ECtHR - A.R.E. v. Greece, Application No. 15783/21, 07/01/2025

Facts:

The application concerns the alleged refoulement of the applicant from Greece to Türkiye, relying on Articles 2, 3, 5 and 13 ECHR. The applicant, a Turkish national, fearing persecution due to an alleged affiliation with the opposition FETÖ/PDY organisation and after being imprisoned, crossed the Evros River into Greece with two other Turkish nationals to seek asylum. Upon arrival near Nea Vyssa, she expressed her intention to apply for asylum, but Greek police officers arrested the group. They were informally detained at the Neo Cheimonio border guard station, without registration or legal safeguards, and later transferred to a larger police facility where their belongings were confiscated. The group was then loaded onto a truck with other migrants and transported to the banks of the Evros River. There, masked individuals carried out a pushback. Despite the applicant’s repeated appeals for asylum and warnings of the risk she faced, they were forcibly returned to Türkiye in an overcrowded inflatable boat. Once back on Turkish territory, the applicant was arrested and reimprisoned. Meanwhile, her brother and lawyer made several unsuccessful attempts to locate her, receiving no information or assistance from the Greek authorities.

A criminal complaint was filed on behalf of the applicant, alleging abuse of power, unlawful detention, endangerment, bodily harm, torture and other violations by the authorities. The public prosecutor initially dismissed the complaint based on lack of evidence, and the applicant appealed, arguing her evidence had not been properly assessed and that key witnesses – the applicant’s brother, her lawyer and a Turkish journalist – had not been heard. The appealed prosecutor ordered further investigation, including the hearing of those witnesses. However, the brother did not participate as he was outside Greece, but in Sweden as an asylum seeker. The prosecutor dismissed the case, reiterating the absence of direct proof of arrest of the applicant or refoulement, concluding that the police could not have conducted an unlawful return. He maintained that if the applicant had truly been detained in Greek territory, she would have been registered and allowed to apply for asylum.

The applicant submitted a complaint before the European Court of Human Rights.

Decision & reasoning:

Admissibility

The Government stated that the applicant had not exhausted domestic remedies. Nonetheless, the Court rejected this objection, as it found that the remedies cited by the Government – namely, criminal complaints and civil claims – were not effective in practice and declared the application admissible.

The ECtHR stressed that effective remedies in cases involving refoulement must have a suspensive effect, which the remedies in question did not – citing established case law, including M.S.S. v. Belgium and Greece and A.A. and Others v. North Macedonia. It reiterated, referring to M.K. and Others v. Poland, that remedies which cannot prevent return to a country where a person faces a real risk of ill-treatment are not considered effective under Article 3 ECHR. Similarly, it stated that once one remedy has been used, the use of another remedy with practically the same purpose is not required – citing Nicolae Virgiliu Tănase v. Romania. Regarding civil actions for compensation, the ECtRH emphasised that financial redress alone under Article 105 of the Greek Civil Code cannot remedy serious violations such as ill-treatment or threats to life, especially when there is no prosecution of those responsible – referring to Gäfgen v. Germany.

The ECtHR also highlighted that criminal complaints related to pushbacks in Greece were routinely dismissed for lack of evidence without proper investigations – as in the instant case. It also noted the reports from national and international bodies, which point to recurrent shortcomings that inhibit the effectiveness and diligence of criminal investigations into alleged refoulement. Therefore, the ECtHR considered that this raises serious doubts as to the effectiveness of the criminal remedy recommended by the Government.

The ECtHR also rejected the Government’s objections regarding the applicant’s victim status and the admissibility of the application, noting that these were closely tied to the facts of the case and should be assessed together with the merits.

Assessment of the evidence and establishment of the facts

The ECtHR's approach in the present case

The specific context of the case

The ECtHR emphasised the highly specific nature of the case since, unlike previous refoulement or collective expulsion cases where respondent governments had accepted at least the applicants’ presence on their territory, the Greek Government had rejected the applicant’s account as vague, inconsistent, and unsubstantiated, including her very presence on Greek soil and her subsequent refoulement to Türkiye. This complete denial by Greece raised complex issues regarding the establishment of facts and the allocation of the burden of proof.

The principles governing the standard and burden of proof

The ECtHR found that evidentiary standards developed in cases of secret detention were applicable – as in al-Hawsawi v. Lithuania e Abu Zubaydah v. Lithuania. Those often involve similar evidentiary difficulties and shifting burdens of proof. The ECtHR reaffirmed that while it applies the standard of proof “beyond reasonable doubt”, it would adopt an independent, holistic approach, evaluating all available evidence, but also relying on serious, specific, and consistent presumptions to reach conclusions.

