Feeble Recognition of a Systematic Pushback Practice

In A.R.E. v. Greece (15783/21) and G.R.J. v. Greece (15067/21), jointly published at the beginning of 2025, the European Court of Human Rights (ECtHR) finally acknowledged Greece’s long-standing systematic practice of violently pushing people back at its land and sea borders. While this is already remarkable, both rulings stand out for the Court’s thorough evidentiary analysis and new standards for proving pushbacks. This was to be expected after a joint Chamber hearing had taken place in June last year which focused almost exclusively on evidence. However, the ECtHR failed to fully incorporate the context of a systematic practice, instead maintaining a high threshold for evidencing individual instances of pushbacks.

Pushback at the Evros River: A.R.E. v. Greece

In its judgment A.R.E. v. Greece, the Court ruled on the pushback of a Turkish woman at the Greek-Turkish border along the Evros River. After being sentenced to more than six years in prison for suspected involvement in political opposition in Türkiye, the applicant sought international protection in Greece and entered the country in 2019. Fearing a pushback, she meticulously documented her arrival in Greece with photos and videos, shared her live location with her brother living in Greece, and contacted a Greek lawyer for legal assistance (see para. 14-29 and the investigation by Forensic Architecture). Following her detention in two different border guard stations, the applicant and others were loaded on a small inflatable raft at the Evros riverbank and sent back to Türkiye, where she was arrested upon arrival.

Greece fully denied the applicant’s account of events, including her presence on Greek territory. Domestic criminal proceedings were dismissed due to an alleged lack of evidence. However, the ECtHR found it established “beyond reasonable doubt” that the incident had taken place (para. 267). The Court concluded that the pushback had violated her rights under Articles 3 and 13 of the European Convention of Human Rights (ECHR). It also found that her detention constituted a violation of Article 5 §§ 1, 2, and 4, and the lack of an effective domestic remedy a violation of Article 13 in conjunction with Articles 2 and 3.

Drift-back in the Aegean Sea: G.R.J. v. Greece

The decision G.R.J. v. Greece concerns the pushback of an Afghan minor from the island of Samos to Türkiye in 2020. The applicant stated that upon his arrival by boat, he went to a refugee camp on the island, where he expressed his wish to apply for international protection and disclosed his age to Greek officers. Nevertheless, he was forced onto a coast guard vessel, and later abandoned at sea in an inflatable engine-less raft, left adrift in Turkish territorial waters – a practice known as “drift-backs” reportedly adopted by Greece in the Aegean Sea since 2020.

Greece firmly denied the applicant’s account. The ECtHR acknowledged a systematic practice of pushbacks from Greek islands to Türkiye but dismissed the case on an individual basis, deeming it inadmissible ratione personae after a preliminary establishment of facts. The Court found the applicant’s statement incoherent and the submitted photo and video footage inconclusive and that he thus failed to provide prima facie evidence (para. 205-217, 225). Still, the Court did not rule out that on the alleged date a group of people, including minors, had been pushed back to Türkiye. However, the submitted evidence was insufficient for the Court to conclude that the applicant was part of it (para. 223).

Proving pushbacks in light of a systematic practice

Both rulings prominently deal with questions of facts rather than questions of law. While states often shift the focus in pushback cases from legal questions to factual disputes by denying crucial facts, recent case law has increasingly emphasized evidence (see e.g. O.M. and D.S. v. Ukraine, B.Y. v. Greece, M.A. and Z.R. v. Cyprus). Greece’s latest strategy appears to involve obstructing the establishment of facts through a blanket denial of the applicant’s version of facts. This approach contrasts, for instance, with the ECtHR’s previous pushback judgment, M.A. and Z.R. v. Cyprus, where the state did not contest the incident itself, allowing the Court to establish the facts more effectively.

The Court has explicitly acknowledged that the state’s complete denial of alleged facts places the applicant in an inherently difficult evidentiary position, in which they may be unable to establish the veracity of their account (A.R.E., para. 218; G.R.J., para. 183). Pushbacks are intrinsically difficult to prove due to their secretive nature and the deliberate practices designed to obstruct evidence collection, such as the confiscation or destruction of mobile phones (see e.g. A.R.E. para. 31, 266; G.R.J., para. 18, 207).

In this context, it is groundbreaking that, “having regard to the large number, diversity, and concordance of the relevant sources”, the Court has explicitly confirmed Greece’s “systematic practice” of pushbacks at its sea and land borders (A.R.E. para. 226-229; G.R.J., para. 187-190, unofficial translation, applicable to all following citations). Applicants, NGOs, and further third-party interveners have long argued that the individual cases presented are part of a systematic and widespread state practice, which must be assessed within this broader context. The ECtHR has now acknowledged that such context can be relevant for evaluating individual cases. While proving a systematic practice is not necessary to substantiate an individual incident, it may “help the Court to take account, where appropriate, of the general context” prevailing at the relevant place and time (A.R.E., para. 217; G.R.J., para. 182).

Drawing on jurisprudence from cases of secret detention and enforced disappearances (see references in A.R.E., para. 208 and G.R.J., para. 173), the Court addressed the evidentiary challenges posed by the “lack of identification and personalized treatment” by lowering the standard of proof to prima facie evidence. Previously, the applicant needed to provide a “detailed, specific and coherent account” which would then shift the burden of proof to the respondent state (see N.D. and N.T. v. Spain, para. 85), as the Court recalled in both rulings. However, the Court’s case law also shows that to establish prima facie evidence, it regularly considered further corroborating evidence (see e.g. M.A. and Others v. Latvia and A.A. and Others v. North Macedonia). The Court required at least the explanation, of why further evidence could not be furnished (see e.g. R.D. v. Hungary, para. 5) and, in some cases, simply labeled strong evidence as prima facie evidence (see e.g. the scholarly criticism on M.H. and Others v. Croatia and the judgment’s separate opinion).

