Asking migrants to document their killing: Almukhlas and Al-Maliki v. Greece

by Alex Geraki Trimi

The case of Almukhlas and Al-Maliki v. Greece concerned the interception of a yacht carrying 94 migrants near the Greek island of Symi by members of the Greek Coast Guard and Frontex (under the Joint operation Poseidon) that resulted in the killing of a child of Iraqi nationality, Ameer, by the shootings carried out by a member of the Greek Coast Guard and head of the Symi Port Authority, V.M. Although the Court condemned Greece on other grounds, it did not find a violation of Art. 2 for excessive use of force. This post discusses the mechanism behind and the implications of this conclusion.

What happened in Almukhlas and Al-Maliki v. Greece and what did the Court say?

The incident started with a Frontex vessel identifying the yacht, signalling it to stop for an inspection to which the yacht did not respond, and then chasing it through dangerous manoeuvres until a Frontex guard jumped on the yacht to immobilise it by force. This led to what appears as a particularly chaotic incident that involved physical violence inflicted by the two skippers of the boat upon the Frontex guard on their vessel, and repeated shootings on part of the Frontex guard and the Greek coastguards, who had arrived as reinforcements. V.M. fired several shots, first to warn and then to immobilise the skippers, with the last two bullets aiming at the feet of one of them and penetrating the thin wall of the yacht only to reach the cabin where the migrants were concentrated, lethally wounding young Ameer. The interception was carried out in a way that clearly illustrated that the priority of the coastguards was the capturing of the potential ‘traffickers’, while little regard was given to the steps that needed to be taken to protect the life of the yacht’s passengers. The investigation that was carried out in Greece following the killing of Ameer resulted in the dismissal of the case against V.M.: the prosecutor concluded that the use of force was justified by self-defence due to the danger posed by the two skippers to the Frontex Guard. At the same time, the criminal proceedings for the two skippers were concluded, with them being convicted for various offences but acquitted for the charges that entailed them inflicting life-threatening danger upon the Frontex guard. The parents of Ameer brought the case to the European Court of Human Rights, claiming a breach of Art. 2 both under the procedural limb in regards to the lack of an effective investigation, and in regards to the substantive part, because the operation was not planned or carried out in a way to minimise risk of life, and because the use of force applied was not absolutely necessary.

The Court concluded that Art. 2 of the Convention was breached in two grounds: Under its procedural limb, the Court found that there was no effective investigation about the killing of Ameer, because of numerous shortcomings in the collection of evidence (such as eyewitness testimonies), but most importantly because the investigation was carried out by the colleagues of the member of the Greek Coast Guard (and on part by V.M. himself), and so it was not deemed as independent under the meaning of Art. 2. Under the substantial limb of Art. 2, the Court concluded that the operation to intercept the boat had not been carried out in such a way as to minimise the use of lethal force and the possible risks to the life of the applicants’ son. However, the Court found that it cannot conclude that the use of force which resulted to the killing of Ameer was not absolutely necessary, because the facts of the case could not be established beyond any reasonable doubt. Judge Hüseynov disagreed with the majority on the last point, considering the manner in which the majority reached their conclusion ‘particularly problematic’ (para 2). The analysis for the purposes of this post will focus on this point in the reasoning, which furthers a trend of the ECtHR to bend the rules regarding evidence assessment when it comes to cases of border violence, making justice impossible for migrants.

Rule bending that prevents justice

The reasoning gives very few hints that something is off until the very last paragraph of the judgment, where the Court concludes that it cannot find a violation of Art. 2 in regard to the use of force applied, because ‘there is insufficient evidence to establish some of the facts beyond reasonable doubt’ and ‘it has not been established that unnecessarily excessive force was used’ (para 156 – unofficial translation, same for all quotations). This implies that, contrary to established rules of procedure (and every notion of common sense), the burden of proof lies with the applicants to establish that the lethal use of force was not absolutely necessary. This particularly comes as a surprise because it follows a lengthy reasoning which concludes that the Government has unequivocally violated its obligations under Art. 2 to a) conduct an effective investigation about the use of forceapplied in the incident, and b) conduct the border guarding operation in a way that minimises the risk to life. This loud discord at the very end of the judgment by the majority fortunately triggered the dissent of Judge Hüseynov, whose opinion explains why allocating the burden of proof on the applicants in respect to the use of force is ‘methodologically incorrect’ (para 3).

