Greece awards 330,000 euros to refugees for violation of the right to life and humiliating treatment! Death of 11 people from the sinking of a fishing boat and humiliating body control of survivors!
JUDGMENT
Safi and other v. Greece 07.07.2022 (app. no. 5418/15)
SUMMARY
The case concerned the sinking on 20 January 2014 of a fishing boat transporting 27 foreign nationals in the Aegean Sea, off the island of
Farmakonisi, resulting in the death of 11 people, including relatives of the applicants.
The European Court of Human Rights held, unanimously, that there had been:
a violation of Article 2 (right to life) of the European Convention on Human Rights under its
procedural head. The Court found that there had been shortcomings in the proceedings and
concluded that the national authorities had not carried out a thorough and effective investigation
capable of shedding light on the circumstances in which the boat had sunk.
a violation of Article 2 (right to life) on account of the failure to comply with the positive obligation
under this Article. The Court found that the Greek authorities had not done all that could reasonably
be expected of them to provide the applicants and their relatives with the level of protection
required by Article 2 of the Convention.
a violation of Article 3 (prohibition of inhuman or degrading treatment), concerning 12 of the
applicants who had been on board the boat and who, after it had sunk, had been subjected to
degrading treatment on account of the body searches they had undergone on arriving in
Farmakonisi.
PROVISIONS
Article 2
Article 3
COMMENT
The death of 11 people after the sinking of a boat creates an obligation for the state to carry out a thorough examination of the conditions that caused their death. Unfortunately the investigation carried out by the domestic authorities led to a condemnation of the country for the procedural aspect of the right to life. The ECtHR ruled that the search had not been organized and conducted in such a way as to ensure the protection of the lives of the refugees, that the coordination center had not been informed to assist to the rescue effort and that international regulations had not been observed. The sloppiness of dealing with a serious matter was completed by appointing as translator and interpreter of a person who did not know the language he was interpreting!
Greece was condemned for the humiliating treatment of the shipwreck survivors, who were ordered to strip, bend over and twist themselves in front of the other castaways and a group of soldiers. According to the ECtHR, such a control was not necessary for the security of the country!
The ECtHR awarded the truly large amount of 330,000 euros for the total non pecuniary damage of the applicants. Amount indicating the magnitude and seriousness of the violations.
PRINCIPAL FACTS
The application was lodged by a group of 16 applicants, made up of 13 Afghan nationals, two Syrian
nationals and a Palestinian national. It concerned the sinking on 20 January 2014 of a fishing boat
transporting 27 foreign nationals in the Aegean Sea, off the island of Farmakonisi. The applicants
were on board the boat, the sinking of which resulted in the death of 11 people, including relatives
of the applicants.
According to the applicants, the coastguard vessel was travelling at very high speed in order to push
the refugees back towards Turkish waters, and this caused the fishing boat to capsize.
According to the national authorities, the boat was being towed towards the island of Farmakonisi in
order to rescue the refugees, and it capsized because of panic and sudden movements among those
on board.
THE DECISION OF THE COURT…
Article 2: concerning the investigations by the national authorities
The Court observed that criminal proceedings had been instituted against the coastguards involved
in the events in question. Such proceedings were in principle capable of shedding light on the
circumstances of the case and leading to the establishment of the facts and, where appropriate, the
punishment of those responsible. However, the Court noted the following with regard to the
proceedings.
Firstly, some of the applicants complained of problems of interpretation when statements had been
taken from them. They submitted that the records of their statements did not reflect their true
content and that they had never said that the boat had sunk as a result of the sudden movements of
those on board. Proceedings had been instituted against the two interpreters for perjury in the
course of their professional duties, and the Criminal Court, which had acquitted one of the
interpreters, had acknowledged that he did not speak the applicants’ language. The authorities had
been informed of these serious problems of interpretation as early as 23 January 2014. However,
despite the fact that there had been serious flaws in the records of the statements, they had
remained an integral part of the case file until the public prosecutor had discontinued the
proceedings. The Court took the view that, once the authorities had become aware of the
applicants’ allegations concerning such flaws, they should at least have investigated them before
including the statements in the case file.
Secondly, the applicants had asked the public prosecutor to order the removal of the fishing boat
from the site and its examination by experts, to provide them with the recording of communications
between the coastguards and data from the signal and radar at the Farmakonisi military base and to
grant them leave to appoint an expert. Only the first two of those requests had been accepted by
the prosecutor. The Court found that the case had involved very complex aspects known only to the
authorities. In the Court’s view, it was highly questionable whether the applicants had been able to participate properly in the proceedings, which had concerned extremely serious events, without the recordings they had requested, since the essence of the case lay precisely in that aspect.
Thirdly, the Court observed that, in discontinuing the case, the public prosecutor had merely stated
that “there [was] no practice of pushbacks as a procedure for removal or towing … to Turkish
territorial waters…”. It noted that, according to the applicants, the then Minister for Naval Affairs
had previously stated that the Greek authorities “sent [migrants] back to the Turkish side” and had
added that the number of migrants who had been prevented from arriving in Greece by the
coastguards was a “multiple” (of the 7,000 who had been arrested). The applicants had also made
other allegations, which had not been examined by the competent public prosecutor. They had
complained, in particular, that the entire operation in question had not been organised and
conducted in such a way as to guarantee protection of their right to life and that of their relatives,
that the coordination and research centre had not been informed and that the provisions of the
relevant international instruments had not been complied with. In the Court’s view, these were
obvious lines of inquiry which had not been pursued, thus undermining the ability of the
investigation to determine the exact circumstances in which the boat had sunk.
