Pushbacks and Lawlessness

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Dozens of cases before the European Court of Human Rights claim that Greek authorities are engaged in a policy of secret returns of persons seeking asylum back to Turkey, or ‘pushbacks’. Α post on this blog, ‘Pushbacks as Euphemism’ by Niamh Keady-Tabbai and Itamar Mann drew attenttion to the alleged ‘driftbacks’ in the Aegean. These, however, are only one part of a larger picture, because the current allegations concern land borders as well. The Greek government denies that such events take place. It accuses NGOs, foreign governments and ‘trafficking networks’ of inventing these stories. Nevertheless, the Greek Ombudsman’s ‘interim report on allegations of forced expulsions’, which is the only official investigation ever to have taken place in Greece on these matters, concluded in January 2021 that the allegations it had seen were credible and that the number and the standard features of the reported pushbacks caused ‘alarm’, which was not dispelled by the response of the Greek authorities. Similar conclusions, more strongly worded, were also reached by Amnesty International, the Council of Europe Commissioner of Human Rights, the UNHCR and numerous NGOs, including the Aegean Boat Report. These findings have been corroborated by news reports from various inernational news organisations. To make matters worse, the Greek Prime Minister boasts that the numbers of migrants are low because his government is guarding the borders, while he accepts that the coast guard ‘intercepts’ boats at sea. This statement would be alarming enough on its own, but there also appears to be a discrepancy of over 20000 people in the numbers ‘recorded as rescued’ and the numbers registered as persons seeking protection according to official figures for 2021.  

If true, these pushbacks would be a violation of refugee law, EU and Greek law. Would they also be a violation of the European Convention on Human Rights? Collective expulsions are prohibited under the fourth protocol to the European Convention on Human Rights. Nevertheless, Greece is the only member of the EU that has not ratified that protocol (which, by contrast, has been ratified by Poland, hence its action at the Belarussian border can be assessed differently, as shown by Louise Majetschak and Lena Rimer in their post ‘Poland’s Power Play at its Borders violates Fundamental Human Rights Law’ in this blog). This does not mean the the Convention is irrelevant, however. Pushbacks may violate other articles of the convention.

According to the available reports, people are apprehended, restrained, detained and expelled without any process of law on a daily basis. Because these events appear to take place in various parts of the country and by very different administrative bodies (the coast guard, the border police, ordinary police, the army, while the police and courts fail to investigate alleged criminal offences) they raise the posibility that they may be the result of a centrally designed policy. If such a policy existed it would ensure impunity for everyone involved. This is all the more so because the borders are extremely carefully monitored by the Greek police and army through various surveillance technologies, including drones, in land and at sea. It is unthinkable that rogue elements would operate at the border without the Greek authorities knowing about them.

Article 3, which prohibits inhuman and degrading treatment, is by now a well established ground in the case of forced expulsions. But the scale and nature of the allegations, brings also into view Articles 5 and 13. If the allegations are true, there must be in place a large scale policy of removing migrants from the due process of law. Such a policy of lawlessness would be similar to the secret detention centres that the CIA set up after 9/11 in various European States and which the Strasbourg Court has strongly condemned in a series of judgments. These cases are not just about the episodes of ill treatment of individuals. They are also about the clandestine framework that was set up to conceal them. A similar lawlessness seems to be at issue today.   

Inhuman and Degrading Treatment: Article 3

The principles applicable to the expulsion of aliens with regard to Article 3 have been summarized in the Grand Chamber’s judgments of Hirsi Jamaa and others v Italy §§ 146-148, JK and others v. Sweden (GC), no.59166/12, 23 August 2016, §§ 77-105 and FG v.Sweden (GC) §§ 110-127 and MK & others v Poland §§ 166-173. The Court set out the general principle in FG v. Sweden at para 110 that:

‘in the context of expulsion, where there are substantial grounds to believe that the person in question, if expelled, would face a real risk of capital punishment, torture, or inhuman or degrading treatment or punishment in the destination country, both Articles 2 and 3 imply that the Contracting State must not expel that person’.

Article 3 protects a person seeking international protection against return to his country of origin not in every case, but only when there are serious and proven grounds for believing that the person concerned will be in danger of a violation of Article 3.

It is important to add, that Article 3 applies not only in the territory of a member state and in its terrotirial waters, but also on the high seas, on board of a ship flying the flag of the member state. Intercepting a boat on the high seas between Italy and Malta and expelling migrants back to Libya was found to be a violation of Article 3 and 13 of the Convention by Italy, in Hirsi Jamaa and others v Italy. When the Greek PM suggested that the coast guard ‘intercepts’ boats as a matter of policy, he may have already admitted that Greece violates Article 3 at sea.

