ECtHR, 16 January 2024, Alkhatib and Others v. Greece, Appl. No. 3566/16


Border Violence and Border (In)Justice: The Greek Coast Guard Before the Court of Strasbourg

Border Violence – Article 2 ECHR – Coast Guard – Maritime Operation – Death of the Applicant.

The ECtHR dealt with the death of a Syrian applicant which occurred during a maritime interception operation conducted by the Greek coast guard. It found a violation of Article 2 ECHR under both its substantive and procedural aspects: on the one hand, given the lack of an adequate legislative framework governing the use of potentially lethal force in maritime surveillance operations and the way in which, concretely, the operation itself was carried out; on the other, because of the multiple flaws in the investigations into the applicant’s death conducted by the national inquiring authorities. The judgment confirms a widespread phenomenon, which is worryingly unfolding at Europe’s doors: recurring episodes of use of violence and force at borders (“border violence”), which are then followed by the unwillingness to shed light on the facts, establish responsibility and punish, thereby preventing the pursue of justice (“border injustice”).

Francesco Gatta

A. Facts and Ruling

1. The Incident and the Death of the Applicants’ Relative

The applicants are three Syrian nationals, who complain about the death of their relative, provoked by the Greek Coast Guard, which opened fire against him and other migrants onboard a boat. More in detail, the case originates from an incident which occurred in the area of the Greek island of Pserimos, during a maritime interception operation conducted in the early morning of 22 September 2014. The Greek Coast Guard intercepted an unidentified motorboat, conducted by two Turkish nationals, which was illegally transporting Syrian migrants to Greece. Since the motorboat repeatedly disregarded the Coast Guard’s orders – to stop and identify itself – and engaged in rapid and dangerous maneuvers, the Greek authorities fired multiple gunshots: first, as warning shots (7 bullets), then as targeted shots aimed at the engine, in order to disable it and thus immobilize the boat (13 bullets).

It turned out that the motorboat had 14 passengers on board. Two Syrians were seriously injured. One of them, the applicants’ husband and father, had been shot in the head, and fell into a coma. He was transferred by helicopter to the Rhodes hospital, where he remained in intensive care for a few months. In August 2015 he was transferred to Sweden, where his wife and children were living (after having requested and obtained asylum). He was treated in the neuro-rehabilitation unit at Stockholm hospital, but he eventually died on 17 December 2015.

2. The Subsequent Investigations Conducted by the Greek Authorities

Following the incident, the Greek authorities launched a series of investigations, at the criminal and administrative disciplinary levels. As for the latter, the head of the Greek Coast Guard opened an inquiry, which led to the conclusion that no issue had arisen, in terms of administrative or disciplinary responsibility of the guards involved in the episode.

As for the criminal justice, the day after the maritime operation, the prosecutor at the Piraeus Naval Tribunal ordered a preliminary investigation into the possible criminal liability of the concerned coast guards, which later led to a decision to discontinue the proceedings. Criminal proceedings were also brought against the Turkish nationals who were conducting the motorboat: they were convicted by the Rhodes Court of Appeal for illegal entry into the national territory and illegal trafficking.

3. Complaints and Judgment of the Court

Before the European Court of Human Rights (hereinafter, “ECtHR” or the “Court”), the applicants alleged a breach of Article 2 of the European Convention on Human Rights (hereinafter, “ECHR”) from two perspectives: given the excessive and unnecessary use of force by the coast guard on the one hand (substantive limb), and given the ineffective, subsequent investigation conducted by the Greek authorities on the other (procedural limb).

The Court, by unanimity, found a violation of Article 2 under both aspects, and decided to award the applicants EUR 80,000 jointly, in respect of moral damages related to the death of their father and husband.

B. Discussion

1. The Banality of Border Violence

It is no longer a mystery that vast portions of the EU borders have become areas outside the law (or zones de non-droit, according to Jean-Yves Carlier and François Crépeau). The rule of law is rapidly deteriorating and severe human rights violations often remain unpunished or even unnoticed.

In this framework, one alarming development is the increasing resort to violence as a means of border control. Acts of intimidation, aggression, brutality, coercion and excessive use of force are on the rise along the European external perimeter, as acknowledged on multiple occasions by reliable and authoritative national and international observers. To mention a few examples, in her 2022 Recommendation “Pushed beyond the limits: Four areas for urgent action to end human rights violations at Europe’s borders”, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, expressed great concern for the “shocking violence and humiliating treatment” at the borders, as well as for acts “even putting the lives of people at risk” (p. 7). The Border Violence Monitoring Network, a coalition of NGOs, has repeatedly highlighted the “unprecedented rise in violence” in EU borders, contributing to raising awareness and foster the debate within the wider public opinion. Within the EU, the European Citizens’ Initiative (ECI) Stop Border Violence was launched at the end of 2022, to make sure that “the use of violence, torture and inhuman and degrading treatment is banned at EU borders” (see the European Commission’s dedicated info and decision to register the ECI).

