Advancing Accountability

In Alkhatib and Others v. Greece, the European Court of Human Rights (ECtHR) has condemned Greece for yet another instance of human rights violations in border management. The case concerned two Greek coast guard officers who shot at a motorboat transporting people near the island of Pserimos. In the course of their patrolling activity, the coastguards discharged seven warning shots and thirteen gunshots targeted at the motorboat’s engine, seriously injuring two Syrian nationals. Tragically, one of them (the relative of the Applicants of the case) died after several months in intensive care.

The ECtHR upheld the claims of the Applicants by finding a violation of Article 2 which enshrines the fundamental right to life. On a procedural basis, the Court underscored numerous deficiencies during the investigation of the Greek authorities, which resulted in a significant loss of evidence. Substantively, the Court highlighted the absence of an adequate legislative framework to govern the use of force. It then concluded that the coastguards used excessive force and that they failed to prove that it was absolutely necessary.

By underlining the importance of clear regulations and adequate evidence within border operations, the Court showed avenues to enhance the accountability framework for violations perpetrated at Europe’s borders. Its decision contrasts favourably with the approach taken in the EU at large, where both legislators and national and supranational courts generally disregard the opacity in regulations governing border operations and the difficulty of collecting evidence for migrants. In this blog post we highlight how these two conditions create a fertile environment for the perpetuation of an unjust system.

Vague and Inadequate Legal Regulation

In Alkhatib the ECtHR emphasized the necessity of clearly defined regulations to curb any arbitrary use of force. In doing so, the Court tackled the problem of abuse of force upstream, evaluating whether adequate regulatory measures were in place to minimize preventable incidents and to not leave police officers “in the dark” (§ 120). Such clear measures were not found in the Greek legislation. The Court examined two legal instruments applicable in the case: (1) the 1992 Rules of Engagement and (2) the regulation on the possession, carrying and use of firearms by personnel of the coast guard corps, approved by the Minister of the Merchant Navy on April 27, 2004 (hereinafter the “2004 Regulation”). The Greek Coast Guard and the Government, however, only referred to the Rules of Engagement.

The Court found these rules inadequate to provide effective safeguards against arbitrariness and abuse of force for three reasons. Firstly, the text was found to be old, spanning over thirty years. Secondly, the legislation invoked by the authorities was comparatively less detailed than the other – disregarded – 2004 Regulation. In particular, the rules of engagement were missing any provision urging the prevention of accidental damage to the lives of third parties and did not set out the conditions for a use of force to be considered “absolutely necessary” in a given situation. The 2004 Regulation, by contrast, regulated the case that led to the death of the relative of the Applicants as it provided that the use of intimidation or shooting at objects was only permitted “provided that all necessary measures have been taken to ensure that no one is injured by a missed shot or by the ricochet of the bullet” (§5). Furthermore, the 2004 Regulation prohibited immobilization or neutralization shots when there was a serious risk of injury to a third party by a missed shot or by a ricochet of the projectile (§8a). However, these provisions were disregarded by the Greek Government and the coastguards in favor of the applicability of the vague rules of engagement. Finally, the Court identified a lack of clarity regarding the manner in which the two pieces of legislation interact with each other, and in particular whether their application was cumulative or whether one had to prevail over the other in case of conflict. These factors raised a situation of uncertainty, which the Court found incompatible with the requirement of a legal framework containing adequate and effective safeguards against arbitrariness and abuse of force.

An EU Wide Problem

As acknowledged by the ECtHR, the need for a clear and detailed legal framework is crucial in the context of border operations. This need for clarity is particularly relevant in the context of EU border management, where the model of integrated administration progressively brought Frontex at the forefront of border management. Scholars have demonstrated that the entrance of the agency in the legal arena created serious gaps of accountability, which has not been satisfactorily addressed by the CJEU. A recent example of this challenge is the dismissal by the General Court of the long-awaited action for Frontex’s non-contractual liability (WS and Others v Frontex). In addition to the problems of holding Frontex accountable for its wrongdoings, the lack of clarity in the legal framework in which Frontex operates does not only lead to possible instances of abuse of force (like in Alkhatib), but also to tragic oversights and blame games between the actors involved in border management.

The consequences of the inadequate regulatory framework became evident in the shipwreck of Cutro. On 26 February 2023, a boat carrying about 200 people sank in Southern Italy and at least 94 people died in one of Italy’s worst migrant boat disasters. The rescue operations of the boat should have been conducted by national authorities, and coordinated by Frontex. However, the rules for the surveillance of external sea borders, in the context of the operations coordinated by Frontex, stated that when Frontex’s units participating in joint operations encounter uncertainty, alert or distress regarding a vessel or individuals on board, they should promptly transmit “all available information” to the national rescue center (IMRCC) responsible for the search and rescue region (Article 9(2)(a) Regulation (EU) No 656/2014). The reference to “all available information” in the legislation, however, proved to be insufficient in this case. In fact, right after the tragic shipwreck, the Italian Prime Minister Giorgia Meloni stated that the communication from Frontex was not that of an emergency, and that the communication received was about a vessel with some elements (a significant thermal response and a flow of calls with Turkey) but that it did not indicate a vessel in distress.

The observations of the ECtHR in Alkhatib about the need for a clear and detailed legal framework in border operations thus resonate also for the action of Frontex, which operates under a legal basis whose vagueness poses significant challenges to accountability and human rights protection. 

The Problem of Scarcity of Evidence

The incident of Alkhatib was subject to administrative and criminal investigations. The administrative investigation assessed the following evidence: an expert report about the two vehicles and the testimonies of the actors involved in the incident. The investigation concluded in favor of the Greek coastguards and stated that the two crew-members were responsible for both the injuries and damages caused (§31-32). As regards the criminal procedures, even though several interviews were conducted, it was concluded that the circumstances of the injury had not been clearly established, making it therefore hard to determine the responsible author of the conduct (§50).

The Applicants argued that the different investigations did not meet the procedural requirements of Article 2 ECHR (§78) for the following reasons. First, the national authorities investigating the matter (the Kalmynos Maritime Authority) were not independent, as the same entity was involved in the incident. Second, the authorities failed to gather relevant evidence, such as a forensic examination into the injuries suffered by the two Syrian nationals, a detailed examination of the boats, a reconstruction of the incident, and an examination of the firearms. Finally, the Applicants claimed that the expert report was deficient, lacking detailed answers for example as to how the bullets from the motor ended up hitting the individual inside the boat.

Adjusting the Burden of Proof

The ECtHR reiterated that in order to be considered effective, an investigation must consist of  a meticulous, objective, and impartial analysis of all the relevant elements (see also Armani Da Silva v. the United Kingdom). The Court noted that a thorough investigation had not been conducted by the Public Prosecutor at the Maritime Court of Piraeus. In fact, the statements from the ten passengers were taken only on the day of the incident and contained stereotyped answers. In addition, the two wounded Syrian nationals had never been interviewed (although one was physically incapable of doing so). Finally, the Court noted that several further steps should have been taken by the national authorities (e.g., forensic report, ballistic report). These shortcomings led to the loss of evidence and affected the adequacy of the investigation, making it impossible to establish whether or not the use of force was justified in these particular circumstances (§94). The Court observed that due to the loss of evidence, it could not examine all the claims but only the facts that were undisputed or undeniably apparent from the given material. Since the facts were within the exclusive knowledge of the national authorities, the Court applied a partial reversal of the burden of proof and required the Greek Government to prove that there was no unreasonable use of force. It concluded that the Government did not prove that the absolutely necessity of the use of force and, therefore, violated Article 2 ECHR. The ECtHR took into account the significant lacuna of evidence in its assessment, and highlighted an issue that constantly arises in border management cases, and particularly in pushbacks and maritime operations – the lack of sufficient evidence.

A Question of Judicial Will

The issue was central in a recent case, Hamoudi v Frontex decided by the CJEU on 13 December 2023, concerning a pushback operation in the Aegean sea. In this case, the Applicant submitted a written declaration, a Bellingcat article concerning the events and multiple photographs taken from YouTube videos documenting the pushback. Typically, evidence is very hard to find, since migrants are often deprived of their phones, or not in a physical and mental state to consider gathering evidence.  Nonetheless, even when some evidence is available, like in this case, the General Court deemed it manifestly insufficient and did not seek additional proof.

The case illustrates the difficulty individuals face in proving wrongdoing and that even when evidence is available, the CJEU seems reluctant to make do with what it has. In contrast with this, the ECtHR, as demonstrated by this decision, acknowledges the challenges of evidence loss and adopts a more lenient approach in assessing the necessity of force under Article 2 ECHR, fulfilling its role as a guardian of human rights and individuals.

Concluding Remarks

Alkhatib is just one of many cases in which the ECtHR condemned Greece for its human rights violations regarding migration management (see, ex multis, here, here and here). The recidivism that these cases display shows that even though the ECtHR rules in favor of individuals, its dictum does not seem to solve the underlying systemic issues. These issues stem, in part, from vague legislation governing border operations, granting unfettered discretion to Frontex and Member States, as well as from numerous obstacles hindering the efforts to establish the truth, inadequately addressed by both the CJEU and national authorities. Thus, to date, ECtHR’s decisions have not prompted the necessary changes. However, despite this long-lasting failure, the discrepancies between ECtHR and CJEU case law provide valuable insights for strategic litigation, mindful of the constitutional bridges embedded in the two regimes.