CEDH · CASELAW;CLIN;ENG — 3 décembre 2024

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary January 2025 G.R.J. v. Greece (dec.) - 15067/21 Decision 3.12.2024 [Section III] Article 3 Expulsion Afghan applicant (unaccompanied minor) who failed to provide prima facie evidence of presence in Greece and “pushback” to Türkiye from island of Samos in context of established systematic practice of “pushbacks”: inadmissible Facts – The applicant, an Afghan national and unaccompanied minor, submitted that, fearing persecution by the Taliban, he had left his country in 2018 and secretly entered Iran, then Türkiye, with a view to reaching Europe and seeking asylum there. He had allegedly arrived on the island of Samos from Türkiye on a rubber dinghy carrying other migrants. He had gone to the Samos refugee camp in Vathy, where he had expressed his wish to apply for international protection in Greece. The following day, he had been forced onto a raft by coastguard officers and left adrift in the Aegean Sea, where he had later been recovered by the Turkish coastguard. Law – Article   3: (1) Specific context of the case – The present case had a very specific context and differed from other recent cases involving an alleged “pushback” under Article   3 of the Convention and/or a collective expulsion of aliens under Article   4 of Protocol No.   4. In addition, it raised extremely sensitive questions as to the establishment of the facts and, in particular, the burden of proof. The Government firmly denied any involvement in the impugned events by agents of the respondent State and rejected in its entirety the applicant’s version of events as vague, inconsistent and unsubstantiated. In particular, they disputed the applicant’s very presence in Greek territory and, in consequence, his “pushback” to Türkiye on the dates alleged. (2) Principles governing the standard and burden of proof – The principles set out in cases concerning, inter alia , secret detention appeared appropriate in the present case. Furthermore, similar standards had been relied on in a number of cases of alleged “pushback”. An applicant who claimed to have been the victim of a “pushback” could in principle satisfy the relevant standard of proof without having to allege that his or her “pushback” had been part of a systematic or generalised practice of “pushbacks” or to provide proof of the existence of such a practice. Nevertheless, the Court took the view that the opposite approach was justified in the present case. Firstly, the applicant had submitted that such a systematic practice had been in place at the time of his own “pushback”. Secondly, determining whether or not such a practice had been in place would help the Court to take account, if appropriate, of the general context at the relevant time. However, a systematic practice of “pushbacks” – even assuming such a practice was established – did not exempt an applicant from the duty to provide prima facie evidence to substantiate his or her allegations. In such cases, the applicant had to establish that the alleged “pushback” was linked to this practice by substantiating his or her account – which had to be detailed, specific and consistent – with concrete, comprehensive and concordant evidence on the basis of which the burden of proof would shift to the respondent Government. As to what might constitute prima facie evidence and shift the burden of proof to the respondent Government, particular importance was to be attached to documents in the case file, such as those prepared by other Council of Europe member States, including the State to which the applicant alleged that he or she had been returned. The issue of digital evidence produced for the purpose of establishing a “pushback” had not, to date, been subjected to particular scrutiny by the Court. The question of the authenticity and evidential value of audiovisual material could be crucial, in particular where any other evidence directly or indirectly supporting the applicant’s account was lacking. Lastly, the Court could also take into account any other evidence relied on by the applicants or included in the case file, such as the testimony of other persons, including that obtained in the context of domestic (criminal) proceedings. (3) Whether there was a systematic practice of “pushbacks” from Greece to Türkiye, including from the Greek islands – Having regard to the significant number, variety and concordance of the relevant sources, the Court concluded that there were strong indications to presume that there had existed, at the time of the events alleged, a systematic practice of “pushbacks” of foreign nationals, by the Greek authorities, from the Greek islands to Türkiye. The Government had not successfully refuted the indications in question by providing a satisfactory and convincing alternative explanation. (4) Evidence produced by the applicant and other evidence in the case file – The applicant’s account largely corresponded to the modus operandi that emerged from the reports of the relevant national and international institutions concerning “pushbacks” from Greece to Türkiye, including from the Greek islands. However, this did not suffice to prove the applicant’s alleged “pushback” in the present case. To ascertain that the alleged “pushback” had in fact occurred, it was also necessary, not only to demonstrate that the applicant entered Greece and was subsequently found to be in Türkiye on the dates alleged, but moreover to establish a link between those two facts. The Court nevertheless did not lose sight of the fact that even where it was established that a person had entered Greece on a certain date and had ended up in Türkiye the following day, proving what had happened in the interim, and in particular whether he or she was sent back to Türkiye by agents of the respondent State, was an extremely difficult task, given the inherently secret and unofficial nature of the acts in question. There were strong indications to presume that there had existed, at the time of the events alleged, a systematic practice of “pushbacks” from the Greek islands to Türkiye. However, the applicant, whose statements and allegations had appeared contradictory and inconsistent at times, had failed to provide prima facie evidence of his presence in Greece and of his “pushback” to Türkiye from the island of Samos on the dates alleged and, accordingly, could not claim victim status for the purposes of Article   34 of the Convention. Conclusion : inadmissible (incompatible   ratione personae ) (See Abu   Zubaydah v.   Lithuania , 46454/11, 31   May 2018, Legal Summary ; M.A. and Others v.   Lithuania , 59793/17, 11   December 2018, Legal Summary ; N.D. and N.T. v.   Spain [GC], 8675/15 et 8697/15, 13   February 2020, Legal Summary ; M.K. and Others v.   Poland , 40503/17 et al., 23   July 2020, Legal Summary ; D   v.   Bulgaria , 29447/17, 20   July 2021, Legal Summary ; A.A. and Others v.   North Macedonia , 55798/16 et al., 5   April 2022, Legal Summary ; al‑Hawsawi v.   Lithuania , 6383/17, 16   January 2024, Legal Summary ; A.R.E. v.   Greece , 15783/21, 7   January 2025, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .