E.A. and H.A.A. v. Greece: A U-Turn on Reception Conditions in Greek ‘Hotspots’

by Philipp Schönberger¹

The European Court of Human Rights’ (ECtHR) inadmissibility decision in E.A. and H.A.A. v. Greece published on 4 September 2025 marks a potential turning point in its assessment of asylum seekers’ reception conditions in the Greek ‘hotspots.’ The case signals a regressive shift in the Court’s jurisprudence, one that lacks sound justification, but fits within the broader trend of limiting the Convention’s protection for those seeking refuge in Europe. 

Human Rights Regression Amid Political Shifts

The judiciary is not immune to shifts in the political landscape, and the ECtHR is no exception. As an international judicial body, its authority and effectiveness rely heavily on the legitimacy it enjoys in the eyes of the Member States whose policies it is mandated to review. This dependence makes it particularly vulnerable to political pressure. It is therefore unsurprising that the rightward shift in European politics and the associated erosion of democratic norms and the rule of law is leaving its mark on Europe’s central human rights institution. After decades of progressive, rights-expanding interpretations of the Convention under the ‘living instrument’ doctrine, recent developments in the Court’s case-law have triggered concern about a rollback in the European human rights regime.

Although the Grand Chamber has never explicitly overturned a ruling in a rights-restrictive direction, and some judges have maintained that ‘any lowering of the level of protection [was] beyond the scope of the Convention’ (Simeonovi v. Bulgaria, dissenting opinion of Judge Serghides, § 51), recent scholarship has identified a general trend towards limiting safeguards and reversing previously established standards (Helfer and Voeten). 

This ‘walking back of human rights’ is particularly evident in the area of migration, where States’ interests in migration and border control are increasingly outweighing the rights of people on the move. Much of the debate has focused on the Court’s regressive approach to pushbacks at the EU’s external borders, most notably in N.D. and N.T. v. Spain judgment. The limitation of the procedural guarantees under Art. 4 Protocol 4 ECHR was characterized as ‘a serious and unjustified backward step in human rights protection’ (Kalifa and Others v. Italy, dissenting opinion Judge Serghides, § 16), ‘a concession to Member States’ (Riemer, p. 42) and a ‘severe danger to the European project’. Its implications and the development of the following case-law on pushbacks have been extensively discussed, including on this blog (here). More recent developments, such as the lenient evidentiary standards in pushback contexts (see Alpes and Baranowska) and the restrictive interpretation of jurisdiction in S.S. and Others v. Italy (see Moreno-Lax) have further deepened concerns about a ‘rollback of protection against pushbacks’ (Klaus and Kmak). 

However, this jurisprudential shift is not limited to the most visible Grand Chamber decisions on pushbacks. It also manifests in less prominent rulings across different judicial levels. A recent example is provided by the inadmissibility decision in E.A. and H.A.A. v. Greece concerning State obligations under Article 3 ECHR regarding reception conditions for asylum seekers. The following contribution examines that Committee decision and contrasts it with earlier rulings in almost identical cases to illustrate an erosion in the standards on the reception and living conditions for asylum seekers that appears to be intentional. This U-turn is remarkable because it conflicts with the Court’s own standards on case-law consistency developed under Article 6. 

Facts of the Case

E.A. and H.A.A. v. Greece forms part of a series of cases concerning the reception conditions for asylum seekers in the notorious Greek ‘hotspots’, established in 2016 to implement the so-called EU-Turkey Statement.  At their core, these cases allege that the conditions amounted to inhumane and degrading treatment, violating Article 3 ECHR. This particular application was filed by a Syrian woman who arrived on the island of Samos in October 2019 – four months pregnant at the time. She was registered and subjected to a geographic restriction order prohibiting her from leaving the island during her asylum procedure. 

The applicant was left without any meaningful support and was forced to live for eight months in a makeshift shelter in the forest surrounding the Reception and Identification Centre (RIC), commonly referred to as ‘the jungle’. At the time, the Samos RIC was operating at around ten times its official capacity.  The dire conditions in the facility during 2019 and 2020 were well-known and documented in numerous public reports (for a summary, see here). As the Court itself acknowledged, ‘according to reputable international and domestic sources, the situation in Samos RIC during this period was characterised by severe overcrowding, lack of access to medical and sanitary facilities, insufficient food supply, lack of security and high crime rates.’ (M.A. v. Greece, § 12). While full repetition of these conditions is unnecessary here, one example is illustrative: there were only 35 toilets available for 7,453 people (E.A. and H.A.A. v. Greece, §17), meaning the pregnant applicant had to share a toilet with over 200 others. This is more than four times the maximum ratio foreseen under UNHCR’s emergency standards for immediate humanitarian crisis.

