02 Nov Pushed Back from Europe and Its Human Rights Court: Evidence of Lawless Expulsions Before the UN Human Rights Committee
[Delphine Rodrik is a senior legal advisor with the Border Justice team at the European Center for Constitutional and Human Rights (ECCHR) in Berlin.
Dr. Niamh Keady-Tabbal is a postdoctoral researcher at the School of Law and Criminology, Maynooth University and a consultant at GLAN. She was part of the legal team that supported G.R.J.’s case before the ECtHR.
Silvia Rojas Castro is a senior legal advisor with the Border Justice team at the European Center for Constitutional and Human Rights (ECCHR) in Berlin.
Amanda D. Brown is a doctoral researcher at SOAS School of Law and legal advisor at UCLA Law’s Promise Institute for Human Rights (Europe).]
The 9 September 2020 “pushback” from Greece of G.R.J., then a 15-year-old unaccompanied Afghan asylum-seeker, was—like all other Greek pushbacks—designed to conceal its very occurrence and prevent him from pursuing accountability.
After arriving on Samos from the Turkish coast on the morning of 8 September, G.R.J. and a teenage companion he was travelling with walked for hours before reaching a refugee camp in Vathy in the evening. On the morning of 9 September, both boys were approached by Greek officials, whom they informed of their ages and their request to seek asylum. However, this interaction was never recorded. Instead, leading them to believe that they would be taken to COVID-19 quarantine and then returned to the camp, officials took them out of the camp through a non-public exit, put them into a vehicle, drove them to the nearby Vathy port, and forced them onto a Greek Coast Guard vessel. Officials then abandoned the two teenage boys at sea on a motorless, unnavigable raft. They had no life vests or paddles, no food or water in the late summer heat, and no way to call for help, as officials had stolen their cell phones.
Four years later, G.R.J.’s case came before the European Court of Human Rights (ECtHR), together with a case challenging an expulsion to Türkiye from the Greek land border (A.R.E. v. Greece), in its first hearing addressing Greek pushbacks. The cases tested the Court’s approach to structural imbalances in access to evidence where a state denies not only the applicants’ treatment but also their very presence in its territory, in the highly politicized context of so-called “border management.” Yet, last year, the Court found that G.R.J. had not sufficiently proved that he was personally subject to the pushback described, deeming the case inadmissible for lack of victim status and thereby precluding further challenges via a Grand Chamber referral. The decision therefore highlighted the impacts of Greece’s clandestine pushback policy not only throughout the life-threatening process—which G.R.J. argued violated ECHR articles 2 and 3—but also on victims’ ability to claim rights and an effective remedy following their occurrence.
The Court’s outcome has previously been scrutinized for rewarding state practices that obstruct the documentation of human rights violations and thereby limit victims’ access to evidence. However, it more fundamentally reflects the Court’s overall unwillingness to engage with how pushbacks function to deny victims’ rights-holding status in Europe—further limiting access to the ECtHR for those most marginalized. With the doors to accountability shut to G.R.J. at the European level, and despite an already labyrinth-like pathway to safety and then to the Court, G.R.J. now pursues his claims before the UN Human Rights Committee (HRC) in an individual communication filed last week, with the support of ECCHR, GLAN, and Human Rights Legal Project Samos. “My motivation is to get justice and prevent this from happening to other people,” he told us.
This post explores how the ECtHR’s failed evaluation of evidence threatens to practically foreclose the claims of thousands of pushback victims like G.R.J., most of whom cannot access comparable evidence of the pushbacks they faced at borders across Europe. It also offers analysis of the HRC’s potential as an alternative forum better suited to examine these issues and safeguard space for pushback victims to have claims contesting state violence heard—despite the inherent limitations of a quasi-judicial process and the law in a context where it is systematically ignored.
The ECtHR’s Flawed Assessment of Evidence and Application of its Own Jurisprudence
The ECtHR has a well-established evidentiary doctrine accounting for structural power asymmetries where the state monopolizes access to evidence, as well as several tools at its disposal to gather evidence in the specific border context. For instance, once an applicant provides a detailed, specific, and coherent account, supported by indirect or circumstantial evidence (El-Masri v. the former Yugoslav Republic of Macedonia, §§156-157) such as photos, videos, or reports documenting a systematic practice (N.D. and N.T. v. Spain, §§86-87; A.A. and others v. North Macedonia, §55), a prima facie case may be established and the burden of proof shifts to the state. In G.R.J., the Court expressly recalled these principles, accepting that its approach developed in secret detention cases “seem[ed] appropriate” (§173). However, citing the applicants’ arguments that Greek pushbacks represented a systematic practice, the Court required the applicant to first establish said practice and then to link it to his own expulsion through “concrete, comprehensive and concordant evidence” (§182). Otherwise, the Court warned, adopting Greece’s argumentation on this point and revealing a fundamental suspicion of claimants alleging pushbacks, “any foreign national could claim to be [a] victim” by shaping claims around the practice documented in reports (§183).
