in Strasbourg, it was striking how the Greek government continued to completely deny the existence of any pushbacks at the hands of Greek authorities, disregarding—even discrediting—the wealth of reports by national organisations (see e.g. the reports of the National  Commission for Human Rights’ Recording Mechanism of Informal Forced Returns), intergovernmental organisations (see e.g. the CPT reports of 2020 and of 2024 or the UN Special Rapporteur on the human rights of migrants report 2022) and NGOs (see e.g. the Third Party Intervention of Border Violence Monitoring Network), all of which documented a systematic pushback practice at the Greece-Turkey border. Equally, the government denied that either of the Applicants had entered Greek territory on the alleged dates (G.R.J. undisputedly managed to enter and claim asylum in Greece about a year later). The lack of registration of their names at the time of the claimed events, so the government argued, demonstrated that they had in fact not entered Greece on the alleged dates. This reasoning was based  on the government’s assertion that every applicant for international protection in Greece was immediately referred to the relevant authority for registration. 

Much of the oral pleadings of the applicants therefore focused on the evidential material demonstrating their presence in Greece on the relevant dates and in particular the analysis of metadata of pictures, videos and conversations on WhatsApp. This was rendered more difficult by the fact that— consistent with a general modus operandi of pushbacks by Greek authorities—the Applicants’ mobile phones had been confiscated by the Greek police. 

Summary of the Judgment

According to the Court, it was the first time in a recent expulsion case that the Court was confronted with a complete denial of the facts, including the existence of Greek pushbacks at all, the claimed incident and even the presence of the Applicants on Greek soil (A.R.E., paras. 205-207; G.R.J., paras. 170-172). In other cases, material aspects of the case—but not the facts in their entirety—had been disputed, as for instance in N.D. and N.T. v. Spain the presence of the applicants amongst the group of people who were collectively expelled, but not the collective expulsion as such, or in M.K. and Ors v. Poland the applicants’ expression of their wish to claim asylum, but not their presence at the border. Because of this blanket denial of all facts, the Court considered it appropriate to apply the principles developed in the context of secret detention cases (A.R.E., paras. 208-211; G.R.J., paras. 173-176). The standard of proof incumbent on the Applicants was thus one ‘beyond reasonable doubt’, which could be discharged by a bundle of evidence or ‘sufficiently serious, precise and concordant’ non-refuted presumptions (A.R.E., para. 209; G.R.J., para. 174). According to the Court, strong presumptions would arise in contexts, in which the Contracting Party has exclusive knowledge of relevant evidence, as is the case with bodily harm or death in detention. In such situations, the mere facts shift the burden of proof onto the authorities to provide a satisfactory and convincing explanation for them and it is incumbent on them to provide the Court with all essential documents (A.R.E., paras. 210-211; G.R.J., paras. 175-176). 

Given the overwhelming evidence of a systematic pushback practice in Greece, the Court in the present pushback cases first examined whether such a practice existed and concluded that at the two dates alleged in the Applicants’ proceedings, there were serious indications to presume that Greece operated systematic pushbacks at its border with Turkey, which Greece had failed to provide a satisfactory and convincing explanation for (A.R.E., para. 229; G.R.J., para. 190). 

Having found a systematic pushback practice on the claimed dates, the Court further required the Applicants to establish that their claimed refoulement was linked to that practice by substantiating their accounts, which had to be ‘detailed, specific and coherent, i.e. free of contradictions, with concrete, detailed and concordant evidence’. Then the burden of proof would shift onto the Greek government (A.R.E., para. 217; G.R.J., para. 182). 

A.R.E. had sufficiently substantiated her account, especially on the basis of the Turkish court documentation following her arrest upon removal to Turkey (A.R.E., paras. 237-242), and the government had failed to provide a convincing alternative explanation for her presence in Greece and return back to Turkey. G.R.J.’s account, however, had not been sufficiently substantiated, although it corresponded with the modus operandi set out in the numerous reports. In particular, G.R.J. had not been able to adduce official documentation demonstrating his presence in Greece or his pushback to Turkey nor audiovisual evidence of his presence in Greece. The main documentary evidence—the Turkish coast guard publications concerning the rescue of a dinghy with two persons on the day of the pushback—had failed to identify by name the two persons they had rescued, and was thus considered by the Court not to corroborate the Applicant’s account that he had been one of them (G.R.J., paras. 191, 196-197, 205-217). 

Comment 

The authors certainly welcome the Court’s finding of a systematic pushback practice in Greece at the relevant time in both cases. Specifically, the Court found that ‘in light of the large number, diversity and concordance of the relevant sources, … there were serious indications to suggest that, at the time of the alleged events, there was a systematic practice of refoulement by the Greek authorities of third-country nationals … to Turkey’, which the government had failed to refute by providing a satisfactory and convincing alternative explanation (A.R.E., para. 229; G.R.J., para. 190). However, it is disappointing that the ECtHR, although examining reports and statements from 2018 until 2024 (A.R.E., paras. 138-168; G.R.J., paras. 123-140), limited this conclusion to the dates of the claimed incidents and refrained from any obiter dicta concerning the Greek pushback practice more generally. Further, as discussed below, the Court does not seem to attribute significant procedural weight to this conclusion.