In such a problematic context, when it comes to Greece, the documentation concerning violations of human rights at borders is countless. To limit to a few, recent examples, one can refer to the exhaustive 2021 report “Greece: Violence, Lies, and Pushbacks” by Amnesty International; the letter by the Council of Europe Commissioner for human rights, addressed in 2021 to the Greek government regarding ill-treatment of migrants; the Resolution of the European Parliament, adopted at the end of 2023, where it expresses “severe concern regarding the serious and persistent allegations made against Greek authorities in relation to pushbacks and violence against migrants” (§ 13). Lastly, the Report Violence Within State Borders: Greece, released in January 2024 by the Border Violence Monitoring Network, confirms the trend, by providing relevant evidence of physical, material, and structural violence against people on the move within the Greek State borders.

2. Border Violence Before Strasbourg

The increasing use of violence in the context of border control has been also certified by the ECtHR, which has progressively developed a new line of “border violence case law.” In a number of recent judgments, indeed, the Court has been called to assess the compatibility with Articles 2 (right to life) and 3 (prohibition of torture, inhuman and degrading treatment) ECHR of conducts put in place at borders vis-à-vis migrants. These provisions imply negative and positive obligations for the State: refraining from acts or omissions impacting on the life and safety of the applicants on the one hand, and taking action to investigate suspicious deaths and/or allegations of torture or other forms of ill-treatment on the other. The Court, thus, assesses the respect of States’ obligations from both a substantive and procedural perspective.

The “border violence case law” is growing, being mainly fueled by post-2015 episodes of violent pushbacks and unlawful expulsions, relating to border closures and restrictive approaches adopted by governments following the peak of the “European refugee crisis.” Geographically, it involves States located at the external borders of the EU, such as Italy and Greece in the South, or Hungary and Croatia in the East. Worryingly, this case law concerns episodes of violence against migrants put in place by both private individuals acting as unofficial “watchdogs” of national borders (see R.N. v. Hungary, where a Pakistani applicant was physically assaulted by members of the “field guards” patrolling the Hungarian-Serbian borders), and by official border guards and police officers (see Alhowais v. Hungary, regarding the use of force and, in particular, the throwing of stones, the spraying of tear gas and the deployment of police dogs against the Syrian applicant). It further relates to different types of borders, such as air borders (see A.E. and Others v. Italy, regarding the beating of the Sudanese applicants by police officers at the airport, during an attempt to remove them to their country of origin) ; land borders (see M.H. and Others v. Croatia) and water borders (see Alhowais v. Hungary, regarding the crossing of a river marking the border between Serbia and Hungary, and Alkhatib and Others v. Greece, analyzed here, for the attempt to cross sea borders between Turkey and Greece).

This case law is significant because, in addition to actual acts of violence and excessive use of force committed at borders, it reveals the inability – or, most likely, the unwillingness – of the concerned States to investigate the death or ill-treatment of migrants and let the truth emerge. The issue of border violence, thus, is coupled with one of border (in)justice. The Court, in fact, has recently found several, serious violations of positive, procedural obligations stemming from Articles 2 and 3 ECHR with regard to acts of violence perpetrated against migrants.

For instance, in A.E. and Others v. Italy, mentioned above, the ECtHR declared a violation of Article 3 because no investigation was carried out into one of the applicant’s allegations of beating by police officers during the attempt to remove him, despite the fact that he made “a prima facie case that his injuries had resulted from the use of force by the police” (§ 92). In Alhowais v. Hungary, also cited above (for an analysis, see Silvia Rizzuto Ferruzza), investigations did take place, but were ineffective, due to the numerous deficiencies and inconsistencies in the assessment by the prosecuting authorities of evidence regarding the death of the applicant’s brother, who drowned during a border control operation at a river on the Hungarian-Serbian border. The Court concluded that “the manner in which the Hungarian justice system operated in response to the event did not secure the full accountability of State officials or authorities for their role in conducting the border control operation” (§ 84).

Similar conclusions were reached in M.H. and Others v. Croatia, concerning the return of an Afghan family to Serbia by walking along train tracks, as ordered by the Croatian border police, which resulted in the death of a child hit by a train (see our analysis). The Court found a violation of Article 2 ECHR, under its procedural limb, given the ineffective investigation into the child’s death, thereby unveiling a broader framework of impunity, lack of transparency and willingness to cover up the police’s conduct.

3. The Greek Case: The Responsibility of the Coast Guard and the Ineffectiveness of Investigations

The case Alkhatib and Others sheds light on the responsibility of the Greek Coast Guard in the context of maritime operations. As it occurred in the case Safi and Others v. Greece, decided in July 2022 and concerning the sinking of a boat resulting in the death of 11 people, the Court found again a violation of Article 2 ECHR under both its substantive and procedural aspects.