In G.R.J.’s case, however, extraordinary efforts by activists and civil society had preserved considerable evidence of the events of 8-9 September. After reaching Samos, other members of G.R.J.’s traveling group shared a series of photos and videos documenting their arrival, including live locations, over WhatsApp to Aegean Boat Report (ABR), an NGO tracking arrivals and pushbacks. After the boys disappeared from the island, the Turkish Coast Guard (TCG) published video footage of two minors being rescued at sea. One asylum-seeker the boys met in the Vathy camp before they were expelled recognized them in this footage, and MSF, which located the two boys homeless in Izmir after the events, passed along this information and a summary of the circumstances of their abduction and expulsion from Samos to the Greek Ombudsperson. A freedom of information request also showed that Frontex had recorded an incident consistent with the pushback as a “prevention of departure” operation, terminology that a collective of investigative journalists revealed Frontex uses to record and thereby conceal pushbacks in the Aegean.
The Greek Helsinki Monitor then included the publicly reported and available documentation of G.R.J.’s pushback in a complaint to the Supreme Court Prosecutor regarding 147 pushbacks. This complaint was forwarded to Greece’s National Transparency Authority (NTA), which accessed official records containing significant contradictions with the accounts of Greek authorities. Officials on Samos claimed that they had never encountered the boys in Greece, and that they had rather detected two people in Turkish territorial waters on 9 September, alerting the TCG to coordinate their rescue. But internal documents obtained by the NTA revealed that the alleged call to the TCG had never taken place; that the Greek authorities’ alleged sighting of two people in Turkish waters was only retroactively recorded in relevant logs and later updated to change its location; and that there had been a departure and arrival from the Vathy port of a Greek Coast Guard vessel matching G.R.J.’s description, with timing consistent with when his pushback would have occurred, but which were also not properly logged.
All this evidence concerning G.R.J.’s pushback was therefore before the Court. The Court first accepted that the absence of any Greek records of his arrival lay at the core of G.R.J.’s allegations (§193). It also alluded to the absurdity of Greece’s claims—most prominently that two boys would attempt to reach Greece from Turkey on a motorless raft without so much as a paddle (§195)—and even acknowledged that the pushback at stake may well have occurred (§223). But the Court characterized G.R.J.’s account as “at times contradictory and incoherent” (§225), citing for instance a later asylum interview transcript in which the applicant recounted that “the coastguard had sent him back each time” he had attempted to enter Greece, but where, in the Court’s view “contrary to his submissions” before the ECtHR, he “made no reference […] to an earlier entry into Greece” (§222, emphasis added). It placed significant emphasis on the lack of a photograph of G.R.J. in Samos, despite his explanation that he had lost a photo his companion took of him when Greek authorities stole his phone, concluding that this absence “cast serious doubt on the credibility of his account” (§212). It ultimately decided that G.R.J. had failed to sufficiently show his own victim status because the record did not establish “beyond reasonable doubt” that he was one of the two pushed back minors—whom it inexplicably characterized as “men” (§215)—and rejected the application (§§223, 226).
Thus it was the Court’s reasoning that departed contradictorily from its past jurisprudence and its own factual findings. It failed to consider the cumulative weight of the above-described evidence against what it recognized as a systematic practice (§§187-190) and highly relevant inconsistencies in Greece’s own paperwork and claims, much less to acknowledge how additional vulnerabilities due to G.R.J.’s minor status posed further obstacles to his evidence collection at the time of the events. This facilitated a decision ultimately accepting the contradictions between the state’s argumentation and its documentation as inconsequential, untethered from the context the Court claimed to have recognized. Despite acknowledging that proving pushbacks is “an extremely difficult task, given [their] inherently secretive and unofficial nature” (§191), the Court’s assessment placed decisive weight on evidentiary shortcomings produced by those very conditions. In effect, the Court maintained the burden of proof on the applicant, while arguably heightening its standard beyond prima facie, tacitly accepting the Greek state’s framing of itself as victim of manufactured claims.
