A Lost Opportunity for Border Justice at the European Court of Human Rights

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The European Court of Human Rights is so far failing to provide effective remedies to migrants suffering violations by Greek authorities in the Aegean Sea. For years, commentators have been observing the risk of backsliding from the Court’s role in protecting migrant rights, ostensibly due to “populist” political pressures. But two aspects of the applicable rules, procedural and substantive, have perhaps been more significant in shaping the court’s role in the normalised impunity at Europe’s Southeastern border.

On a procedural level, an important question is when must remedies be available to be effective. On a substantive level, the most basic question of human rights law is at issue, namely: who deserves protection?

Normalised Impunity at Europe’s Southeastern Borders

In March 2020, Greek authorities started using “drift backs” against migrants arriving at the Greek islands by sea. The Hellenic Coast Guard places migrants on unnavigable rafts (often rescue equipment repurposed for inhuman and degrading ends). The rafts are then tugged out to sea and abandoned there. Journalists from major newspapers like Der Spiegel, The Guardian, and The New York Times have reported the harrowing practice. But the most important documentation, which major media outlets relied upon, comes from an NGO called Aegean Boat Report (“ABR”). According to ABR, drift backs have persisted over the last year and a half in considerable rates. ABR concludes its December 2021 report with staggering numbers: “406 people, children, women and men were placed in 26 life rafts and left helplessly drifting at sea by the Hellenic Coast Guard, a systematic use of rescue equipment as a deportation tool.” If true, twenty-six life rafts left at sea in December alone suggests an almost daily routine.

Daria Sartori, a Strasbourg-based lawyer who recently lodged an urgent application to the ECtHR addressing drift-backs, explains in the submission she filed for ABR: “It is self-evident that forcing people […] on dinghies and leaving them adrift on the open sea determines a serious risk for their life and well-being.” Drift backs may constitute violations of the right to life and the prohibition of torture and inhuman and degrading treatment. That these instances have apparently occurred in a widespread and seemingly systematic manner further suggests that they may constitute crimes against humanity. And they happen with the knowledge and disregard of the European border agency, Frontex, which despite multiple legal challenges has refused to suspend its Aegean operations.

How, then, has the Court failed so decisively in providing effective remedies for the victims of drift backs, let alone ending the practice? The experience of litigators who have tried to mobilise the Court provides provisional answers.  

The Infelicitous Timing of Remedies

The procedural aspect of this story is rooted in the temporality of remedies.

First, it takes far too long for a migration case to be decided at the ECtHR. Take for example D. v Bulgaria, a relatively recent decision by the court from 20 July 2021. The decision concerned a Turkish journalist with a political asylum claim who entered Bulgaria in October 2016 on a lorry, and despite presenting the facts of his fear of persecution to authorities, was not granted access to asylum. Bulgaria quickly deported D. back to Turkey. As the European Center for Constitutional and Human Rights (ECCHR) describes the outcome for their client:

“the court clarified that if the state was made aware of facts that could expose an individual to risk of ill-treatment on return in breach of article 3 ECHR (prohibition of torture), it was incumbent on the state to assess such a risk of its own motion. Additionally, the court found the authorities had acted in extreme haste, failing to comply with domestic procedures, and rendering the available remedies redundant so that D was unable to challenge the removal, breaching article 13 ECHR (right to an effective remedy).”

There is good reason to celebrate this decision, especially against the backdrop of the previous ND and NT v Spain (2020). The latter case seemed to signal a more restrictive turn, which can be interpreted as evidence of political influence on the Court. And yet, a seven-year waiting period from violation to result cannot be expected to “remedy” the return of a bona-fide refugee to where she or he may be persecuted. Although long, a seven-year period from breach to remedy may be reasonable in other human rights contexts. But for many asylum seekers it is simply not very helpful. For this reason, lawyers working in the field (myself included) often have a hard time keeping in touch with their clients. After a while, it becomes unclear to migrants and asylum seekers what’s in the process for them. When the rule of law offers so little, they may prefer the meager benefit of living under its radar.

The argument sometimes used within the relevant legal community, that even if a case is no longer relevant for the individual applicant, it will help protect others, is only partially convincing. On a practical level, it is very likely that a late judgment will have rather minor practical purchase, because patterns of border enforcement and border violence tend to change quite quickly. Even a “progressive” judgement may end up striking down an illegal model of enforcement, which has nevertheless already become obsolete. On a more philosophical level, there is a question whether bringing a case with an individual applicant that will clearly not stand to benefit from it, with view of protecting other would-be migrants, is even ethical. There is an uncomfortable affinity between such thinking and the violent deterrence practices that states sometimes employ. In both cases, an individual may be used – knowingly or only partially so – to direct policy towards others who are yet unknown. What kind of justice is this?

Second, on the other side of the spectrum, decisions on interim measures under Rule 39 are made in a way that does not sufficiently regard the urgency in which they sometimes must be submitted. I’m thinking recently of a A and others v Greece, the application quoted above which Sartori submitted on behalf of ABR on 20 January 2022. In this case, Palestinian and Somali individuals feared being drifted-back from one of the Greek islands. ABR therefore helped them apply, from their hiding place in an abandoned street-side hut in Chios, for an interim measure to prevent their drift-back. In bold letters, the Rule 39 application explains: “They do not wish to present themselves to the authorities because they are afraid of being subjected to an unlawful and life-threatening pushback, as it happened in multiple times…”

Once it reached the Court, this application however was not submitted to a judge for decision, because it did not include details the Court’s registry deemed crucial. I address the content of that information directly below. Meanwhile, the important issue is that within current conditions on the Aegean islands, demanding lawyers of comprehensive documentation will likely take too much time, in which the violation that applicants attempt to prevent will already occur. To be clear, I’m not advocating unnecessarily hasty or unfastidious legal work. The point is that with certain kinds of urgency, there needs to be a level of flexibility. Otherwise, the court may not have a role in preventing even grave and systematic human rights violations in the context of border control.

When it comes to interim measures, there is an additional concern: will the state even comply? Potential lack of compliance is not a new phenomenon. In a report from 2012, the European Council for Refugees and Exiles expresses “extreme concern” about a “practice in Russia, whereby a number of applicants have disappeared from the territory despite interim measures granted by the Court and have subsequently been located in the country of return.”  In September, the Court has imposed interim measures directed at Lithuania (as well as Poland, and Latvia) to prevent removals of Afghans nationals. Lithuania, for its own part, proceeded to expel Afghan asylum seekers to Belarus. And on 28 January Serbia ignored an interim measure, and expelled a Bahraini national, in collaboration with Interpol, in a region that has also seen systematic pushbacks.

These instances raise a serious question whether authorities would comply in Greece, and more generally, what can the Court do when domestic authorities do not comply. Since the beginning of the pandemic, when Greece started its drift-back operations, and even earlier, we have seen normalised border violence — including a breakdown in the norm of non-refoulement, in many countries. Surely, the Court cannot be expected to uphold these norms on its own if Council of Europe domestic governments no longer feel obligated. Indeed, advocates seeking to reassert fundamental legal protections for refugees and migrants cannot abandon legal work on the domestic level, as well as community-based campaigns at home. At the same time, simply omitting protections in certain parts of the Courts jurisdiction is also not possible. It amounts to complicity with the underlying violations.

To recapitulate: in some cases, the Court takes too much time for a remedy to be effective. In others, specifically applications for interim measures, the flipside may be true: the Court requires of advocates to take too much time in preparation, in a way that thwarts and renders moot their attempts to stop drift-backs. The process is ill-timed from both its ends.

Refugee Law as a Pretext for Impunity

The information the Court sought to receive in A v Greece, and did not obtain, is information about any asylum claim the applicants may have. The Court’s registry thus responded to the application:

“Unsubstantiated requests for an interim measure within the meaning of Rule 39 are not submitted to a judge for decision. This includes requests, like yours in the present case, where the submissions do not contain a detailed account of the circumstances that led to the departure from the applicants’ country of origin, a statement specifying the grounds on which the applicants’ particular fears of return are based” (emphasis added).

“Fears of return”, in this context, are meant to establish the persecution claim under refugee law, which would render any deportation a violation of the basic rule of non-refoulement.

This demand necessarily adds costly preparation time for lawyers trying to prevent an impending violation. Refugee lawyers are all too familiar with how sensitive and delicate is the process of obtaining statements on persecution. More importantly – in the cases concerning brutalisation in deportation, such as drift-back cases, this is simply not relevant. It makes no difference whether you are a bona-fide asylum seeker or not, in terms of the prohibition of placing you on an unnavigable raft mid-sea; just like it doesn’t really matter if you suffer from a legally recognised “vulnerability”; if you are Afghan, Somali, Palestinian, or belong to any other nationality; or indeed if you are a woman or a man. “Vulnerability” under the Court’s jurisprudence on Article 3 may at best make the violation even more severe. But the lack thereof cannot generate a de-facto immunity. The argument here is that the act of deportation is illegal, as well as the way in which it is commissioned, not (necessarily) its consequences.

What we see here, in other words, is a second major reason, substantive this time, that the Court has failed to respond appropriately to the border violence of so-called “pushbacks”. The Court is using the fundamental rules of refugee law as a pretext to wiggle its way out of general human rights rules that should apply equally to all human beings. When we talk of “pushbacks” in the context of drift backs, even this seemingly protective language may function as euphemism: what is so egregious here is not (only) the fact that migrants are pushed back to where they have come from. It is that they are sent out to sea with disregard to whether they will live or die.

Against the backdrop of such decisions, the fundamental rules of refugee law have become dangerous. They require lawyers to take time they cannot always afford in the preparation of a Rule 39 application for an interim measure. On a more profound level, the principles of refugee law are being weaponised against all categories of migrants. Whether they are refugees or not, all migrants should enjoy the protections that human rights law grants to all persons.

A Missed Opportunity for Justice

The applicants in A v Greece have now been drifted back, precisely as ABR warned would be the case. We do not currently know where they are, nor do we know what has happened to them. European authorities will also not know, for the time being, whether these people have legally recognised persecution claims.Based on their nationalities – ABR has obtained their passports – we can only speculate that they may be exposed to serious human rights violations at home too.

Meanwhile, one can summarise their experience with the ECtHR. The Court has often reiterated that the Convention is intended to guarantee “not theoretical or illusory rights, but rights that are practical and effective” (Scordino v Italy). But “illusory” is a good description of what the Court has offered to these people. They had not been given the chance for protection from a well-documented and heinous human rights violation when it was clearly imminent.

The author is not personally involved as advocate or in any other capacity in any of the cases mentioned above.

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