In March 2020, during the final month of her pregnancy, the applicant was offered a place within the official reception structure following an interim measure order by the Court. However, as the 25 m² container had to be shared with nine other people and the toilets with countless camp residents, maintaining social distancing during the height of the COVID-19 pandemic was impossible, so she declined the offer. Three days after giving birth at the hospital, the applicant and her newborn returned to the ‘jungle’. They remained there until their relocation to the mainland pursuant to a second interim measure from the ECtHR. Only at that point was their asylum application formally registered. In March 2021, they were finally granted refugee status in Greece.

The Committee Decision

In its decision of 3 July 2025, the Court, sitting as a Committee, dismissed the complaint under Article 3 concerning the applicant’s living conditions as manifestly ill-founded. It concluded that the treatment endured by the applicant did not meet the threshold of severity required to constitute inhuman or degrading treatment.

While the Court acknowledged States’ difficulties at the EU’s external borders with the increasing influx of migrants, it emphasised that these challenges could not justify a breach of Article 3. Nonetheless, it held that it would be ‘artificial to examine the facts of the case without considering the general context in which those facts arose’ (§§ 45–47).

Assessing whether the threshold of severity had been met, the Court found that the applicant’s living conditions were a result of a ‘situation of extreme difficulty confronting the Greek authorities,’ caused by an ‘exceptional and sudden increase in migration flows’ (§ 47). It took brief notice of the applicants’ vulnerabilities as a pregnant woman and her new-born child. However, her ‘unsubstantiated refusal’ to move into a container was interpreted by the Court as an indication that the applicant herself did not perceive the conditions in the ‘jungle’ as sufficiently severe to meet the threshold of Article 3, given that she declined an opportunity to leave an allegedly unbearable situation (§ 50).

Intentional deviation from previous case-law

The decision in E.A. and H.A.A. departs from the Courts’ established jurisprudence on the reception conditions in the Samos RIC. Previous judgments consistently found that the conditions in the facility and the surrounding ‘jungle’ during the relevant period amounted to a violation of Article 3 ECHR. This includes cases involving applicants who were similarly situated to those in E.A. and H.A.A. (see overview in table below).

For instance, in A.D. v. Greece, M.L. v. Greece, and M.B. v. Greece, the applicants were also pregnant women accommodated at the Samos RIC during the same period, but for shorter durations (ranging from three to eight months). Nonetheless, the Court found violations of Article 3. The same conclusion was reached in cases involving unaccompanied minors and individuals with chronic illnesses. Notably, in T.A. and Others the Court even held that the conditions at the time were ‘incompatible with the Convention standards for any individual’ (§ 12). Observers described this jurisprudence as ‘routine handling of routine violations of an absolute human right in Greek hotspots’.

Given the factual parallels, the result in E.A. and H.A.A. is difficult to reconcile with these precedents. The only apparent factual difference lies in the applicant’s refusal to move to a container in March 2020. This, however, cannot plausibly explain the outcome. It is not necessary to revisit the extensive documentation of the unbearable conditions in those containers, as the inference drawn by the Committee directly contradicts its previous assessment of the situation.

Prior to the relocation offer, the applicant had already spent five months living in the ‘jungle’ – a duration previously found sufficient to meet the Article 3 threshold (see table below). Moreover, in M.B. v. Greece, §§ 6-10 the Court found a violation of Article 3 even though the applicant had accepted relocation to a container in March 2020. In other cases involving unaccompanied minors, the applicants had either refused to move to containers or asked to return to the jungle due to the conditions inside  (T.A. v. Greece, §§ 8 and 9) yet the Court still found violations of Article 3. In addition, several interim measures issued in relation to those containers (e.g. here) implied that the conditions constituted an immediate risk of irreparable harm to vulnerable individuals such as pregnant women. Against this backdrop, the Committee’s reasoning, that the applicants’ refusal to move into such a facility undermined her claim under Article 3 is logically inconsistent. 

Applying the same legal standards to nearly identical facts but reaching a different outcome can hardly be dismissed as negligence of an overburdened judicial body either. Two elements rather suggest an intentional shift in the case-law:

First, except for one, all the decisions on reception conditions in Samos issued since 2023 have been delivered by a Committee chaired by judge Mourou-Vikström and with the participation of either Judge Chanturia or Judge Šimáčková (see table below). Given this personal continuity, it is difficult to believe the Committee was unaware of the divergent outcomes in prior rulings on virtually identical facts.