The ECtHR emphasised that while it is initially up to the applicant to present evidences to support its case – referring to the principle of affirmanti incumbit probatio –, the burden of proof may shift to the respondent State if it fails to show essential documents or a satisfactory explanation of the events in situations where the facts are exclusively within the State’s control, such as detention. The ECtHR presumes that the harm suffered during such a period is attributable to the authorities, unless the Government provides a convincing alternative account. In cases where versions of events conflict, the ECtHR relies on a free and context-sensitive evaluation of the evidence, considering the nature of the allegation and treaty provisions.

Regarding refoulement or expulsion, the ECtHR reiterated that a lack of identification and individual processing by border authorities – frequently at the heart of the applicant’s complaint – should not be used to discredit their claim. If the applicant provides a detailed, consistent, and plausible account of the events, this may suffice to establish a prima facie case, triggering a reversal of the burden of proof – as in N.D. and N.T. v. Spain, A.A. and Others v. North Macedonia, and B.Y. v. Greece. The ECtHR also noted that in past cases, like M.H. and Others v. Croatia, it has considered corroborating evidence from human rights organisations and other national and international bodies, even in the absence of direct material proof.

The applicant had alleged that her refoulement occurred within a broader pattern of unlawful pushbacks in Greece. The ECtHR agreed to assess whether such a practice existed, as it could provide valuable contextual support for the claim. However, it underlined that even if a systematic practice were established, the applicant would still need to prove that her case was linked to it – in which case the burden of proof would be reversed and placed on the respondent Government.

The ECtHR pointed out that documents from a State refuting the presence of the individual concerned on its territory are not sufficient in themselves, unless corroborated by other evidence. The ECtHR also noted that documentary evidence from other States, especially the State of alleged return, as well as testimony gathered in domestic proceedings, may support an applicant’s version of events. Finally, the ECtHR commented that digital evidence may play a critical role where there is limited corroborative evidence, although its probative value depends on its authenticity and its relevance to the events alleged.

Application of this approach in the present case

Systematic practice in the Evros region of refoulement from Greece to Türkiye

The ECtHR found that there were serious indications of a systematic practice of unlawful returns by the Greek authorities to Türkiye, based on various reports from national and international bodies. While the Greek Government cited a report by the National Transparency Authority denying such practices, the ECtHR considered it insufficient, especially given concerns about the authority’s independence raised by the applicant and not contested by the Government.

Evidence provided by the applicant and other documents in the file

The ECtHR began by noting that the applicant’s account of events was detailed, specific, and consistent, and broadly matched the modus operandi described in such reports. However, to establish refoulement, it had to be shown not only that the applicant entered Greece and later reappeared in Türkiye, but also that there was a clear causal link between such events – namely, that Greek agents had forcibly returned her. Acknowledging the difficulty in proving secretive and undocumented events, the ECtHR proceeded to assess whether the applicant had a prima facie case capable of shifting the burden of proof to the Government.

On the documentary evidence, the ECtHR found that the absence of an official registration of the applicant as an asylum seeker did not undermine her credibility, since the core of her complaint concerned a refoulement that occurred precisely without identification. The ECtHR gave considerable weight to a decision by the Izmir Criminal Court and a report from the Uzunköprü Regional Prosecutor, which confirmed that the applicant had left Türkiye, been returned from abroad, and imprisoned for breaching a travel ban. Although not proving that the applicant did reach Greek territory, this documentary evidence and subsequent failure to contest by the Government were considered sufficient by the ECtHR to constitute a prima facie case of refoulement.

On the audiovisual material the applicant submitted, although the Government contested their probative value due to the lack of metadata and questioned whether the woman shown in the photographs was the applicant, the ECtHR noted the Government did not explain why the authorities did not examine the lawyer, the brother and the journalist’s mobile phones, which were available. It also noted the Government’s contradictory position, having denied but later acknowledged receipt of the applicant’s audiovisual material. Similarly, it considered the applicant’s presence in Greece established through photographs taken in Nea Vyssa, noting that the Government failed to prove whether the images predated that day. Some files, such as a video shared on Twitter by the journalist, did contain metadata indicating they were created on such a date. Finally, a forensic report concluded that the audiovisual evidence was authentic. The ECtHR found that the material aligned with the applicant’s narrative and further corroborated her account of events.

On the witness statements, the ECtHR noted inconsistencies between the lawyer’s and journalist’s testimonies. However, such inconsistencies were not considered decisive, as they both consistently confirmed the applicant’s arrest and her presence in Greek territory.

In conclusion, the ECtHR found that the applicant had submitted multiple elements supporting that she was subjected to refoulement, constituting a prima facie case. The burden, therefore, shifted to the Greek Government, but this failed to provide any convincing refutation. While acknowledging the absence of direct evidence, the ECtHR stressed that such evidence was understandably unavailable, given that the applicant’s phone had been confiscated and she was no longer in its possession during her refoulement. Crucially, it was established that the applicant was last seen in Greek custody on 4 May 2019 and reappeared the next morning in Türkiye, with no alternative explanation offered by the Greek State. On this basis, the ECtHR concluded that the applicant’s allegations were credible and proven beyond reasonable doubt.

Articles 3 and 13 ECHR

The applicant alleged that the Greek authorities returned her to Türkiye despite her expressed intention to seek asylum, exposing her to a real risk of inhuman and degrading treatment in violation of Article 3 ECHR, also claiming she lacked access to an effective remedy under Article 13 ECHR. The ECtHR found that the applicant had been returned to Türkiye without any individual assessment of the risks she faced, despite her expressed intention to seek asylum and fear of ill-treatment. Citing credible reports and D v. Bulgaria, it reaffirmed the existence of real risks for political opponents in Türkiye. It also held that the Greek authorities had failed to consider such a risk or provide her access to the asylum procedure. Therefore, the ECtHR concluded that the applicant was exposed to a real risk of inhuman and degrading treatment, and that she had no effective remedy to challenge her return, amounting to a violation of Articles 3 and 13 ECHR – and rejecting the Government’s objections based on the applicant’s alleged lack of victim status and abusive nature of her complaints.

Article 5 ECHR

The ECtHR found that the applicant had been unlawfully deprived of her liberty prior to her return to Türkiye, in violation of Article 5(1), (2) and (4) ECHR. It considered her detention part of the broader Greek modus operandi linked to refoulment using arrests, detentions, and even temporary enforced disappearance. It concluded that she had been arrested and held at the Neo Cheimonio border guard station without legal basis, information of the reasons for her arrest in her language, and access to a remedy to challenge her detention. The Government, which carried the burden of proof, failed to refute the claims. Thus, the ECtHR held that her detention was in breach of the procedural and substantive safeguards of Article 5 ECHR.

Articles 2, 3, and 13 ECHR

The ECtHR acknowledged that refoulements from Greece are often carried out in conditions likely to endanger life – such as being left adrift in inflatable boats – and that such returns frequently involve threats, humiliation, and physical violence. Although the applicant’s account aligned with this known modus operandi, the ECtHR concluded that she had not submitted sufficiently specific or consistent evidence to prove, beyond reasonable doubt, that she had been exposed to a real risk to life or treatment reaching the Article 3 ECHR threshold.

Articles 2, 3, and 13 ECHR

Nonetheless, the ECtHR reiterated that a finding of a violation of another provision is not a prerequisite for the application of Article 13 ECHR, referring to Sergey Denisov v. Russia. Similarly, it stated that the applicant’s complaints were not manifestly ill-founded and therefore required access to an effective domestic remedy under Article 13 ECHR. It highlighted that the effectiveness of a remedy does not require a guaranteed favourable outcome. However, such a remedy must be capable of preventing or redressing the alleged violations in practice. The Greek legal system did not offer such a remedy, and the investigation into the applicant’s complaint was inadequate. Accordingly, the ECtHR held that there had been a violation of Article 13 in conjunction with Articles 2 and 3 ECHR.

Outcome:

The ECtHR joined the Government's objections based on the applicant's lack of victim status and the abusive nature of the application and to reject them – unanimously;

Application declared admissible – unanimously;

Violation of Articles 3 and 13 taken together with Article 3 ECHR on account of the applicant's refoulement to Türkiye – unanimously;

Violation of Article 5(1), (2) and (4) ECHR on account of the applicant's detention prior to her refoulement to Türkiye – unanimously;

No violation of Articles 2 and 3 ECHR (risk to life and ill-treatment during removal) – by six votes to one;

Violation of Article 13 ECHR in conjunction with Articles 2 and 3 ECHR (risk to life and ill-treatment during removal) – unanimously;

The ECtHR held – unanimously,

a) respondent State was to pay the applicant, within three months from the date on which the judgment became final, €20,000 – plus taxes – in respect of non-pecuniary damage;

(b) from the expiry of that period until payment, this amount would be increased by simple interest at a rate equal to that of the marginal lending facility of the ECB applicable during that period, plus three percentage points;

Remainder of the application for just satisfaction dismissed – by six votes to one.

