A.A.J. and H.J. v Greece: Abductions and Torture in the Aegean

The specific manner in which the Greek authorities summarily expelled G.R.J., by abandoning him to drift in an inflatable and motorless raft, is part of the Greek Coast Guard’s systematic ‘pushback’ practices. It is emblematic of a well-documented and widely established mode of operation since at least March 2020, whereby Greek forces in the Aegean Sea send asylum-seekers adrift in non-navigable rafts with indifference as to whether they live or die.

This practice was reconstructed by the research agency Forensic Architecture, which published an online interactive platform that maps and showcases 1,018 documented incidents of ‘pushbacks’ in the Aegean Sea, involving the illegal expulsion of 27,464 people, including the case of G.R.J., between 28 February 2020 and July 15 2022. Of these, 194 incidents took place from, or off the shores of, the island of Samos. Forensic Architecture established that Frontex, the European Border and Coast Guard Agency, was directly involved in 122 of these cases, and had knowledge of a total of 417, “having logged them in its own operational archives, codified and masked as ‘preventions of entry’” (as revealed by OLAF’s report on Frontex, following Lighthouse Reports’ investigations).

A growing number of alleged cases of ‘pushbacks’ by Greek authorities that follow the same pattern have been communicated to the Court since early 2020. Leading investigative groups and media organisations, including Lighthouse Reports, Bellingcat, Der Spiegel, and ARD/Report Mainz, have also investigated and extensively reported on ‘pushbacks’ from Samos as well as other Aegean islands. Meanwhile, the Greek government continues to deny that ‘pushbacks’ are happening, either in the Aegean or at Greece’s Evros river border, and stresses its commitment to international law.

A.A.J. and H.J. are two brothers who fled persecution in Guinea. On 10 November 2020, they arrived on the Greek island of Lesvos from Turkey on a rubber dinghy with about 30 other asylum seekers.

After landing on the shore, one of the two brothers contacted representatives from international organisations to no avail. Soon after, Greek officials arrived in a car and apprehended the applicants and their group, detained them, and used physical force to search them and confiscate their belongings (including phones, money and their identification documents). One of the applicants was able to secretly retain possession of his phone, and, fearing a ‘pushback’ and wanting to document their treatment, covertly videotaped the Greek officials during this time. Upon noticing this, the Greek officials chased the applicant and then slapped and pushed him to the ground. He was able to continue hiding his mobile phone and prevent it from being confiscated, and the footage he captured was later published in Greek media.

A.A.J. and H.J. informed the officials that they were refugees and wanted to seek asylum, but they were nonetheless denied access to asylum procedures. Greek officials forced A.A.J. and H.J. and their group into a dark police bus and drove them to a port, where armed officials hit the brothers and other members of the group with batons, pointed guns at them, and threatened to shoot them if anybody shouted. Officials then loaded the group members onto speedboats and transported them to a large Hellenic Coast Guard vessel. During this operation, Greek officials continued to threaten the group with guns and batons, and used the batons to beat some of the group members, including one of the brothers. The Hellenic Coast Guard vessel was flying the Greek flag and had ‘618’ painted on the side.

Once all the group members were loaded onto the vessel, it drove away from the coast at a high speed for about one hour. During this time, the group was forced to keep their heads down. The vessel then stopped, and the officials forced the group members to exit the vessel into an inflatable life raft, which began to leak and deflate immediately. A speedboat then dragged the life raft through the water, until a Greek official cut the rope and left the raft to drift at sea in the dark. The life raft, which had no life jackets or motor, began to take on water immediately.

The group continued to drift for hours, fearing that they were going to drown. One of the applicants used his mobile phone to try to seek assistance from the UNHCR in Greece, to no avail. After about three hours of drifting, the applicant’s phone connected to Turkish cell service and he was then able to make a distress call to the Turkish Coast Guard, who rescued the group and transported them to Turkey.

The case argues that Greece’s treatment of A.A.J. and H.J. violated several legal obligations under the European Convention on Human Rights (ECHR), including the right to life (Article 2); the prohibition of torture (Article 3); and the right to an effective remedy (Article 13).

By deliberately abandoning A.A.J., H.J. and other migrants in a life-threatening situation in which it was not sure whether they would make it to shore (or whether they would be found and rescued by the Turkish Coast Guard), the Greek Coast Guard violated their right to life, as its actions may have—intentionally or unintentionally—led to their arbitrary killing. The Greek Coast Guard endangered A.A.J., H.J. and others by leaving them adrift in a punctured motorless raft at sea, knowing that the persons on board had no means of manoeuvring the life raft, and did not have any food or water.

We argue that the deliberate and intimidating nature of their treatment, evident from the widespread use of this mode of expulsion, constituted a violation of the prohibition of torture. A.A.J. and H.J. experienced severe “physical and mental suffering” (Ireland v The United Kingdom, §167) and were left in extreme distress as a result of the deliberately cruel actions of the Hellenic Coast Guard personnel. A.A.J. and H.J. were further subject to a violation of their rights under Article 3 due to their having been denied access to asylum procedures and illegally expelled to Turkey, where Greek authorities knew they would not have had access to asylum.

A.A.J. and H.J. had no access to a suspensive remedy that could have brought an end to their ill-treatment at the time of their illegal abduction, pending their expulsion from Greece. The secret and informal nature of such operations obstructs access to justice in Greece—as also analysed by the joint third party intervention filed in support of this case and others by ECCHR, PRO ASYL and Refugee Support Aegean, which finds that victims of ‘pushbacks’ do not have access to effective domestic investigations in Greece for claims alleging violations of Articles 2 and 3 ECHR. This is one of a dozen third party interventions in this group of cases, many of which focus on the absence of investigations and remedies in Greece.