Accordingly, there had been a violation of Article 2 of the Convention under its procedural head in
respect of all the applicants.
Article 2: concerning positive measures for the protection of life
The Court considered that it could not express a position on a number of specific details of the
operation that had taken place on 20 January 2014 or on whether there had been an attempt to
push the applicants back to the Turkish coast. It pointed out that this inability stemmed largely from
the lack of a thorough and effective investigation by the national authorities.
However, it observed that some of the facts were not disputed between the parties or were
undeniably apparent from the evidence in the case file and the decisions of the domestic courts.
On arrival at the scene, the crew of the PLS 1362 had apprised themselves of the precise conditions
in which the fishing boat had been sailing, including its physical condition, and the fact that there
had been women and children on board. According to the Government, it was precisely because of
the condition of the boat, which was badly maintained and unfit for navigation, the number of
passengers, which had exceeded the maximum permitted limit, and the adverse weather conditions
at the scene that orders had been given for the boat to be towed to safety in Farmakonisi.
However, there was no explanation as to how the authorities had intended to transport the
applicants to safety using a vessel, the PLS 136, which was a speedboat and lacked the necessary
rescue equipment. Furthermore, the coastguards had not at any point considered the possibility of
requesting additional assistance, or else the relevant authorities had not been informed that a vessel
more suitable for a rescue operation should be sent to the scene. According to the applicants’
allegations, the passengers rescued from the fishing boat had not been given lifejackets because
none had been available on the PLS 136.
In addition, the first stage of the towing operation had been interrupted when the anchor point on
the bow of the boat had become detached. Even assuming that the fishing boat had capsized, as the
Government maintained, on account of panic and sudden movements among those on board, the
Court could only observe that such panic was to be expected, given the conditions prevailing at the
scene. Nevertheless, the coastguards had made a second attempt to tow the boat. The Government
did not explain why they had insisted on carrying out the second attempt, despite the fact that panic
had been observed the first time round.
Furthermore, the coordination and research centre had not been informed about the incident until
2.13 a.m., by which time the fishing boat had already half sunk. By 2.16 a.m. the boat had sunk
completely and some of the applicants’ relatives had been trapped inside the cabin. The Court
emphasised in that regard the paramount importance of the time factor in such a situation.
Furthermore, a “Mayday Relay” call alerting any ships sailing in the area so that they could quickly
make their way to the scene had not been sent until 2.25 a.m., 12 minutes after the coordination
centre had been belatedly informed of the sinking by the coastguards. There had been a further
significant delay in the mobilisation and arrival of the available rescue resources: the helicopter
requested by the national coordination and research centre at 2.29 a.m. had not arrived on the
scene until 3.52 a.m.; the provision of a naval vessel had not been requested by the national
coordination and research centre until 2.45 a.m. and the first coastguard vessel, the PLS 616, had
not arrived on the scene until 3.32 a.m.
The Court noted that the Government had not provided any explanation as to the specific omissions
and delays in the present case and that serious questions arose as to the manner in which the
operation had been conducted and organised. Accordingly, it found that the Greek authorities had
not done all that could reasonably be expected of them to provide the applicants and their relatives
with the level of protection required by Article 2 of the Convention. There had therefore been a
violation of that Article in respect of all the applicants.
Article 3: concerning degrading treatment (in respect of 12 of the applicants)
The Court noted that on arriving in Farmakonisi, the applicants concerned had not been free to
move about. They had been under the control of the authorities and had thus been expected to
follow instructions from the security forces. It further observed that the survivors of the sunken boat
had been taken to an open-air basketball court and ordered to undress. They had then been
subjected to a body search in front of the other survivors and a group of soldiers. They had been
asked to bend forward and turn around.
The Government did not explain why the strip-search had been necessary to ensure safety. Nor did
they argue that there had been any other public-policy considerations requiring the search to be
carried out. Moreover, they did not indicate that there had been any suspicion that the applicants
had been armed or posed a threat to the security forces’ safety. On the contrary, on arriving in
Farmakonisi the applicants had been exhausted, shocked by the events and worried about the fate
of their relatives.
As to the conditions in which the search had taken place, the Court observed that the applicants
concerned had been forced to undress at the same time and in the same place, in front of at least
13 other people. It was mindful of the fact that the applicants had been in an extremely vulnerable
situation: they had just escaped from a sinking boat and some of them had lost their relatives. They
had undoubtedly been in a situation of extreme stress and had already been experiencing feelings of
intense pain and grief.
Against that background, the body searches carried out on the 12 applicants concerned in such
conditions could not be said to have been duly based on any compelling security requirements or
the need to prevent disorder or crime.
The Court found that the search could have caused these applicants to experience feelings of
arbitrariness, inferiority and anxiety resulting in a degree of humiliation exceeding the – unavoidable
and hence tolerable – level that strip-searches inevitably involved. It concluded that the search that
these applicants had undergone in such circumstances had amounted to degrading treatment within
the meaning of Article 3 of the Convention. There had therefore been a violation of that Article in
respect of the 12 applicants concerned.
Just satisfaction (Article 41)
The Court held that Greece was to pay a total of 330,000 euros (EUR) in respect of the nonpecuniary
damage sustained by the applicants, broken down as follows: EUR 100,000 to one of the
applicants, EUR 80,000 to three of the applicants jointly,