Meeting the threshold of prima facie evidence

The acknowledgment of a systematic practice is a significant step forward. However, the Court has clarified that a systematic practice alone does not constitute evidence of an individual incident. As the ECtHR has now ruled in both cases (A.R.E., para. 217; G.R.J., para. 182), to provide prima facie evidence, the applicant:

“must establish that the alleged refoulement is linked to this practice by supporting their account – which must also be detailed, specific and coherent, i.e. free of contradictions – with concrete, detailed and concordant evidence.”

This link between the individual case and the recognized practice was established as the incidents fit into the modus operandi of Greece’s systematic practice (see A.R.E., para. 230; G.R.J., para. 191). For the individual cases, the Court further required the applicants to show that they “entered Greece and then found [themselves] in Turkey on the dates alleged, but also establish a link between these two facts” – supported by their statements. At the same time, the Court emphasized (A.R.E., para. 230; G.R.J., para. 191):

“even when it is established that a person entered Greece on a given date and found [themselves] in Turkey the following day, it is extremely difficult to prove what happened in the meantime, and in particular that the person concerned was returned to Turkey by agents of the respondent State, given the by definition secret and unofficial nature of the actions in question.”

With this finding, the ECtHR explicitly recognizes the intrinsic evidentiary difficulties applicants face in pushback cases. Notably, only in A.R.E. v. Greece did the Court conclude that the additional evidence corroborated the applicant’s testimony. In contrast, in G.R.J. v. Greece, the Court overemphasized details and indicated confusion regarding the submitted photos and videos. The applicant had changed his statement about which pieces of evidence depicted him (para. 199-216), according to the Court, pointed to two different persons (para. 217). As a result, the Court found the applicant’s account contradictory and inconsistent (para. 225).

Missed opportunities in the assessment of evidence

Although the Court acknowledged both the evidentiary difficulties in pushback cases and a systematic pushback practice in Greece, it missed the opportunity to properly incorporate these findings into its assessment of evidence.

First, the ECtHR did not clearly articulate the evidentiary benefit of establishing that a case fits into the modus operandi of a systematic practice. For prima facie evidence on the individual case, where such a systematic practice has been confirmed, it should suffice for the applicant to demonstrate their presence on the respondent state’s territory and their subsequent presence in the third state. Here, the systematic practice should serve as the link between both events, allowing the assumption that the applicant was pushed back. Consequently, the burden should then shift to the state to provide a credible alternative explanation.

Second, in the context of a systematic practice, proving the presence on a state’s territory must be easier than in regular cases. This is because these practices are specifically designed to prevent evidence collection and to avoid state registration, as illustrated in G.R.J. v. Greece and recognized by the Court. In such cases, the ECtHR should apply a prima facie threshold that requires less than it did in prior case law, where no systematic practice was acknowledged.

Third, requiring supporting evidence, in particular material evidence, in addition to the applicant’s “detailed, specific and coherent” account sets an unduly high threshold for prima facie evidence, further blurring the distinction to the regular standard of proof “beyond reasonable doubt”. The exceptionally well-documented pushback in A.R.E. v. Greece cannot be the expected standard. Here, the applicant was able to reproduce an unusually high variety of evidence from different sources for her presence in Greece and Türkiye (including the ECtHR’s favored state-produced evidence such as the decision of the Criminal Court of Izmir).

Lastly, Greece’s misleading denial of a systematic pushback practice had no apparent consequences. During the hearing, Greece argued that the applicants’ statements “defy logic” and persistently sought to undermine their credibility. Instead of fulfilling their obligation to cooperate (Article 38 ECHR), Greece deliberately obstructed the establishment of facts and used all possibilities to evade scrutiny. This strategy goes hand in hand with Greece´s obstruction on the domestic level: in A.R.E. v. Greece, the ECtHR noted obiter dictum that no effective domestic remedy for pushbacks exists (para. 189-201). In Strasbourg, the ECtHR has the authority to draw negative inferences from a party’s failure to participate effectively in the proceedings (Rule 44C of the Rules of Court). However, it failed to do so, missing an opportunity to hold Greece accountable (contrast, for example, Akkad v. Türkiye).

Questions of evidence obscure human rights violations 

Upcoming rulings will ultimately decide how the ECtHR interprets the evidentiary standards set in A.R.E. v. Greece and G.R.J. v. Greece. In February, there will be a joint Grand Chamber hearing for three pushback cases concerning the border between Belarus and Poland (R.A. and Others v. Poland), Latvia (H.M.M. and Others v. Latvia), and Lithuania (C.O.C.G. and Others v. Lithuania). All three cases also raise critical evidentiary issues. As cases are only exceptionally relinquished to the Grand Chamber, the forthcoming rulings are expected to significantly shape the ECtHR’s jurisprudence on pushbacks.

The ECtHR should address states’ tactic of blanket denial of the applicants’ accounts. This strategy continues to shift the spotlight to questions of facts and overshadows that such pushbacks unequivocally violate human rights. Ordinarily, the ECtHR is not supposed to answer questions of facts. It is the intentionally secret and irregular character of pushbacks that obstructs access to effective domestic legal proceedings. This leads to Strasbourg’s current role and distracts attention from binding human rights standards. It would be highly desirable – albeit wishful – if states were to play a constructive role in uncovering human rights violations.