Before examining the merits, it made two important points as to the admissibility of the application. First, it considered as not strictly necessary to reflect on the direct causal link between the shots fired by the Greek Coast Guard and the death of the applicant, which occurred at a later stage, while being treated in a hospital in Sweden. What matters for the Court is the use of force, which is potentially lethal as it puts the applicant’s life at risk. In the case at hand, no doubts arise as to the fact that, objectively, the life of the applicant was put at risk, regardless of the actual and direct connection between the shot and the loss of his life. Article 2 is thus fully applicable. Second, the Court dismissed the Greek government’s objection as to the exhaustion of domestic remedies. It observed that it was for the national, competent authorities to act in a timely and effective manner, in order to investigate the matter, assess the responsibility of agents and, if need be, punish them. Other remedies, such as civil actions for damages, could not be imposed on the applicants as an effective judicial pathway to exhaust.

As to the merits, regarding the substantive aspect of Article 2, the Court reiterated that the use of force must be proportionate and absolutely necessary in order to achieve the objective pursued. Building on this, it found Greece to be responsible under three different perspectives.

First, and in general, the Greek State failed to put in place an adequate legislative framework governing the use of potentially lethal force in maritime surveillance operations. The domestic, pertinent legal tools, indeed, lacked clarity, precision, transparency and foreseeability, failing to properly regulate the conduct of coast guards, especially with regard to a too uncertain regulation of the use of firearms.

Second, and specifically, the Court found that the maritime operation in question was problematic from the point of view of its organization and actual execution. The Coast Guard, in particular, could have assumed that the vessel was carrying migrants, given the significant migratory flows between Turkey and Greece at the time (i.e., September 2014, before the EU-Turkey Statement of March 2016, which significantly reduced migratory movements in the area). It nevertheless failed to exercise the necessary vigilance to ensure that any risk to life would be minimized. Additionally, the Greek guards used excessive force, by firing 20 bullets, with portable firearms, and aiming at the engine of the motorboat: a practice that is extremely dangerous per se (on dangerous rescue and interception practices, including firing at or in the vicinity of boats in distress, see the 2021 thematic report by UNHCR “Lethal Disregard, Search and rescue and the protection of migrants in the central Mediterranean Sea,” notably pp. 14 and following).

Third, the Court considered that the government had not proved that the use of force was “absolutely necessary” within the meaning of Article 2(2) ECHR, in the light of the aim pursued, that is, border control and fight against irregular migration. In the case at hand, the use of force could not be regarded as proportionate and justified, since the specific objective of the maritime surveillance operation was to stop the motorboat and arrest its drivers.

Regarding the procedural aspect, the Court recalled that Article 2 ECHR requires States to conduct an effective investigation into the death of the applicant, which must aim to establish the facts, determine whether the use of force by a public official was justified, and if so, identify and sanction the person responsible. The ECtHR excluded that the investigations carried out by the Greek authorities had been based on a meticulous, objective and impartial analysis of all the relevant factors. In particular, no specific inquiries were conducted with regard to the two vessels involved in the incident; a ballistic report was not even requested in order to determine the dynamics of the shooting; some key witnesses had not been questioned or heard; a detailed forensic-medical expertise on the injury suffered by the applicant had not been realized. Such procedural flaws and deficiencies in terms of elucidation of facts and collection of evidence led the Court to conclude that the investigation was not capable of establishing the cause of death or responsibility of State agents, thus contravening Article 2 ECHR. Similar findings were reached in Safi and Others v. Greece, where several shortcomings in the proceedings had equally occurred, with the consequence that Greek authorities had not carried out a thorough and effective investigation into the maritime operation of the Coast Guard in which the boat carrying migrants had sunk.

4. Concluding Remarks

The judgment in Alkhatib and Others adds a new chapter to the “border violence case law” of the ECtHR. It essentially highlights and confirms two problematic issues: the recurrent use of excessive and unnecessary force in the management of border controls, and the numerous flaws in the subsequent attempt to establish the truth and responsibility and, ultimately, obtain justice.

Border violence and border (in)justice, thus, are consolidating, being often surrounded by impunity, lack of commitment to elucidate facts and punish those responsible for serious violations of Articles 2 and 3 ECHR. The case Alkhatib and Others reveals such issues with regard to Greece, but the same problems concern other frontline States, as confirmed by the ECtHR itself and by numerous international and national observers. What is more, the questions of border violence and border justice affect not only EU Member States, but also the EU Agency Frontex: an impressive amount of evidentiary materials has been collected with regard to its potential involvement in border operations leading to human rights violation. Frontex, which cannot be taken before the ECtHR (unless and until the EU signs the ECHR), has been summoned before the EU courts on multiple occasions. It has, however, always escaped responsibility, despite many signs of its alleged contribution to human rights violations at European borders, and especially in Greece.

C. Suggested Reading

To read the case: ECtHR, 16 January 2024, Alkhatib and Others v. Greece, Appl. No. 3566/16.

Case law:

Doctrine :

Other Materials:


To cite this contribution : Francesco Gatta, “Border Violence and Border (In)Justice: The Greek Coast Guard Before the Court of Strasbourg”, Cahiers de l’EDEM, January 2024.


Publié le 01 février 2024