But this is only the beginning of the way in which the ECHR appiles to the current allegations concerning Greece. The Court has consistently held that Article 3 creates also a procedural obligation on member states to set up an independent investigation of allegations of substantive violations of Article 3. The apparent failure by Greece to investigate allegations of forced expulsion in the weeks and months after they take place may be a distinct violation of Article 3. This is all the more so when a state is accused of orchestrating the violation of human rights in secret. This is what a number of states were accused in the case of secret detention sites in relation to the CIA’s interrogation sites, as for example in cases El‑Masri v the Former Yugoslav Republic of Macedonia, Al Nashiri v. Poland, Application No. 28761/11, 24 July 2014,; and  Husayn (Abu Zubaydah) v. Poland,  Application no. 7511/13, 24 July 2014 and Abu Zubaydah v. Lithuania. In Abu Zubaydah v. Lithuania, the Court set out the general principle as follows (at § 607):

Where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of agents of the respondent State or, likewise, as a result of acts performed by foreign officials with that State’s acquiescence or connivance, that provision, read in conjunction with the Contracting States’ general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and – where appropriate – punishment of those responsible. (…).

The court added that the required investigation ought to be ‘prompt’, ‘thorough’ and ‘independent of the executive’ (§§ 608-609). It is arguable that Greece has already violated the preocedural dimension, irrespective of the substance of the allegations of Article 3.

Deprivation of Liberty – Article 5(1) 

Article 5 is also engaged under these circumstances. The alleged clandestine detention of migrants would be a violation of Article 5(1) if it were done for unlawful purposes. Deprivation of liberty is only lawful under Article 5(1) if it takes place in accordance with a procedure prescribed by law. This principle was also applied by the Court in the cases arising out of the secret detention sites (see El-Masri v. the former Yugoslav Republic of Macedonia § 233; Al Nashiri v. Poland § 529; Belozorov v. Russia and Ukraine § 113). The Court ruled that the absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible, inter alia, with the very purpose of Article 5 of the Convention. Exactly the same conclusion may be drawn in the Greek cases, if the allegations prove to be true in fact.

Effective Remedy: Article 13

Finally, lawlessness entails the absence of any chance of having access to a judicial remedy. The Court has interpreted Article 13 as requiring that there must exist at the domestic level a remedy within the framework of which a competent national body may examine grievances which may be deemed “arguable” under the Convention. The scope of the obligation under Article 13 varies depending on the nature of the Convention complaint, but the remedy must in any event be ‘effective’ in practice as well as in law. In cases of expulsion the remedy must be such that it may ‘prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible’ (Čonka v Belgium § 79). In Hirsi Jamaa this argument was deployed to reject Italy’s submission that the applicants had not exhausted the domestic remedies because they had not started a criminal case in Italy before turning to Strasbourg. The Court replied that even a successful prosecution would not have changed the fact that there had never been a remedy available to suspend the expulsion (see Hirsi Jamaa v Italy, §§ 200-206).

The same principle must apply in the case of the allegations against Greece. The clandestine nature of the alleged expulsions means that the victims will have had no access to any remedy at all. This was also the case in the recent D v Bulgaria §§ 108-116, where a Turkish journalist who had expressed fears of ill-treatment to the Bulgarian border police and explicitly sought asylum in Bulgaria, was expelled to Turkey within hours of his arrest by Bulgarian Police. The Court found that there was a violation of Articles 3 and 13 since D was returned to Turkey ‘immediately’ after the issue of a ‘deportation order’, without the applicant ‘having had the opportunity to understand its content’ so that he was ‘deprived of the possibility offered by domestic law of asking the courts to order the suspension of its execution (D v Bulgaria par. 134). Following the Hirsi Jamaa example, the Court then concluded that in the context of a violation of Article 13 there was no point in going to the domestic courts (at para. 136) and unanimously upheld the Applicant’s claim, even though he had gone straight to Strasbourg. The same principle must also apply to all Greek cases that are now reaching Strasbourg. The allegations against Greece are even more serious, since they suggest that expulsions happen outside any legal process whatsoever. By definition, no remedies are available to those caught up in a web of lawlessness.

Conclusion

Interpreting the Greek pushbacks as cases of state sponsored lawlessness and not merely as discrete episodes of violence, changes the content of the violations at issue under the convention. In both these cases and in the cases of CIA’s secret detention sites, the violation of the Convention lies not merely in the distinct acts of torture or the acts of expulsion, but also in the more serious matter of the planning and execution by the respective governmens of a state-wide framework of lawlessness, designed to guarantee secrecy and impunity for those involved. This is a gross violation of the rule of law.

The existing case law on secret detention sites offers, therefore, a more accurate way in which to understand these actions and a better way in which to plead them before the Strasbourg court. It also opens up the possibility of claiming interim relief for those needeing assistance, not just on the basis of Article 3 but on the basis of Articles 5 and 13. We saw recently that the Court insisted that granting interim measures in a case of Article 3 required concrete evidence of a threat of inhuman treatment in case of expulsion (see Itamar Mann’s illuminating analysis of this issue in ‘A Lost Opportunity for Border Justice’ in this blog). As Mann shows, the possibility of interim remedies under rule 39 becomes illusory, since stranded migrants cannot in practice provide the required evidence to the court. This burdensome requirement disappears, however, if the alleged violations concern Articles 5 and 13 and not 3. A pattern of lawlessness at the border is a violation in itself, irrespecrtive of the risk of persecution at home as required by Article 3. No further evidence is needed, other than the presence of the person in the allegedly lawless zone. This is a simpler ground for the Strasbourg court to issue interim measures under rule 39 State organised lawlessness is the real issue. This is why these grave claims must be investigated thoroughly by domestic and European institutions, without delay.

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