Critically, due to the Greek government’s established practice of denying its officials’ involvement in ‘pushbacks’, and the absence of any paper trail for such inherently secretive acts, we argue that the specificity and established pattern of facts—as well as the gravity of the violations alleged and the Convention rights concerned—aligns with the Court’s case law on the reversal of the burden of proof. In such cases, the responsibility under the procedural limb of Articles 2, 3 and and 13 to provide a satisfactory and convincing explanation by materially addressing and refuting the evidentiary proof and detailed statement provided by the applicant rests with the Greek authorities (Salman v Turkey [GC], §100; Nachova and Others v Bulgaria [GC], nos. 43577/98 and 43579/98, §147; Iskandarov v Russia, no. 17185/05, §107; El-Masri v the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §151; Ilias and Ahmed (GC) §141; M.S.S. v Belgium and Greece, §§346-50).

The main purpose of these cases is to seek a determination of the facts concerning patterns of ‘pushbacks’ taking place in the Aegean maritime borderzone, which the Greek authorities—together with Frontex—have sought to conceal, deny and cover-up. The group of cases pending before the Court, of which these cases are a part, seeks to establish (a) that such cases are in fact happening and being concealed by the Greek political and legal systems; (b) that their concealment results in the denial of access to justice for survivors of ‘pushbacks’ in Greece, and (c) that, in light of the above, the financial and technical assistance provided by the European Union, including via Frontex, to the Greek authorities should be suspended for as long as Greece’s actions continue to amount to systemic breaches of fundamental rights and other EU law.

Given the Greek government’s systematic denial of ‘pushbacks’, the cases seek reparative truth for A.A.J. and H.J.’s cases as well as many others. While applicants to the Court normally bear the burden of proof, the Court has reversed that burden onto the respondent state, and found applicants’ allegations to be sufficiently substantiated, based on the significance of the case “for other victims of similar crimes and the general public”, thus establishing “the right to know what had happened” (El-Masri v the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §152-153). The systemic practice of ‘pushbacks’ exemplified by the cases of A.A.J. and H.J. is similar in factual and legal consequence to the practice of extraordinary rendition examined in El-Masri, where the Court established that detention “outside the normal legal system” and “deliberate circumvention of due process” are “anathema to the rule of law and the values protected by the Convention” (see the judgement in El-Masri, citing Babar Ahmad and Others, §§113-14).

The outcome and advocacy around the cases also seeks to expose and contest the operational obligations of Frontex through its Joint Operation Poseidon with the Greek Coast Guard in the Aegean Sea. Lighthouse Reports and other investigative findings on Frontex’s involvement and complicity in ‘pushbacks’ conducted by the Greek authorities were affirmed by the European Parliament’s Frontex Scrutiny Working Group (FSWG) and then by the European Anti-Fraud Office (OLAF), revealing the manner in which the agency has covered up Greece’s illegal expulsions, including by recording incidents of ‘pushbacks’ as forms of ‘prevention of departure’ in its Joint Operations Reporting Application (JORA) reporting system, as was the case in A.A.J. and H.J.. Meanwhile, Frontex failed to conduct its own investigations into widely documented systemic ‘pushbacks’ in its area of operations in the Aegean, and of the agency’s involvement therein, including by failing to record ‘serious incident reports’. Instead, the agency has repeatedly denied any involvement in ‘pushbacks’ and reiterated its reliance on Greek national investigative mechanisms.

On 14 December 2023, the European Parliament adopted a resolution urging Frontex to suspend operational activities in Greece because of ‘pushbacks’ and other forms of (border) violence against migrants and refugees, and to take proactive measures to ensure its operations’ compliance with fundamental rights. The agency has not been held to account for these systemic failures—recently, the EU General Court refused an action for non-contractual damages against the agency (due to the remoteness of the ‘causal link’ with the agency’s actions). While the European Court of Human Rights does not have jurisdiction over the agency, if Greece’s violations of the Convention are upheld there will be further grounds for both the agency and EU institutions to take measures to limit their involvement in Greece’s border operations.

3 March 2021: Application Form submitted to European Court of Human Rights (with Prakken d’Oliveira; while members of de:border were part of the Global Legal Action Network (GLAN))
13 December 2021: Court communicates the Application to Greece on questions of merits and admissibility, requesting its response by April 2022
22 June 2022: Greek Government’s response to the communication received from Court
3 November 2022: Observations in response to Greek Government’s submissions, including two expert annexes by Forensic Architecture and Lighthouse Reports respectively, filed by applicant

Niamh Keady-Tabbal and Valentina Azarova, ‘Strategic litigation on access to  fundamental rights and protection for refugees from Syria in Lebanon’, Civil Society Workshop, Euro-Mediterranean Human Rights Network & Lebanese Centre for Human Rights (CLDH), Beirut, 11 April 2022 (contribution to Marielle Hayek, Guide on documenting pushbacks at the Cyprus-Lebanon-Syria borders, EuroMed Rights, April 2023)

Niamh Keady-Tabbal and Itamar Mann, Weaponising rescue: Law and the materiality of migration management in the Aegean, Leiden Journal of International Law (2022)

Valentina Azarova, Amanda Brown, Charles Heller, Niamh Keady-Tabbal, Noemi Magugliani, Itamar Mann, Violeta Moreno-Lax, Lorenzo Pezzani, Documenting and litigating against the shifting practices of refoulement across the EU’s maritime frontier, Asyl 3 (2021) 13-17

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