From Farmakonisi to Pylos at the ECtHR

In July 2022 the ECtHR published its judgement in the case Safi and others v. Greece, pronouncing on what came to be known as the Farmakonisi shipwreck of 2014. The investigation of the Pylos shipwreck of June 14^th, the second deadliest on record in the Mediterranean since 2015, is still underway. According to what we know now, over 600 men, women and children drowned. Any human rights case on Pylos would bring to the Court aspects of policies it has already reviewed in the Safi case. The ECtHR’s judgement in the Safi case thus provides insights into how the Court will (and should) adjudicate an application by the Pylos survivors. We hope our preliminary analysis will prove helpful for future litigation efforts and help avoid another missed opportunity for justice.

The Farmakonisi Case        

The case of Safi and others V. Greece originated from the sinking of a fishing boat in the Aegean Sea off the island of Farmakonisi. The boat was transporting 27 migrants who sought to enter Greece from Turkey. 11 of the 27 migrants died – including the wives and children of the applicants. The tragic event took place on 20 January 2014 and the application with the ECtHR was lodged on 21 January 2015. 16 survivors applied: a group that consisted of thirteen Afghan nationals, two Syrian nationals and one Palestinian national. The Court gave its judgement on 7 July 2022 – eight years after the tragedy occurred and seven years after the application to the ECtHR.

The ECtHR unanimously found violations of both the procedural and the positive obligations of Article 2 (right to life) for all 16 applicants, and violations of Article 3 (prohibition of inhuman or degrading treatment) for 12 of the applicants. The Court condemned the State’s failure to adequately respond to the risk to the passengers’ lives and to properly investigate the fatal sinking of the vessel, as well as the imposition of body searches on some of the survivors.

After a considerable line of ECtHR cases where migrant applicants were left without a remedy, the Safi judgment offered a favorable legal outcome. Human rights actors involved with the case expressed their satisfaction with the landmark ruling and the ECtHR considers the Safi case a key judgment of 2022. However, if we view human rights litigation as a means of deterring future violations, the Pylos tragedy, occurring just a year after the Safi judgment, overshadows any sense of success.

Comparative Timelines

In the early morning hours of 20 January 2014, a coastguard speedboat identified movements around the boat. According to the survivors, two coastguards then boarded the boat, weapons drawn, and ordered the passengers to sit on the deck. Two phases of highspeed towing then took place. According to the survivors, the Coast Guard tied a ten-meter rope to an anchor point at the bow of the boat and began towing towards Turkish waters. Prior to the towing attempts there was no water in the boat; but due to the actions and means of towing, the capsizing of the boat was inevitable.  According to Greek authorities, the boat was being towed towards the island of Farmakonisi and capsized because of sudden panic and movements among those on board. A key aspect of the operation is that the Greek coast guard did not inform the national coordination center until 2:13 AM when the boat was already half sunk. At 2:16 AM the boat had completely sunk with survivors’ relatives cornered in the cabin.

In its judgment in Safi, the ECtHR emphasized that the central issue was whether the authorities have, in this particular context, acted in a manner which sought to ensure the protection of the life of the applicants and their relatives in a sufficient and adequate manner (para 148). The Court also emphasized the paramount importance of the time factor in such a situation. The Court noted that the mobilization and arrival of available rescue resources took place with considerable delays – over an hour after the boat had completely sunk.

The timeline of events leading to the Pylos tragedy is still being reconstructed, with considerable progress thanks to a 3D reconstruction produced by Forensis. Available evidence exposes similar patterns of delay but at a much larger scale. The Greek Coast Guard was pre-warned about the boat over 15 hours before the capsizing. Instead of rescuing the people the Greek Coast Guard observed the boat from the sky with a helicopter and turned down Frontex’s offer for assistance.

Survivors allege that the Greek Coast Guard towed the boat which caused the fatal shipwreck (just like in Safi, in much more dangerous circumstances). Greek authorities deny these allegations and claim the boat was never towed. Determining the exact cause of the shipwreck is a major challenge because it occurred on the high seas and Greek authorities sent away commercial vessels and surveillance planes. Despite ongoing Greek attempts to conceal the exact details, a video, apparently from the Pylos incident, has recently been leaked to Twitter. It is reasonably foreseeable that more evidence is yet to emerge.

Unqualified Interpreters and Tampering with Testimonials

In the case of Safi and others V. Greece, the applicants complained of problems of interpretation with the testimonies taken from them. The applicants alleged that the records of their statements did not reflect their true content and that they had never said the boat sunk due to sudden movements of those on board. Indeed, even the Greek Criminal Court acknowledged that the interpreters did not speak the applicants’ language. In its assessment, the ECtHR determines the Greek authorities were aware of the serious shortcomings in the testimonies, yet they continued to be an integral part of the case file (para 124).

In the Pylos case, documents and witness testimony obtained by the Lighthouse investigation show that the Greek Coast Guard almost certainly tampered with official statements to conceal their role in the shipwreck. Moreover, official documents reveal that one of the translators was a member of the Greek Coast Guard. Other translators were local residents sworn in on the day the interviews took place. According to the documents, none of the survivors blamed the coast guard at all. Eight survivors are stated to have blamed the capsizing on factors unrelated to towing. Four of them are documented as testifying in nearly identical wording that the boat capsized because it was old and there were no life jackets. These interviews were translated by three different interpreters. Regardless of the underlying facts, it is apparent that the Greek authorities have further exacerbated the uncertainty, causing “evidential damage” to the survivors.