Since the applicant has not submitted any claim for costs and expenses incurred in the proceedings before the domestic courts or before the ECtHR, the ECtHR finds that there is no need to award the applicant any sum in this respect.

Judge Serghides made a statement of partial dissent concerning points 5 and 8 of the operative part of the judgment.

Subsequent proceedings:

No subsequent proceedings. This judgment became final on 30 June 2025 under Article 44(2) ECHR.

Other sources:

Rule 52 § 1 of the Rules of Court of the European Court of Human Rights (Assignment of applications to the Sections).

Rule 60 of the Rules of Court of the European Court of Human Rights (Claims for just satisfaction).

Rule 74 § 2 of the Rules of Court of the European Court of Human Rights (Contents of the judgment).

Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms – Article 4 (Prohibition of collective expulsion of aliens).

International Convention for the Protection of All Persons from Enforced Disappearance – Article 29 § 1.

Greek Ombudsman, Own-initiative investigation: Alleged pushbacks to Turkey of foreign nationals who had arrived in Greece seeking international protection – Interim Report (updated up to 31 December 2020), 25 June 2019.

Greek Ombudsman, National Mechanism for the Investigation of Arbitrary Incidents (EMIDIPA), Special Report 2021, June 2022.

Greek Ombudsman, National Mechanism for the Investigation of Arbitrary Incidents (EMIDIPA), Special Report 2022, October 2023.

Greek National Commission for Human Rights, Recording Mechanism of Incidents of Informal Forced Returns – Interim Report, January 2023.

Greek National Commission for Human Rights, Recording Mechanism of Incidents of Informal Forced Returns – Annual Report 2022, December 2023.

Greek National Commission for Human Rights, 2023 Annual Report, June 2024.

National Transparency Authority, Investigation Report No. OM 3/4 – Management of immigration flows: Allegations of pushbacks in Greece, May 2022.

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Greek Government on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 19 April 2018, CPT/Inf (2019) 4, 19 February 2019.

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Greek Government on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 13 to 17 March 2020, CPT/Inf (2020) 35, 19 November 2020.

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Greek Government on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 20 November to 1 December 2023, CPT/Inf (2024) 21, 12 July 2024.

Parliamentary Assembly of the Council of Europe, Pushback policies and practice in Council of Europe member States, Resolution 2299 (2019), 28 June 2019.

Parliamentary Assembly of the Council of Europe, Pushbacks on land and sea: illegal measures of migration management, Resolution 2462 (2022), 12 October 2022.

Council of Europe Commissioner for Human Rights, Report of the Commissioner for Human Rights of the Council of Europe Dunja Mijatović following her visit to Greece from 25 to 29 June 2018, CommDH(2018)24, 6 November 2018.

Council of Europe Commissioner for Human Rights, Letter to the Minister for Citizen Protection, the Minister for Migration and Asylum, and the Minister for the Navy and Island Policy of Greece, CommHR/DM/sf 019-2021, 3 May 2021.

Council of Europe Commissioner for Human Rights, Pushed beyond the limits: Four areas for urgent action to stop human rights violations at Europe’s borders – Recommendation, March 2022.

United Nations High Commissioner for Refugees (UNHCR), UNHCR calls on Greece to investigate pushbacks at sea and land borders with Turkey, Press Release, 12 June 2020.

United Nations High Commissioner for Refugees (UNHCR), UNHCR concerned by pushback reports, calls for protection of refugees and asylum-seekers, Press Release, 21 August 2020.

United Nations Committee Against Torture, Concluding observations on the seventh periodic report of Greece, CAT/C/GRC/CO/7, 2 September 2019.

United Nations Working Group on Arbitrary Detention, Visit to Greece – Report of the Working Group on Arbitrary Detention, A/HRC/45/16/Add.1, 29 July 2020.

United Nations Special Rapporteur on the Human Rights of Migrants, Report on means to address the human rights impact of pushbacks of migrants on land and at sea, A/HRC/47/30, 12 May 2021.

United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review: Greece, A/HRC/49/5, 6 January 2022.

United Nations Human Rights Council, Human rights violations at international borders: Trends, prevention and accountability, A/HRC/50/31, 26 April 2022.

United Nations Committee on Enforced Disappearances, Concluding observations on the report submitted by Greece under article 29 (1) of the Convention, CED/C/GRC/CO/1, 12 May 2022.