On 7th January 2025, the European Court of Human Rights (ECtHR) delivered its judgment in the case of A.R.E. v. Greece concerning Greece’s unlawful pushbacks of asylum seekers to Turkey. 

The case concerned a Turkish national who had fled Turkey due to persecution for her political affiliations. She had already spent 28 months in prison, was appealing her conviction and sought international protection in Greece. However, she was detained by Greek police, stripped of her belongings and expelled to Turkey without her examination of her protection needs. 

The Court found violations of Article 3 and Article 13 together with Article 3 in respect of the applicant’s removal to Turkey without examining her claims; a violation of Article 13 in conjunction with Articles 2 and 3 on account of Greece’s failure to provide effective remedy for the applicant to challenge allegations of risk to life and ill-treatment occurring during her pushback; and a violation of Article 5 (1),(2) and (4) in respect of her detention prior to her expulsion to Turkey. 

This is a significant development in the Court’s jurisprudence on access to asylum procedures and collective expulsions at Europe’s borders. In its judgment, the Court recognised the existence of a systematic pushback regime operated by Greek authorities. It examined, among other things, numerous credible reports that monitored the methods used by Greek authorities including informal arrests and arbitrary detentions, the confiscation of personal belongings and forced returns to Turkey without examination of asylum claims. The Court concluded that on the basis of the evidence, there exists a consistent policy by the Greek authorities to remove migrants without assessing their needs for protection. 

On the same day, the Court also published its decision in the case of GRJ v Greece, where it acknowledged evidence of the systematic nature of push-backs of third country nationals to Turkey. However, the case was found to be inadmissible as the applicant could not establish victim status under Article 34 of the Convention.

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The AIRE Centre’s Intervention

The AIRE Centre alongside the European Council for Refugees and Exiles (ECRE) intervened as a third party in both cases. 

In our submissions, we referred, among other things, to the absolute and non-derogatory nature of the principle of non-refoulement, which cannot be superseded by any agreement or domestic law considering a third country safe. We submitted that in order to respect the principle of non-refoulement, the national authorities must carry out a real, effective, and rigorous examination of the situation of asylum seekers and refugees in the country of destination. Special consideration should be given to the vulnerable condition of asylum-seekers in general and to the specific circumstances of each individual to ensure that they enjoy full and effective access to national remedies. 

Our intervention, in reference to Article 53 of the Convention, stated that Contracting Parties to the Convention that are bound by EU law must ensure that rights are interpreted and applied in a manner which does not diminish the rights guaranteed under EU law, with specific reference to the EU Charter of Fundamental Rights and the EU asylum acquis. 

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Outcome and what it can mean for future pushback cases

The Court’s position in A.R.E. v Greece denounces the illegal practices carried out by Greek authorities at the Greece-Turkish border. 

The body of evidence relied on by the applicant in A.R.E v Greece included audiovisual evidence produced herself through her cell phone but also witness statements from a Greek-based lawyer and decision of a Turkish tribunal. A.R.E v. Greece and the decision in G.R.J v Greece highlight, however, that the evidentiary threshold on applicants in such cases is high. The point of evidentiary requirement, and specifically the burden placed on the applicant to reach that standard is a recurring theme in applications alleging illegal pushbacks and failures by Contracting States to process international protection claims and could be a continued point of contention in future push back cases. Indeed, a strict interpretation of these evidentiary requirements could present a greater obstacle to individual accountability given the difficulty for applicants to gather and retain evidence. 

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The 3 Grand Chamber hearings in February 2025

The recognition that these practices, in A.R.E, violate the prohibition of torture and ill-treatment, right to liberty and security and the right to an effective remedy could facilitate accountability in future pushback cases, not only those concerning Greece but numerous cases pending before the Court. 

On 12th February, the Grand Chamber of the Court will hear the cases of R.A. and Others v. Poland, H.M.M. v Latvia, and C.O.C.G v Lithuania. All three cases concern alleged pushbacks at the Belarusian border from August 2021 to 2023 and lack of access to effective asylum procedures and individual examinations of protection needs and deprivation of liberty of asylum seekers, including in one case, asylum seeking children. 

These are much anticipated hearings, notably as the allegations submitted coincide with the Belarus-EU border crisis of July 2021 and long-raised humanitarian and legal concerns of border management practices on the Eastern European borders. The three cases will provide clarity regarding obligations of States to guarantee effective access to asylum procedures and the absolute nature of the principle of non-refoulement. 

The issue was similarly addressed by the Court of Justice of the European Union (C-72/22) in 2022 in which the CJUE concluded that EU Member States cannot derogate from obligations under the EU asylum procedures directive and EU reception conditions directive in the event of a declaration of an emergency due to mass influx of migrants. The cases therefore raise an important question on the Court’s interpretation of EU law on the same issue.