In a later round of questioning by a Greek court, survivors stated that the Coast Guard towed the boat shortly before it capsized. The Lighthouse investigation reveals that the Coast Guard omitted the parts of the testimonies mentioning towing. Sixteen out of the seventeen survivors who spoke to journalists said the Coast Guard attached a rope to the vessel and tried to tow it shortly before it capsized. One survivor explains that he signed the deposition despite knowing it did not reflect what he said, because he felt terrified. In the most recent Guardian report published on July 10th, lawyer Maria Papamina, representing between 40 and 50 survivors, said that there had been two towing attempts recounted to her team. Ms. Papamina was also a legal representative in the Farmakonisi case.

Pressured to Identify the Smugglers

In the Safi case, the Greek authorities accused one of the survivors (applicant 11), a minor at the time, of being the captain of the boat. According to the government’s version of events, upon arrival to Farmakonisi a team of special forces of the Coast Guard questioned the survivors on who the captain of the boat was, but the applicants failed to answer (para 35). Despite a lack of evidence, the first instance court found applicant 11 guilty of steering the boat and thus responsible for the sinking and deaths. After appeal, the Syrian national was acquitted of risking the life and of the deaths of the passengers. He has repeatedly denied the charge that he was steering the vessel, claiming to have been a refugee himself. The latter claim was rejected by the Greek Courts.

In Pylos, nine survivors of the shipwreck face similar charges. According to Greek authorities, the charges against the nine Egyptians include illegal entry into the country, illegal trafficking of foreigners, criminal organization, causing a shipwreck, manslaughter by negligence and endangering life. The comparison between the two cases suggests that these charges may continue and aggravate a pattern of heinous victim-blaming. Here too, the men have pleaded not guilty to the charges. A court-appointed lawyer has said his client is innocent and was just a passenger that paid smugglers to be taken to Europe. How the Greek Courts treat these cases may become relevant, down the line, also to any supranational human rights litigation at the ECtHR.

In addition, survivors have explained that the Coast Guard pressured them to single out certain people as the smuggler in charge of the operation. The Lighthouse analysis of official documents confirm this claim – two answers to the questions about smugglers contain identical sentences. In addition, the Alarm Phone log of communication documents that the captain had left the boat, on a smaller boat, hours before the sinking. This of course raises further questions about the existing indictments.

A final point to address is the post-judgment implementation stage of ECtHR judgments. Three months before the Pylos tragedy, the Committee of Ministers of the Council of Europe classified the Safi case under standard supervision procedures. While multiple human rights NGOs submitted communications requesting the case be classified under enhanced supervision, the Greek Government’s reply states that the Safi case was an individual incident in a specific context and not part of a larger systemic problem. The Committee of Ministers’ decision thus reflects a preference for the Greek position. But the recent Pylos tragedy exposes the lies of such statements, which try to isolate specific events outside of what has become a pattern. Perhaps the Farmakonisi tragedy was not tragic enough to receive enhanced supervision status. It remains to be seen over a considerable number of years how the ECtHR will adjudicate the Pylos tragedy. In our view, it is already foreseeable that at the end of the long road, enhanced supervision will likely be necessary.  

What’s Next?

The Court’s judgment in the Safi case provides the basis from which the Court will assess the alleged violations by Greek authorities in Pylos. In Safi, the Court stated that there was insufficient evidence to establish some of the facts in question beyond a reasonable doubt, such as the specific details of the operation or whether an attempted refoulement had taken place. Importantly, it pointed out that this inability largely stems from the lack of a thorough and effective investigation by national authorities (para 155).

In its future judgment, the Court will rely on the domestic proceedings and emerging evidence to decide whether Greek authorities were responsible for the shipwreck. From the Safi case, the Court is already aware of several important aspects of a future Pylos case: it is aware that the Greek Coast Guard delays requests for rescue assistance; it is aware of the illegal and dangerous practice of towing; it is aware of the problems with interpretation and inaccuracy of survivor testimonials; it is aware of the challenges in determining the cause of shipwrecks due to the lack of effective and independent investigations; and indeed due to a pattern of evidential damage committed by Greek authorities.

How the court will adjudicate the Pylos case remains to be seen. An easy ruling would find similar violations of the procedural and positive obligation of Article 2. But the emerging evidence and documentation will force the Court to express its position also on whether Greek authorities committed and illegal use of force (the negative aspects of Article 2). In particular, evidence, which was not available in the Safi case, reveals that the Greek Coast Guard may indeed be responsible for the sinking.

The inconsistencies in the Greek version of the events will not be helpful to their efforts of denying such responsibility. These include the Greek Coast Guard allegation that the passengers refused assistance in contrast to the AlarmPhone log of contact with the distressed passengers; the Greek authorities’ refusal to accept multiple offers by Frontex for rescue assistance; and the new evidence from a hi-tech investigation by Forensis that expose contradictions on the boat’s direction and speed leading up to its sinking. Taken together, these important pieces of evidence are increasingly pointing to an act of mass reckless killing.

When it comes to opining on the Pylos case, the Court should also take note of the need for a speedy process, by all procedural means available. And it should consider issuing a remedy that will comprehensively address implementation mechanisms – a human rights “structural injunction” – as it is often called in the US context. Structural injunctions have familiar and real political and organizational barriers. Especially in a radicalized political environment, executive branches are not happy to receive instructions from judicial branches, perhaps especially not supranational judiciaries. While considering such political barriers, such out-of-the-box structural thinking is necessary if migrant rights litigation is to remain a viable way of defending human rights.

In the Farmakonisi case, the Court repositioned itself as relevant to asylum seeker rights, after quite a long period of disengagement that has rendered such rights “illusory”. The case that will emerge from Pylos should lead the Court to take the necessary next step in the same direction.