The Judge explains that according to the rules of procedure, the burden of proof lies with the Government to prove that the use of force was absolutely necessary under the meaning of Art. 2 (2), especially when the Court cannot establish the exact circumstances of the case for reasons that are objectively attributable to the State (such as the failure to conduct an effective investigation) (para 5). Indeed, the Court’s jurisprudence could not be clearer in that regard: in cases of lethal use of force by agents of the State, the burden of proof rests on the authorities to show that the lethal force used was no more than absolutely necessary and strictly proportionate to the achievement of the aims set out in Art. 2 (2) (see, among others, Cangöz and Others v. Turkey, para 106; Yukhymovych v. Ukraine paras 75 and Yengibaryan and Simonyan v. Armenia, para 117). On top of that, the Court has ruled that in all cases where the Court is unable to establish the exact circumstances of a case for reasons objectively attributable to the State authorities, or where the events lie partially or wholly in the exclusive knowledge of the State, it is for the respondent Government to explain, in a satisfactory and convincing manner, the sequence of events and to exhibit solid evidence that can refute the applicant’s allegations (Salman v. Turkey, para 100; Yengibaryan para 117 and Yukhymovych para 74). Despite such well-established precedent, the Court chose to invoke a generic statement on the burden of proof, which stated that ‘the allocation of the burden of proof [is] intrinsically linked to the specificity of the facts, the nature of the allegation made and the treaty right at stake’ (para 141) from a passage of a judgment  assessing a violation of Art.14 (in conjunction with Art. 2) and not directly the lethal force used by the authorities. Lastly, the Court did not even account for, nor explained the reasoning behind allocating the burden of proof to the applicants in showing that the use of lethal force was not absolutely necessary; it just jumped to the conclusion that the burden of proof had not been discharged by the applicants. Although this is the standard modus operandi of the Court when it comes to questionable juridical choices, it is notable that it happened in a case showcasing a dissent: during the deliberation process the majority must have been confronted with the well-substantiated opinion that the burden of proof should lie with the Government, and still did not provide a justification for going with the contrary.

This unjustified deviation from the evidentiary rule led to the denial of a truth that everybody can see, obstructing any sense of justice for the killing of Ameer. The Greek authorities had exclusive access to evidence of the crime scene (a confiscated vessel), while the investigation was conducted in a compromised way, by the very members of the Coast Guard involved in the operation under question: potential key eyewitnesses were ordered to leave the territory, witness testimonies were disputed by the witnesses, and there was an effort to conceal one of the two potentially lethal shots (paras 99, 100, and 112). Despite total control over the process of evidence collection, the narrative of the authorities that justifies the lethal use of force as necessary because of the imminent danger of life in which the Frontex guard was found, remained completely unfounded by evidence, to the extent that it was dismissed by the domestic Criminal Court. Specifically, there was no forensic evidence to back up the claim that one of the skippers had grabbed the gun of the Frontex guard and had sprayed him with flammable liquid, threatening to light him on fire. These facts were acknowledged by the Court in its assessment of the State’s obligation to conduct an effective investigation (paras 47, 49, 59 and 141) but were not considered relevant for the assessment of the lethal use of force. It is apparent that if the Court had applied the rules of procedure behind the evidentiary assessment of the use of lethal force by State agents, the Greek government would have utterly failed to discharge its burden of proof. The only way to avoid finding a violation of Art. 2 (2) in this case was to do what the Court did: to allocate the burden of proof on the applicants and require them to do the impossible: to gather direct evidence to disprove the unsubstantiated account of the government and show that the lethal use of force was not absolutely necessary.

Part of a systematic practice of denying the truth of border operations

The legal analysis of the judgment (as offered by Judge Hüseynov himself) clearly shows that there has been an unsubstantiated deviation from the relevant rules of procedure that lead to an unjust outcome; this is not a hard exercise given the circumstances of the case. However, what should not be missing from the analysis of this case is picturing this deviation in the wider context the Court’s jurisprudence when it comes to the evidentiary assessment of border violence against migrants: then, the arbitrary shift of the burden of proof of the last paragraph might not seem like a discord, but rather as a familiar – albeit ominous – tune.

The Court showcases a trend of bending the rules of evidentiary assessment to the migrants’ detriment in cases of border violence. Baranowska has argued that the Court does not shift the burden of proof, as it should, in cases of pushbacks, requiring from the applicants the impossible task of documenting their concealed expulsion. It has also been observed (see Alex Geraki Trimi and Eleni Karageorgiou, ‘Tales of Agency and Exclusion: Deconstructing the ‘Own Culpable Conduct’ Requirement in the ECtHR Migration-related Jurisprudence’ EJIL, accepted in press) that when the Court examines cases of collective expulsions of irregularly entering migrants, through applying its standard exception of ‘own culpable conduct’, it incorrectly requires from the applicants to prove that there were not available means of legal entry in order to recognise their procedural safeguards under Art. 4 Prot. 4 (N.D. and N.T. v. Spain, para 217; A.A. and Others v. North Macedonia, para 122). In the same spirit, in cases of border violence the Court disregards evidence submitted by non-State sources, accepting as direct evidence only those produced by the State against which the complaint is made – thus operating within a strong State-favouring bias when establishing the facts of the case (Alpes and Baranowska, 238). Even in the recent cases of A.R.E. and G.R.J. v Greece, where the Court took the step of acknowledging pushbacks as a systematic practice of the Greek government, it then refused to lower the evidentiary requirements accordingly, still requiring on part of the applicants, an account that is ‘detailed, specific and coherent, i.e. free of contradictions – with concrete, detailed and concordant evidence’ (A.R.E. para 217 and G.R.J. para 182)in order to shift the burden of proof to the respondent State. These instances showcase a strong pattern of the Court diverging from its set principles in cases relating to border violence against migrants, always in favour of the States. In a wider climate where the Court has been criticised multiple times for upholding State prerogatives of migration management, overlooking its rights-centric mandate (see for example here and here), this has rightfully opened a broader discussion on the politics of legal facts, the independence of the Court’s Judges from government officials and, ultimately, about the role of the Court in the construction of public truths (Alpes and Baranowska, p. 244).

In the case of Ameer’s killing, the Court followed this worrying pattern by bending the rules of procedure in a way that contravenes reason, warranting for the first time internal disagreement – i.e. the dissent of Judge Hüseynov. The Court has indeed taken this trend a step too far: to ask from the parents of Ameer to document the killing of their son during a border surveillance operation in order to prove that their son’s death was not absolutely necessary and proportionate to the objectives of the operation normalises the killing of migrants at borders.

Why does this matter so much?

It is true that this part of the reasoning comes after the unequivocal condemnation of Greece for an ineffective investigation and conducting the operation in a way that did not minimise the risk to life. However, the denial of the Court to find a violation on the lethal use of force by bending the rules of procedure matters for two reasons. First, it does not bring justice to the applicants: the shortcomings in the planning of the operation and the subsequent investigation are recognised, but still the Court (and everyone else, really, given the unsuccessful domestic procedures) refused to find the authorities responsible for the killing of Ameer. The judgment makes room for the narrative that the killing of Ameer was absolutely necessary and proportionate, and therefore compliant with the Convention. Second, for the same reasons, this conclusion of the judgment brings with it a promise of impunity for killings of migrants in the context of border surveillance operations. The threshold of legitimacy under Art. 2 over such operations becomes much lower, since the government only needs to create the impression of a careful planning of the operation and of an effective investigation, but does not need to prove that the killing was absolutely necessary and proportionate, under the meaning of Art. 2 (2). This is a message with special political importance in the current context of State practices at borders, where, on the one hand governments attempt to legitimise violence against migrants as having the objective of combatting cross-border crime, and on the other, the racist violence on part of the authorities against migrants is well-documented (for the case of Greece, see this, this and this). At the end of the day, it all comes down to the Court’s standing before the rights of migrants: can the Court claim that it is an institution that delivers justice for all?