G.R.J. Before the UN Human Rights Committee
G.R.J. now turns to the UN HRC to adjudicate his claims, as the ECtHR’s denial of his victim status meant that they were not examined on the merits. Procedurally, the HRC is not precluded from examining his communication, because Greece has not entered a relevant reservation barring the HRC’s examination of complaints previously brought to another international mechanism. Substantively, the International Covenant on Civil and Political Rights (ICCPR) also encompasses rights unavailable under the European Convention on Human Rights (ECHR), which may provide a clearer lens through which to evaluate the full range of rights violations that G.R.J. experienced through his pushback.
In particular, G.R.J. here alleges violations of his right to recognition as a person before the law under ICCPR article 16, a right which is not explicitly protected by the ECHR. The HRC’s jurisprudence on enforced disappearances has clearly addressed how placing victims outside the protection of the law, paired with consistent obstruction of access to remedy, fundamentally functions to deny their status as subjects of the law. In cases such as G.R.J.’s, article 16 thus allows for a more direct evaluation of how pushbacks are designed to keep victims outside of any legal framework or protection and to deny them any potential access to remedy, both during and after their occurrence. G.R.J. also invokes ICCPR article 24(1), which entitles every child to the protective measures required by their status as a minor. This provision obliges states to treat a child’s best interests as a primary consideration in any measure affecting them; it can be violated in its own right, and, read in conjunction with other Covenant rights, can heighten the gravity of violations committed against children. The absence of these two provisions in the ECHR precludes engagement with how pushbacks’ intentional removal of migrants from the protection of the law and obstruction of access to remedy are violations in and of themselves, as well as with the distinct obligations owed to children subjected to them. The ECtHR’s casual, unexplained reference to “men” in its inadmissibility decision reflects a lack of appropriate weight given to G.R.J.’s minority, even at the admissibility stage, where his age bore directly on what evidence he could produce and on his ability, as an unaccompanied child, to access remedy.
Past jurisprudence of UN treaty bodies has demonstrated more progressive, albeit limited, scrutiny of deterrence-based border policies across Europe in contexts where the ECtHR has refrained (see D.D. v. Spain [CRC]; A.S. and others v. Italy [HRC]; Sonko v. Spain [CAT]). The HRC has also recognized structural imbalances in access to evidence, particularly when the state is in exclusive possession of evidence and fails to provide any satisfactory explanation of the events. In those circumstances, the HRC has given significant weight to the complainant’s account for the establishment of the facts (see, e.g., Ferhati and Ferhati v. Algeria). Despite this, it has often provided what has been critiqued as “vague evidentiary reasoning.” In G.R.J., the Committee has an opportunity to more clearly articulate how its evidentiary evaluation and distribution of the burden of proof apply to claims of a practice designed to obstruct applicants’ access to evidence and remedy. This could facilitate a more balanced evaluation than at the ECtHR and thus develop international standards on evidence in pushback cases.
Conclusion: Contesting Pushbacks Against Increasing European Tolerance for Border Violations
More than six years after G.R.J.’s pushback, not a single prosecution of officials related to Greece’s decades-long pushback practice has taken place. Instead, those documenting and seeking accountability for pushbacks have themselves faced criminal charges. Human rights defenders like Greek Helsinki Monitor founder Panayote Dimitras and Aegean Boat Report founder Tommy Olsen, both crucial in documenting and challenging G.R.J.’s pushback, currently face trial in Greece on charges of supporting asylum-seekers’ entry and stay in the EU, claims Human Rights Watch has characterized as a “politically motivated attempt to silence their efforts to expose abuses against migrants.” At the European level, normalization of border violations has been further entrenched by the claims of Council of Europe states that the ECtHR’s jurisprudence on migration has become too progressive, as well as EU-wide reforms to its common asylum system that further limit access to territory and to rights for those attempting to seek protection in Europe.
G.R.J.’s communication to the HRC cannot directly address the full scope of a system framing racialized people on the move and those supporting them as suspect, but, where the ECtHR has failed to provide accountability, it may help correct the record. An HRC decision on the merits can therefore provide a crucial counterweight to European courts’ tolerance of systematic grave violations continuing daily at their borders, safeguarding space for victims to contest this normalization of violence and insist that pushbacks are in clear violation of international law.