CEDH · CASELAW;CLIN;ENG — 7 janvier 2025

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Greece - 15783/21 Judgment 7.1.2025 [Section III] Article 3 Expulsion Turkish applicant’s allegations of “pushback” to Türkiye from Evros region in Greece found sufficiently convincing and beyond reasonable doubt in context of established systematic practice of “pushbacks”: violation Facts – The applicant, a Turkish national, submitted that she had entered Greece on 4   May 2019 after crossing the Evros River from Türkiye to seek international protection. She alleged that, in the afternoon, while awaiting a lawyer, N.O., she had been arrested in Nea Vyssa, then taken to a border post and held there. The applicant’s “pushback” to Türkiye allegedly began after 7   p.m. In the applicant’s submission, she was transferred to an unidentified police station where her personal belongings, including her mobile phone, were confiscated. She alleged that she and others had then been transported by lorry to a spot near the Evros River where they had been taken out of the lorry by individuals wearing balaclavas. At around 11   p.m. the applicant, along with others, was allegedly made to board a small rubber dinghy to be sent back to Türkiye. The applicant was arrested by the Turkish authorities on 5   May 2019. The following day, the Izmir Criminal Court observed that, despite having been forbidden to leave the country after her sentencing in March 2019 to six years and three months’ imprisonment for membership of the “FETÖ/PDY” organisation, the applicant had fled abroad, where a “pushback” had taken place, and that she had been arrested in the prohibited military zone. The applicant was imprisoned. Law – (1) Specific context of the case – The present case had a very specific context and differed from other recent cases involving an alleged “pushback” under Article   3 of the Convention and/or a collective expulsion of aliens under Article   4 of Protocol No.   4. In addition, it raised extremely sensitive questions as to the establishment of the facts and, in particular, the burden of proof. The Government firmly denied any involvement in the impugned events by agents of the respondent State and rejected in its entirety the applicant’s version of events as vague, inconsistent and unsubstantiated. In particular, they disputed the applicant’s very presence in Greek territory – and, in consequence, her “pushback” to Türkiye – on the dates alleged. (2) Principles governing the standard and burden of proof – The principles set out in cases concerning, inter alia , secret detention appeared appropriate in the present case. Furthermore, similar standards had been relied on in a number of cases of alleged “pushback”. An applicant who claimed to have been the victim of a “pushback” could in principle satisfy the relevant standard of proof without having to allege that his or her “pushback” had been part of a systematic or generalised practice of “pushbacks” or to provide proof of the existence of such a practice. Nevertheless, the Court took the view that the opposite approach was justified in the present case. Firstly, the applicant had submitted that such a systematic practice had been in place at the time of her own “pushback”. Secondly, determining whether or not such a practice had been in place would help the Court to take account, if appropriate, of the general context at the relevant time. However, a systematic practice of “pushbacks” – even assuming such a practice was established – did not exempt an applicant from the duty to provide prima facie evidence to substantiate his or her allegations. In such cases, the applicant had to establish that the alleged “pushback” was linked to this practice by substantiating his or her account – which had to be detailed, specific and consistent – with concrete, comprehensive and concordant evidence on the basis of which the burden of proof would shift to the respondent Government. In cases where the respondent Government denied the facts alleged in their entirety, applicants could find themselves in an inherently difficult position with regard to evidence and unable to prove the truth of their version of events. At the same time, in the absence of any substantiated evidence, any foreign national could claim to have been the victim of a violation of the Convention by fashioning his or her account on the practice described in reports from national and international institutions. As to what might constitute prima facie evidence and shift the burden of proof to the respondent Government, particular importance was to be attached to documents in the case file, such as those prepared by other Council of Europe member States, including the State to which the applicant alleged that he or she had been returned. The issue of digital evidence produced for the purpose of establishing a “pushback” had not, to date, been subjected to particular scrutiny by the Court. The question of the authenticity and evidential value of audiovisual material could be crucial, in particular where any other evidence directly or indirectly supporting the applicant’s account was lacking. Lastly, the Court could also take into account any other evidence relied