The Chamber hearing held in June 2024 left no doubt that the assessment of evidence and the establishment of facts, rather than legal questions, play a key role in pushback cases (as also criticised by Kienzle and Riemer). So the establishment of an illegal systematic practice had little legal bearing on the division of the burden of proof, the Court in both proceedings requiring very high quality evidence as corroboration of the individual claims. While in previous refoulement cases, like N.D. and N.T. v. Spain (paras. 85-88), the provision of a coherent account was sufficient as prima facie evidence, the Court applies extreme caution in cases, in which the states completely deny all allegations (as for instance in M.H. and Ors v. Croatia at paras. 269-275). A.R.E. had provided such a consistent account, which in addition corresponded to the established modus operandi of the Greek authorities, yet the Court required additional documentary evidence to corroborate her claim (at paras. 230-231). However, once a systematic refoulement practice is established, the provision of a coherent account in itself should suffice to shift the burden of proof upon the government (see also on this Baranowska and Jill Alpes and Baranowska). 

In addition, even where applicants may not have provided a fully coherent account, the Court could make more use of its powers under Art. 38 ECHR and Rules 44A-44C by requiring governments to provide evidence to counter the allegations made (as suggested by Kienzle). For instance, in G.R.J.’s case, there was no explanation as to what had happened to the group of refugees, with whom G.R.J. had claimed to have arrived on Samos and who had been in direct contact with Aegean Boat Report documenting their presence on Samos with audiovisual material, and who had purportedly all been pushed back to Turkey. The Greek government was never requested to provide, e.g. evidence of the registration of a group of refugees on the relevant date, despite the prima facie evidence that such a group had reached Samos. Yet, the Court normally recognises that it is incumbent upon governments to provide evidence of facts, which only the government can prove (A.R.E., paras. 210-211; G.R.J., paras. 175-176). This is particularly relevant in proceedings, in which the lack of official documentation is part of the modus operandi, as is the case in pushback cases (as also suggested by Baranowska who draws an analogy to enforced disappearances). 

Furthermore, the Greek government had advanced questionable arguments in its defence: For instance, the government had asserted that the two refugees in the motorless dinghy, whom the Turkish coast guard had reportedly rescued (and which G.R.J. had claimed to be one of), had in fact been attempting to cross from Turkey to Greece, rather than being pushed back. The Court considered this argument unconvincing, given that the Turkish coast guard had found the dinghy without engine or paddles (para. 195). Yet, none of the missing explanations on the Greek government’s part for facts within its exclusive knowledge and none of the patently unconvincing submissions led to a presumption against the government (as suggested by the Court, see A.R.E., paras. 210-211; G.R.J., paras. 175-176). Instead, the Court declared G.R.J.’s case inadmissible ratione personae, not even deciding it on the merits (as criticised by Azarova and Magugliani).

Moreover, the Greek government’s systemic failure to investigate pushback incidents, which has been described as ‘the standard practice in Greece’, should have had an impact on the division of the burden of proof. As submitted by Third Party Interveners, and effectively confirmed by the Court’s finding in A.R.E. of a violation of Article 13, there was no domestic remedy which would have provided an effective investigation into the alleged facts. In fact, the Court in A.R.E. found that all Greek criminal investigations into refoulement complaints to date had remained completely ineffective (at paras. 198-199). In G.R.J.’s case, the Court expressly left open the question of exhaustion of domestic remedies—challenged by the Greek government as no criminal complaint had been lodged domestically—in relation to which the Applicant had also argued that no effective remedy existed (at paras. 146-147, 226). Official data obtained last year in both the European and Greek Parliament illustrate that no effective remedy was available (also summarised in paras. 13-15 of the GCR Third Party Intervention in  Muhammad v Greece). The shift of the burden of proof onto the Greek government—once a systematic pushback practice and a systematic failure to conduct criminal investigations had been found—would have been an effective procedural tool in the Court’s repertoire to counter this systematic refusal to investigate pushback incidents. Instead, the government’s tactics of denial and deflection have, to an extent, been rewarded by the inadmissibility decision in the case of G.R.J., thereby undermining protection standards for refugees in Europe. 

Outlook 

The risks of the Court’s approach have been predicted by Katsoni: The more inadequate and ineffective domestic investigations—and, one might add, the more absolute the denial of any border violence practice—the lesser the chances of an acknowledgment of the State’s responsibility for refoulement. Concerns about the implications of this approach for future proceedings have already been expressed by Baranowska in the context of the ECtHR hearings in H.M.M. and Ors. v. Latvia, R.A. and Ors. v. Poland and C.O.C.G. and Ors. v. Lithuania and more generally in relation to future ECtHR proceedings on border violence by De Coninck. At a time when pushback practices are at a high across the EU’s external borders, the Strasbourg Court’s role as the ultimate guardian of human rights in Europe is more important than ever. As Hannah Arendt put it in 1951, totalitarian rule succeeds if ‘the distinction between fact and fiction…, true and false…, no longer exists.’ The steadfast protection of the absolute prohibition on torture and refoulement, which the Court has upheld in difficult contexts in the past (see e.g. Saadi v. Italy), will be crucial in order to counter these current European state strategies of blanket denial and deflection.