Safi and Others and the Council of Europe’s role in preventing further tragedies off the Greek shores

by | Aug 21, 2023

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About Ella Dodd and Stephanos Stavros

Ella Dodd is the project coordinator at I Have Rights. IHR provides free individual legal assistance to migrants on Samos. It documents human rights violations on the island and engages in advocacy and strategic litigation to hold the Greek government and European institutions to account. Stephanos Stavros is a human-rights lawyer who has worked in the past for the ECtHR and other Council of Europe monitoring mechanisms. He takes on Human Rights Legal Project cases on a regular basis and has contributed to the Hellenic League of Human Rights’ submission in Safi.

In June 2023 a boat carrying migrants sank near Pylos (Greece), causing 300-650 deaths. The investigation into the incident is ongoing and, because of the interest that the country’s highest prosecution authorities have shown into it, there have been very few leaks regarding its progress. However, there are clearly several Article 2 ECHR issues that, sooner or later, will have to be addressed: Could the Greek coast guards have saved lives? Did they fail to do so? Might have they even contributed to the tragedy by attempting to tow the boat away from Greece’s territorial waters?

To those following the goings-on in Strasbourg the above questions sound strangely familiar, being reminiscent of the ones arising in Safi, a case about a previous shipwreck – near Farmakonisi – that has resulted in yet another Greek conviction for breaching the right-to-life provision of the Convention. The Safi judgment is hugely interesting. This is not only because of its subject matter, being the first to tackle the sensitive issue of human-rights violations in the Aegean. It is also because of how the ECtHR went about overcoming the difficulties created for the establishment of facts by the phenomenally inadequate domestic inquiry. The shortcomings of the latter were, of course, censured by the Court with a finding of violation of the procedural limb of Article 2. However, the ECtHR did not stop there. While accepting, with apparent regret, the broad lines of the official account of what had happened (§155), it found nevertheless a breach of the substantive limb of the same provision. Even assuming that the coast guards had not tried to push the boat back to Turkey, the Court considered that Greece had been responsible for the drowning of 11 passengers because of a seriously bungled rescue operation.

The Safi judgment has now been referred to the CoE CM for supervision of its implementation. The relevant procedures are lengthy and cumbersome and, in some cases, have failed to produce the required results. In other cases, however, they have led to significant changes at national level. A lot seems to depend on whether the CM will opt for ‘enhanced supervision’ or not.

For the moment, Safi has been allocated to the ‘standard’ track. It has also been suggested that it could be examined as part of an existing group of cases about ineffective inquiries into violence by law enforcement. This obviously underestimates its importance. It is also incorrect, as it ignores the finding of a substantive violation of Article 2.

Judgments go under enhanced supervision if they reveal major structural and/or complex problems. In an extensive Rule 9 submission, I Have Rights and the Human Rights Legal Project (civil-society organisations doing migration-related work on Samos) have pointed out a long series of cases currently pending against Greece in Strasbourg that concern human-rights violations during border control/surveillance and return operations. Many of these are about acts or omissions of the coast guard. The two CSOs have also made proposals on the general measures to be taken to comply with Safi, which proposals have been echoed in another submission by the Hellenic League for Human Rights (the oldest Greek human-rights NGO).

Contrary to what the Government has been arguing, Safi is not about an isolated incident. The Greek authorities have been given ample opportunity to comment on the above NGO submissions. Now that the authorities have come up with their own action plan for compliance with the judgment, there is nothing preventing the CM from acknowledging the existence of a structural (or at least a complex) problem and placing the case under enhanced supervision in a category of its own (human rights on the Greek borders or Greek coast guards’ acts and omissions).

This will enable the CoE CM to have a real say on one of the most pressing human-rights issues in Europe today, as it has been clearly shown by the June shipwreck. And if the CM decides to pull its institutional weight and presses Greece into doing something about independent human-rights border monitoring, it might also find itself playing a pivotal role (as it should, being one of the key pillars of the most successful regional human-rights system) in preventing further Pylos or Farmakonisi disasters.

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