on by the applicants or included in the case file, such as the testimony of other persons, including that obtained in the context of domestic (criminal) proceedings. (3) Assessment of evidence and establishment of facts – (a) Whether there was a systematic practice, in the Evros region, of “pushbacks” from Greece to Türkiye – Having regard to the significant number, variety and concordance of the relevant sources, the Court concluded that there were strong indications to presume that there had existed, at the time of the events alleged, a systematic practice of “pushbacks” of foreign nationals, by the Greek authorities, from the Evros region to Türkiye. The Government had not successfully challenged the indications in question by providing a satisfactory and convincing alternative explanation. (b) Evidence produced by the applicant and other evidence in the case file – The applicant had provided several elements – documentary evidence, audiovisual material and witness testimony – that could, including when considered separately, be taken as prima facie evidence in favour of her version of events. The Government had failed to put forward any arguments or other proof apt to refute her evidence. Consequently, the applicant’s allegations were sufficiently convincing and established beyond reasonable doubt. Articles   3 and 13 in conjunction with Article   3: The applicant had been sent back to her country of origin, Türkiye, – from which she had fled – without prior examination of the risks she faced in the light of Article   3 of the Convention or, therefore, of her request for international protection. Even though she had expressed fears as to the ill-treatment to which she might be subjected if she were sent back to Türkiye, the Greek authorities had ignored her request for international protection, in breach of Articles   3 and 13 of the Convention. Conclusion : violations of Article   3 and of Article   13 in conjunction with Article   3 (unanimously). Article   5 §§   1, 2 and 4: The relevant reports and the observations of a number of third-party interveners showed that the arrest and detention of irregular migrants – a kind of temporary forced disappearance – formed part of the modus operandi noted in connection with the practice of “pushbacks”. The applicant had been arrested by the Greek authorities, then transferred to the border post on the date alleged, since her location had been shared in real time with the lawyer, N.O., who had forwarded the location “pin” to her brother. The Government had not successfully challenged the applicant’s allegations. The Court took the view that she had been the victim of detention lacking any legal basis with a view to her “pushback”. Conclusion : violation (unanimously). Articles   2, 3 and 13 in conjunction with Articles   2 and   3: The applicant’s factual allegations of violations of Articles   2 and 3 of the Convention during the impugned “pushback” broadly corresponded to the modus operandi described in the relevant reports from national and international institutions. However, while granting that it appeared extremely difficult to prove such violations in the present case, the Court considered that they could not be established beyond reasonable doubt for lack of clear and concordant evidence. The applicant had not provided prima facie evidence to substantiate her allegation that her life had actually been at risk during her “pushback” to Türkiye across the Evros River. The “pushback” methods employed had not attained the threshold of severity required for the treatment to which the applicant had been subjected to be characterised as inhuman or degrading. The national legal system did not provide an effective remedy in respect of allegations of violations of Articles   2 and 3 of the Convention during “pushback”. In addition, the investigation conducted by the national authorities following the criminal complaint filed by the applicant had fallen far short of satisfying the effectiveness requirements established by the Convention. Conclusion : no violation of Articles   2 and   3 (six votes to one); violation of Article   13 in conjunction with Articles   2 and 3 (unanimously). Article   41: EUR   20,000 in respect of non-pecuniary damage. In view of the seriousness of the violations found and the lack of any possibility of seeking redress at the domestic level, the present case disclosed exceptional circumstances calling for the award of just satisfaction in respect of non-pecuniary damage, notwithstanding the belated nature of the claim under this head. (See Abu   Zubaydah v.   Lithuania , 46454/11, 31   May 2018, Legal Summary ; M.A. and Others v.   Lithuania , 59793/17, 11   December 2018, Legal Summary ; N.D. and N.T. v.   Spain [GC], 8675/15 et 8697/15, 13   February 2020, Legal Summary ; M.K. and Others v.   Poland , 40503/17 et al., 23   July 2020, Legal Summary ; D   v.   Bulgaria , 29447/17, 20   July 2021, Legal Summary ; A.A. and Others v.   North Macedonia , 55798/16 et al., 5   April 2022, Legal Summary ; al‑Hawsawi v.   Lithuania , 6383/17, 16   January 2024, Legal Summary ; G.R.J. v.   Greece , 15067/21, 7   January 2025, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .