Restitution for Pushback Victims

Despite the trauma caused by the brutality of pushbacks, victims often attempt to return to the expelling state’s territory, driven by desperation and the search for a better life. In doing so, they risk repeated violations of their rights. This vicious circle has to be broken. As reparation for the violation of their rights, restitution allowing for their return to the territory of the state responsible for the violation should be granted. This victim-centered approach allows their primary goal of re-entry into the state territory to be achieved through legal means.

Pushbacks – a longstanding albeit unlawful practice

European states pride themselves on the principles of human rights and the rule of law but turn a blind eye to the violations of these principles occurring in the attempt to prevent migrants from crossing their borders. A small NGO, Aegean Boat Report, monitors the situation of people on the move in the Aegean Sea: On Sunday 14 July 2024, 109 people, including 21 children, were found floating in seven life boats. Many had been kidnapped by masked men on Greek islands, robbed, beaten, and left helplessly drifting in the middle of the sea. The NGO publishes reports like this every few days. In June alone, 37 illegal pushback cases by the Greek Coast Guard were documented, affecting 957 people.

Pushbacks, a practice where migrants are apprehended during or shortly after crossing the border and expelled from the state’s territory without individual case assessment, blatantly violate human rights and migration laws. Yet, they have persisted as systematic border policy since 2016.

Restitution as a primary form of reparation: legal perspectives and migrant interests

Rule of law demands access to justice through legal remedies in the event of unlawful conduct. The outcome of remedial proceedings in the form of concrete measures to redress the harm is referred to as reparations. In state responsibility law, the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) define different forms of reparation, emphasizing restitution – the reestablishment of the situation that existed before the unlawful act – as primary reparation form, when materially possible and proportionate (Art. 35 ARSIWA). Compensation is only considered in so far as such damage cannot be adequately made good by restitution (Art. 36 I ARSIWA).

I argue that restitution should be the primary form of reparation offered in pushback scenarios involving returning the pushback victims to the expelling state’s territory. This may require physical transfer and judicial actions to annul the expulsion. Such actions can be conceived as reparations for violations related to expulsions, particularly the prohibition of refoulement (Arts. 2 and 3 ECHR) and the prohibition of collective expulsions of aliens (Art. 4 of Protocol No. 4 ECHR). However, restitution is materially impossible for other violations typical of pushbacks, like violations of the right to life (Art. 2 ECHR), the prohibition of torture (Art. 3 ECHR), and the provision on the protection of property (Art. 1 of Protocol No. 1 ECHR).

There are several compelling reasons to establish restitution as primary redress method in pushback scenarios. First, human rights reflect the core of human dignity, consequently their violation often has severe consequences. The most fervent wish of victims of human rights violations is to turn back time, and the law should at least be used to get as close as possible to the victim’s desire. Second, unlawful expulsions cause non-pecuniary losses, so financial compensation alone cannot fully restore the victims’ pre-injury state. Restitution is more appropriate since the victims did not suffer financial loss. Moreover, there is the possibility that compensation money would be used to cross the border irregularly again, for example by paying smugglers, thereby incentivizing a circle of irregular border crossings and pushbacks.

In Germany, a special state liability claim directed at mere restitution, called “Folgenbeseitigungsanspruch”, was used in cases from 2019 and 2021 to obtain rulings requiring the State to enable the return of the claimants expelled under the “Seehofer-Deal”. This agreement between Germany and Greece permitted the deportation of migrants, previously registered in Greece and apprehended immediately after crossing the border, back to Greece within 48 hours without any legal protection or procedure. The judgments demonstrated a successful application of restitution for intra-European pushbacks. However, since a claim for restitution is not provided for in other domestic legal systems, such as in Greece where illegal pushbacks regularly occur, obtaining similar decisions in these legal systems is difficult.

Reparations and the role of the ECtHR

The ECtHR plays a crucial role in determining how human rights violations are remedied, both within domestic legal systems and in its own proceedings. However, the ECtHR has yet to firmly establish restitution as a primary form of reparation, particularly in the context of pushbacks.

At the primary level of human rights protection – the domestic legal systems – restitution could be guaranteed through the right to an effective remedy under Art. 13 ECHR. This can be approached from two perspectives: the state’s obligation to provide appropriate redress and the criteria for the effectiveness of a remedy. Regarding the first, the court could establish restitution as starting point for determining appropriate redress. Concerning the second, the effectiveness of a remedy could be measured by its ability to achieve its primary objective – undoing the injustice, ideally by restoring the situation prior to the violation.

However, the ECtHR has, so far, not provided clear guidance on the nature of the redress required under Art. 13 ECHR. Instead, it emphasized the state’s discretion in the matter. It held that the protection offered by Art. 13 ECHR is not specific enough to mandate a particular form of remedy, allowing domestic authorities to choose compensation over restitution without justification or assessment of proportionality. Furthermore, according to its jurisprudence, the criteria of effectiveness as well as the overall scope and extent of the obligations under Art. 13 ECHR vary depending on the nature of the violated right. Specifically, when the prohibitions of refoulement (Arts. 2 and 3 ECHR) and collective expulsions of aliens (Art. 4 of Protocol No. 4 ECHR) are violated, the Court has focused on whether domestic remedies effectively protect applicants from unlawful expulsions, considering preventive measures but not restorative ones.

