CEDH · CASELAW;CLIN;ENG — 7 juillet 2022

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Greece - 5418/15 Judgment 7.7.2022 [Section I] Article 2 Article 2-1 Life Loss of life among refugees after specific oversights and delays by national authorities in   conducting and organising their rescue from capsized boat: violation Article 3 Degrading treatment Refugees brought from capsized boat to Greek island body-searched after being ordered by   law   enforcement personnel to disrobe together as a group in front of at least thirteen people: violation Article 2 Article 2-1 Effective investigation Boat sinking fatal to some refugees on board not effectively investigated: violation Facts – On 20 January 2014 a fishing boat with 27 Afghan, Syrian and Palestinian nationals on board sank off an island in the Aegean Sea while under tow by the Greek coastguard. The sinking caused the deaths of 11 people, including members of the applicants’ families. The proceedings concerning the potential criminal liability of the coastguard members involved in the incident were discontinued, as were those against the military personnel alleged to have subjected the applicants to ill-treatment after their arrival. Proceedings were also brought against two men who had acted as interpreters during the taking of the applicants’ statements; they were charged with perjury committed in the course of interpreting. One was acquitted. The case file before the Court was silent as to the outcome of the other’s case. The 16 survivors of the sinking complained to the Court, inter alia , that their lives had been endangered during the sinking by reason of the acts or omissions of the coastguard, that some of them had lost family members in the sinking, that the investigation into who should bear responsibility for the fatal accident had been inadequate, and that they had been ill‑treated after the coastguard had transferred them to the nearby island. Law – Article 2 (procedural): The criminal proceedings against the coastguard personnel could in principle have elucidated the circumstances of the case, established the facts and led to the punishment of any persons found   liable. Nine of the 16 applicants had provided witness statements for the first time in January 2014. According to them, there had been interpretation problems during the taking of their statements: the records of their statements did not reflect their true content, and they had never said that the boat had sunk as a result of the sudden movement of those on board. In September 2015 the Criminal Court had acquitted one of the two men who had acted as interpreters, and had found that he did not speak the applicants’ language. Whilst the Naval Court prosecutor had, by then, discontinued the case in June 2014, the authorities had been put on notice of the serious interpretation problems by the applicants’ press conference in January 2014. Despite the very serious flaws in the content of the applicants’ statements, these had formed an integral part of the case until its discontinuance by the Naval Court prosecutor. Once the authorities had had notice of the applicants’ allegations regarding those flaws, they should at least have investigated them before including the statements in the case file. Further, there were acutely complex aspects of the case to which only the authorities had been privy. It   was highly doubtful that the applicants had been able to participate adequately in the proceedings – which had concerned very serious allegations – without the coastguard communications recordings and the signal and radar data from the island’s military base which they had requested, as it was precisely that aspect which had lain at the crux of the case. Moreover, in discontinuing the case the prosecutor had simply observed that “there was no practice of push‑backs in the sense of a procedure of forcing back or towing … towards Turkish territorial waters …”, adding that it would be “unnecessary and of no use” to have regard to the particulars of the applicants’ allegations, since their account of the incident had rested on the premise that their boat had been under tow towards the Turkish coast, which, on his reading and appraisal of the evidence, could not have been the case. According to the applicants, Greece’s shipping minister had stated that the Greek authorities had “put [migrants] back on the Turkish side”, and that the number of migrants whom the coastguard had prevented from reaching Greece was a “multiple” of the 7,000 who had been arrested. The applicants had also put forward other allegations, which the prosecutor had not looked into. They had complained that the entire operation had not been organised and conducted in such a way as to ensure the protection of their and their family members’ right to life, that the rescue coordination centre had not been apprised of the situation and that the provisions of the relevant international instruments had not been complied with. Failure to pursue these obvious lines of inquiry had undermined the investigation’s ability to elucidate the circumstances of the sinking. Conclusion : violation in respect of all applicants (unanimously). Article 2 (substantive): The lack of a thorough and effective investigation by the national authorities meant that the Court was not in a position to make findings concerning details of the rescue effort, or to determine whether there had been an attempted push-back of the applicants towards the Turkish coast. However, some of the facts surrounding the incident were not in dispute between the parties or had   been put beyond question by the material in the case file and the decisions of the national courts. The coastguard could not be expected to effect the successful rescue of everyone imperilled at sea, especially as their obligation was one of means, not of result. On arriving at the scene they had had a range of options as to the actions they could take. However, those actions needed to be looked at in   the particular context of the operation in question. The