Second, the reasoning of the decision in E.A. and H.A.A. v. Greece conspicuously omits the citation of relevant case-law and contextual materials previously referenced. As A.D. v. Greece was the first case that addressed the living conditions in the Samos RIC, all subsequent judgments cited this decision. In E.A. and H.A.A., however, this foundational case is entirely absent from the decision. Similarly, the materials on the living conditions in the camp previously referenced in the decisions have disappeared. Since A.D. v. Greece, the judgments quoted the Commissioner for Human Rights describing the situation as ‘struggle for survival’, referred to Resolution 2280 (2019) of the CoE Parliamentary Assembly calling for an evacuation of all vulnerable individuals from Samos and revisited the Greek Commission for Human Rights’ report concluding ‘that the reception system had collapsed’ (A.D. v. Greece, §§ 17-20). Later judgments referred to these materials as ‘reputable international and domestic sources’ (M.A. v. Greece, § 12). In E.A. and H.A.A., however, these references disappear entirely. This silence further supports the conclusion that the Committee intentionally altered and downgraded its evaluation of conditions in the Greek ‘hotspots.’

Case-Law Inconsistency as a Rule of Law Concern

The Committee’s U-turn risks crossing the boundaries of a dynamic reinterpretation of the Convention. This is a crucial difference to the trends identified by scholars in other migration-related cases. The judges did not redefine the scope and content of States’ obligations under Article 3 in the context of reception conditions for asylum seekers – a task not covered by the limited mandate of the Committee to apply well-established case law (Article 28). Instead, the Committee applied well-established case-law to almost identical cases with different results.

This unjustified inconsistency conflicts with the Court’s own standards for legal certainty under Article 6. The ECtHR highlighted in numerous decisions that the principle of legal certainty is a fundamental aspect of the rule of law. The persistence of conflicting court decisions can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (Borg v. Malta, § 107). While this does not confer a subjective right to consistent case-law and jurisprudential development is not, in itself, contrary to the proper administration of justice, the Court just recently emphasised the duty to provide substantial justification for departing from previous rulings (Suverénní řád Maltézských v. Czech Republic, § 74). This fair trial standard, however, is not satisfied by the Committee’s final inadmissibility decision in E.A. and H.A.A. v. Greece. The judgment lacks any explanation for the departure from its previous assessment of the compatibility of the conditions in the Samos RIC for pregnant women.

Conclusion 

While the motives behind the Committee’s U-turn remain speculative, the development fits squarely with the general trend of reducing the protection afforded by the Convention to people on the move coupled with mounting pressure on the Court to avoid intervening with national migration policies. Notably, the decision coincides with the controversial letter sent to the Court in May 2025 by nine Member States publicly criticising the ECtHR for overextending the scope of the Convention in migration-related cases. Meanwhile, populist immigration agendas have reignited discussions about withdrawing from the Convention in the United Kingdom. Moreover, EU Member States are actively working on implementing the Common European Asylum System. Since the Greek ‘hotspots’ served as laboratory or blueprint for the border procedures envisioned in the Asylum Procedure Regulations, the Committee’s reassessment of their compatibility with Article 3 may also be seen as an effort to discourage litigation over conditions in future transition centers, signaling to States that Strasbourg will exercise greater self-restraint in this area. 

The coming months will reveal whether the Court will continue its current trajectory in migration-related cases. In addition to the upcoming Grand Chamber decisions on pushbacks in the context of alleged ‘instrumentalization’ (H.M.M. and Others v. Latvia, C.O.C.G. and Others v. Lithuania, R.A. and Others v. Poland), the Court will have ample opportunity to revisit its case-law on the reception and living conditions of asylum-seekers. A number of similar cases are still pending at the Court (e.g. F.A. v. Greece). Their outcome will determine whether E.A. and H.A.A. was just a bump in the road or the turning point in the Courts’ assessment of the Greek ‘hotspots’. In the latter case, the Court should adhere to its own rule-of-law standards on consistent jurisprudence and provide a compelling justification for departing from its previous rulings. In the interest of proper administration of justice, the Court should further take such a decision as a Chamber to enable appeals (Article 43). However, it is to be hoped that E.A. and H.A.A. will remain a singular setback, rather than a permanent retreat in the Court’s commitment to protecting people on the move against inhumane reception conditions. 

Annex 

Decisions of the Fifth Section on cases that address the compatibility of the living conditions in the RIC Samos between 2019 and 2020:

1. The author is grateful to Dr. Lena Riemer and Kilian Schayani for their helpful feedback and comments. ↩︎