At the secondary level of protection, the ECtHR intervenes after all domestic remedies have been exhausted. This provides for an additional platform to promote restitution.

Art. 41 ECHR’s wording limits the Court’s own power to award redress, as it may only grant just satisfaction to injured parties (traditionally through financial compensation), if domestic law provides only a partial reparation. However, the Court began to utilize the gateway of Art. 46 (1) ECHR to emphasize non-monetary reparations. This Article mandates that states must abide by the Court’s final judgments. According to the court’s interpretation, this may include the obligation to remedy a confirmed violation of the Convention through reparational measures that go beyond mere financial compensation. While the states enjoy some discretion on how to comply with judgments, the execution process is supervised by the Council of Europe’s Committee of Ministers (Committee of Ministers). According to its rules of procedures, the Committee of Ministers examines whether individual measures have been taken to ensure that the applicant is put, as far as possible, in the same situation as before the violation, thereby emphasizing restitution. If a state fails to implement a judgment adequately, the Committee can initiate infringement proceedings under Art. 46 (4) ECHR.

So far, infringement proceedings have occurred twice, both involving cases of unlawful, prolonged detention. In these instances, the Court stressed that the states must bear in mind the priority of restitution when exercising their choice of individual measures to execute judgements, explicitly referring to Art. 35 ARSIWA. It emphasized that an exemption to the rule of restitution is only conceivable if the state can demonstrate that providing restitution is either impossible or requires a disproportionate burden.

Additionally, the ECtHR is increasingly willing to anticipate the supervision mechanism and to request remedial measures already in its judgments. This happens when the ECtHR deems it necessary to assist the state in remedying systematic violations or when it sees only one way to fully implement the judgment. While it is welcome that the court is increasingly taking a position on necessary remedial measures, this development is still pending with regards to restitution in pushback scenarios. An examination of case law reveals that the Court has called for restitution under Art. 46 (1) ECHR primarily in property disputes or cases of unlawful detention, but never in cases of unlawful expulsion involving violations of the prohibition of refoulement (Arts. 2 and 3 ECHR) or the prohibition of collective expulsions (Art. 4 of Protocol No. 4 ECHR). The Court has requested specific remedial measures under Art. 46 ECHR in only two expulsion-related cases. In M.S.S. v Belgium the Court takes position on the prevention of any further unlawful expulsions from Greece to the applicant’s home country but fails to address the already executed expulsion from Belgium to Greece concerning individual remedial measures. In Hirsi Jamaa and Others v. Italy, which involved pushbacks at sea, the court specified remedial measures for those expelled in violation of the non-refoulement principle and mentioned diplomatic assurances to prevent ill-treatment.

Since the Court has confirmed the priority of restitution within the framework of the ECHR and has referred to the ARSIWA articles in its jurisprudence, the court should apply this approach stringently in cases of unlawful expulsion and take a position on it under Art. 46 ECHR. There is room for the Court to incentivize restitution under Art. 46 ECHR, considering pushbacks constitute systematic human rights violations that lead to recurring cases before the Court.

Advocacy for a progressive stance on restitution

Overall, it appears that the ECtHR views expulsions as actions resulting in unchangeable circumstances, not allowing for restitution. The Court stated that the effects of a violation of Art. 13 ECHR through expulsions are potentially irreversible and has expressed doubts on how domestic authorities could offer suitable redress without a suspensive effect of remedies in refoulement cases. Consequently, it focuses on preventive remedial measures. Moreover, the Court limits its comments on restitution to infringements of certain legal positions – the freedom of movement in detention cases and ownership in property cases – which appear to be more profound or of longer duration than the individual’s presence in a state’s territory prior to a pushback.

However, there is no formal legal basis to justify this approach, that limits restitution solely to specific legal positions or to require an extended duration of holding a legal position for restitution to be applicable. Particularly when the non-refoulement principle is violated through pushback practices, there exists an inherent risk to the life or well-being of the victim in the receiving country that can manifest at any time. This justifies the presumption of an ongoing violation and the need for restitution to protect the victims from the realization of these risks.

Hence, the ECtHR is urged to take a resolute stance on restitution in the context of pushback scenarios. This would address the states’ perception of immunity regarding pushback actions and would signal states that expulsion from their territory is ultimately futile because victims have an enforceable right to re-entry. This change could undermine the purpose of pushbacks and contribute to ending violence and systematic human rights violations at EU borders. Lastly, human rights lawyers should pursue restitution in legal proceedings, pushing for a modification of the Court’s current reparation doctrine toward the restitution principle.

However, such a victim-centered approach is regrettably unlikely to gain traction given the states’ recent efforts to keep irregular migrants out at any cost. Examples include the CEAS reform’s border procedure and Finland’s legalization of pushbacks at the Russian border in violation of international obligations. This prevailing sentiment among European states will also affect the ECtHR’s stance.