captain and crew of a State vessel involved in the rescue of persons at sea would often have to make difficult and quick decisions and such decisions were, as a rule, at the captain’s discretion. Nonetheless it had to be shown that such decisions had been prompted by the overriding endeavour to secure the right to life of the persons in danger. In that regard the Court noted, first, that on arriving at the scene the crew of the coastguard vessel had been able to gain a precise picture of the fishing boat’s situation, including its condition and the presence of women and children on board. In point of fact, it was because of the condition of the fishing boat, which had been in a state of disrepair and unseaworthy, and the number of individuals on board, being in excess of the maximum permitted capacity, as well as the poor weather conditions, that the officer in charge of coordinating and managing illegal immigration-related incidents in the Aegean Sea had ordered the fishing boat to be towed to the safety of the nearby island. No explanation was forthcoming as to how the authorities had intended to transport the applicants to safety using their vessel, a high-speed pursuit craft unequipped for rescue operations. At no point had the coastguard personnel considered the possibility of requesting additional assistance, and the competent authorities had not received word to send a vessel better suited for rescue work to   the   scene. It   had   not been possible to distribute lifejackets beforehand. The first towing attempt had been thwarted when the fitting on the boat’s bow that was being used to secure the line had torn free. Even on the assumption that the fishing boat had capsized as a result of the sudden and panicked movements of those on board, such panic had been foreseeable in the circumstances. Nonetheless, the coastguard had attempted to tow the boat a second time. The Government had not explained why they had persisted despite the panic that had occurred the first time. The rescue coordination centre had not been apprised of the incident until the boat had already become half-submerged. Three minutes later it had sunk completely, with some of the applicants’ family members trapped in the cabin. Time was of the essence in such rescue situations, as drowning would occur in a matter of minutes. But it was not for the Court to speculate as to whether the   victims would have survived had the national rescue coordination centre been alerted sooner. In addition, a distress call for nearby vessels to make haste to the scene had not been transmitted until 12 minutes after the coastguard had belatedly informed the rescue coordination centre of the   emergency. What was more, the dispatch and arrival of available rescue resources had also been considerably delayed. At the time when the applicants and their family members had made their attempt to reach Greece, seaborne refugee arrivals had been on the rise. Considering the difficulty of the task that fell to the maritime authorities in such circumstances, the unpredictability of human conduct and the operational choices that would have to be made in terms of priorities and resources, the scope of the domestic authorities’ positive obligation needed to be interpreted in such a way as not to impose on them an impossible burden. That said, the Government had provided no explanation for the specific oversights and delays that had occurred in the present case. They had not claimed, for   example, that on the day of the incident more appropriate rescue resources had been unavailable because of a considerable influx of refugees necessitating their engagement elsewhere. The Government submitted that the lives of the people on the fishing boat had already been placed in jeopardy – before they had entered into Greece’s territorial waters and had been intercepted by the coastguard – by the situation of the vessel, the number of people it had been carrying and the lack of any lifesaving equipment on board. Article 2 could not be interpreted as guaranteeing every individual an absolute level of security in any activity in which the right to life might be at stake, in   particular where the person concerned bore a degree of responsibility for the accident whereby he or she had been exposed to an unjustified risk. In the present case, serious questions arose as to the conduct and organisation of the operation. Thus the authorities had not done all they could reasonably have been expected to do to afford all   the applicants and their family members the level of protection required by Article 2. Conclusion: violation (unanimously). Article 3 (substantive): On arriving on the island, 12 of the applicants had not been free to move about; they had been under the control of the authorities and had had to follow the instructions of law enforcement personnel. They had been body-searched after being made to disrobe together as a group, each in front of at least 13 people. They had been in an exceedingly vulnerable position, having just survived a sinking at sea and the loss of some of their loved ones. They had been under an extreme amount of stress – of that there was no doubt – and already in the throes of intense pain and grief. The body searches in question had not been duly warranted by a compelling security need or a need to prevent disorder or crime. They had been capable of inducing in the applicants a feeling of arbitrary treatment, inferiority and anxiety evincing a degree of humiliation exceeding that which could otherwise be tolerated as an inevitable consequence of a body search. The searches in issue had amounted to degrading treatment. Conclusion: violation (unanimously). Article 41: EUR 100,000 to the first applicant; EUR 80,000 jointly to the second, fourth and fifth applicants; EUR 40,000 to the seventh applicant; and EUR 10,000 to each remaining applicant, in respect of non-pecuniary damage. (See also Osman v.   the United Kingdom , 23452/94, 28   October 1998, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes