The European Court of Human Rights has concluded that a maritime pushback operation conducted by Greek coastguards in 2014 violated the right to life of the 11 people who drowned in the process. The case is Safi and Others v Greece (application no. 5418/15).
The human rights breaches didn’t stop there, though. Those who survived were subjected to degrading treatment by being publicly stripped and cavity searched. And the ensuing criminal investigation was so flawed that it breached the procedural protections of Article 2 of the European Convention.
The case is a vivid and tragic illustration of how difficult it is to conduct a lawful maritime pushback operation.
A failure to rescue a person who is in distress at sea will not necessarily breach their right to life: the duty of search and rescue is not absolute and much depends on the circumstances. For example, mistakes made in the course of what was arguably a botched mountain rescue attempt were held not to violate the Article 2 right to life of the dead climber in the case of Furdik v Slovakia.
And pushback operations are not necessarily unlawful in international law, although this is evolving and hotly contested. The law of the sea (see our briefing) requires search and rescue operations to be conducted. Where a person in distress is encountered they must be rescued. If they are rescued, they must be landed in a safe place. If that safe place is in the jurisdiction of another state, the consent of that state will be needed (otherwise it is an invasion, basically). Some assessment is also therefore needed of whether the place of disembarkation is really safe for those who have been rescued. All this might potentially be possible in the context of some pushback operations.
But that is certainly not what happened here. The Greek authorities behaved recklessly and abysmally. Nevertheless, there are wider lessons to learn. The United Kingdom government withdrew its pushback policy in April 2022. This case perhaps makes it less likely a similar policy will be reintroduced. One would hope that even if the moral implications of risking lives in a pushback operation did not trouble Priti Patel, the finding that deaths occurring during a pushback operation are the legal responsibility of the state would give pause to Patel, her successor and individual officials.
Soon after midnight on 20 January 2014, a Greek coastguard patrol encountered a small fishing boat carrying 27 passengers from Turkey. It was dark and the weather was poor. The boat had reached Greek waters and contained a mix of Afghan, Syrian and Palestinian men, women and children. The coastguards, who were aboard a speedboat with no rescue equipment, attached a towline to the boat and started to tow it away from Greece back towards Turkey. The boat overturned and 11 of the passengers drowned in the ensuing chaos. The passengers had not been provided with life jackets.
The survivors were fished from the water and taken to Greece, where they were publicly stripped and cavity searched. An inadequate criminal investigation was then pursued against the officials responsible, which was eventually abandoned.
Some factual issues were in dispute but much was agreed. The adverse weather, parlous state of the fishing boat and the fact it was overcrowded was common ground for example. The claimants alleged that the coastguard had towed the vessel at far too great a speed, causing it to tip over. The Greek coastguard blamed the passengers for moving around in the boat under tow.
Violation of the right to life
Cutting through all this, the court noted that no explanation had been provided by the Greek authorities of how a speedboat without the necessary safety equipment could safely rescue an overcrowded fishing boat. No attempt had been made to call for additional assistance until the vessel was already sinking. No life jackets were handed out as a basic precaution because none were available.
The initial anchor point for the towline on the fishing vessel had simply broken off. If the passengers had panicked, the court observed, this was “to be expected, given the conditions prevailing at the scene.” Despite this, the coastguard had made a second attempt to tow the vessel.
When the search and rescue coordination centre was belatedly contacted, it was already too late. The fishing vessel was already sinking. Some of the passengers were trapped in the cabin as it sank. A “Mayday relay” call was made to any ships in the area but the boat had already sunk by that point. A helicopter was requested but only arrived an hour and a half later.
The Greek authorities “had not done all that could reasonably be expected of them” to protect the lives of the claimants. The court therefore found that there had been a violation of the right to life protected by Article 2.
Violation of protection against degrading treatment
The survivors were taken to an open-air basketball court and ordered to undress in front of Greek officials and the other survivors. They were asked to turn around and bend forward and were subjected to a cavity search.
The Greek authorities did not attempt to explain why this had been necessary nor did they argue there had been any other public policy considerations requiring this search. There was no suggestion the survivors were armed or dangerous. On the contrary, the court observed, they were in an extremely vulnerable situation, having just escaped from a sinking boat. Some had just seen relatives drown in front of them. They were in a situation of “extreme stress” and were already “experiencing feelings of intense pain and grief”.
In all these circumstances, the search “could have caused these applicants to experience feelings of arbitrariness, inferiority and anxiety resulting in a degree of humiliation exceeding the – unavoidable and hence tolerable – level that strip-searches inevitably involved.” The court therefore found that this conduct by the Greek authorities amounted to degrading treatment in violation of Article 3.
Procedural human rights breaches
Using interpreters, statements were taken from the survivors for a criminal investigation into the conduct of the coastguards. Discrepancies arose between the various statements and when perjury proceedings were brought against one of the interpreters it transpired he did not speak the relevant language.
The criminal investigation was also flawed in other, serious ways. Relevant official communications were not disclosed. When the prosecution was discontinued, the public prosecutor asserted that there was no practice of pushbacks into Turkish waters. This was provably incorrect and contradicted public statements by senior Greek government officials. Other obvious lines of enquiry had not been pursued.
The court awarded fairly substantial damages, which I think is quite unusual: €100,000 to one of the applicants, €80,000 to three jointly (presumably a family), €40,000 to another applicant and €10,000 each to the remaining applicants.
This write-up is all based on a fairly detailed official press release. The full judgment is only available in French, unfortunately.